6. Freedom of information

[ National Law & Regulations, Section 264, Regulations 204–211 ] The Freedom of Information Act 1982 (Cth), as modified by the National Law (the FOI Act), applies to documents held by ACECQA and the regulatory authorities for the purposes of the NQF. It provides individuals with a legally enforceable right to access such documents and to seek to correct or annotate any information about them held in such documents if the information is incomplete, incorrect, out-of-date or misleading.

Under the National Law and Regulations, ACECQA and the regulatory authorities must give an individual:

• access to a document, on request, except to the extent that the document is exempt under the FOI Act
• access to a conditionally exempt document, on request, unless access to the document would, on balance, be contrary to the public interest.

The FOI Act only applies to information contained in a document (including electronic records), and only to documents in existence. The FOI Act does not require ACECQA or the regulatory authorities to create documents to supply information falling within the scope of a request and it does not regulate information that is already available for a fee.

6.1 Applications under the FOI Act

An application under the FOI Act must:

• be made in writing
• state that the application is made for the purposes of the FOI Act
• provide enough information to reasonably identify the document
• include a postal or email address to which notices may be sent.

The FOI Act imposes strict timeframes on ACECQA and the regulatory authorities in processing FOI requests.

6.2 Review of FOI decisions and complaints about FOI

If an individual disagrees with an FOI access decision, they can seek an internal review of the decision, or apply to the National Education and Care Services FOI Commissioner for review of the decision. If a person is not satisfied with the outcome of an internal review, they can also seek review by the National Education and Care Services FOI Commissioner.

The National Law also provides individuals with a right to complain to the National Education and Care Services FOI Commissioner if they feel that a regulatory authority or ACECQA has mishandled a request for access to a document.

If an individual is unhappy with a review by the National Education and Care Services FOI Commissioner, they may seek a further review through the appropriate administrative tribunal.

6.3 Disclosure of information

Powers and principles

[ National Law, Sections 271–273 ] Jurisdictions (including state and territory regulatory authorities) and ACECQA have broad powers to disclose information about an education and care service to each other and other government departments and public authorities. Importantly, efficient, collaborative and streamlined communication between all parties furthers the objectives of the National Law, including to ensure the safety, health and wellbeing of children attending education and care services.  

Information is disclosed between regulatory authorities, ACECQA and Commonwealth in accordance with the National Law for the purposes of:

• promoting the objectives of the NQF
• assisting authorities and other government departments to perform or exercise their functions and powers under the National Law
• research or the development of national, state or territory policy with respect to education and care services
• the funding of education and care services
• the payment of benefits or allowances to persons using education and care services
• compliance, monitoring and enforcement, including with respect to working with children laws.

Other disclosure obligations

The National Law requires a regulatory authority to disclose to other regulatory authorities the suspension or cancellation of a working with children check, working with children card or teacher registration of a nominated supervisor. It also allows a regulatory authority to disclose a prohibition notice issued under the National Law to the head of the government department responsible for administering the working with children law in that jurisdiction.

Information disclosed for the purpose of research or development of policy relating to education and care services must not include information that could lead to the identification of an individual, other than an approved provider, a nominated supervisor, a family day care educator who has been suspended, a person issued with a prohibition notice, or a person being prosecuted for an offence under the National Law.

The National Law also allows a regulatory authority to disclose information to an education and care service where the regulatory authority considers that the approved provider reasonably requires the information to comply with obligations under the National Law. An approved provider may request the regulatory authority to disclose whether a person is subject to a prohibition notice issued under the National Law, or whether a family day care educator has been suspended from providing education and care as part of a family day care service.