Section 67 - Retrospective operation of law
Extract of legislation
| 67 | Retrospective operation of law | |
| (1) | An applicant for access to records about himself, within the meaning of section 33, shall be entitled to receive access subject to this Act to any such record notwithstanding that the record came into existence at any time prior to the date of commencement of this section. | |
| (2) | An applicant for access to a document other than those referred to in subsection (1) shall be entitled to receive access, subject to this Act, to any such document provided that it came into existence not more than five years prior to the date of commencement of this section. | |
| (3) | A Minister shall in his or her report under section 64 include advice regarding the practicability of extending the period of retrospective access provided under subsection (2) of this section. | |
| (4) | Subsections (1) and (2) apply in relation to access to a document of an agency that is a council as if a reference to the date of commencement of this section were a reference to the date of commencement of section 25 of the Freedom of Information (Amendment) Act 1993. | |
Generally, there is a presumption that law does not have retrospective effect.5 This would mean that a person is generally not able to receive access to a document under the Act if the document was created before the Act commenced (the Act commenced on 5 July 1983 except for Part II which commenced on 5 July 1984).6
However, section 67 changes this general presumption so that a person can seek access to a document under the Act where the document:
- was created on 5 July 1978 or later in relation to agencies (excluding councils) and Ministers;7
- was created on 8 June 1989 or later in relation to councils; 8
- is about the person requesting access to it irrespective of when the document was created (it does not matter how old a document is, if it is about the person applying for access, they have a right to seek access to it).
An applicant should also bear in mind that agencies and Ministers have recordkeeping obligations under the Public Records Act 1973 (Vic). Under this Act, the Keeper of Public Records issues Retention and Disposal Authorities (RDAs), which are legal instruments that authorise agencies and Ministers to dispose of (e.g., delete or destroy) public records. This may mean that an agency created a document between 5 July 1978 and 5 July 1983, however it appropriately destroyed the document under an RDA.
For more information on RDAs, visit PROV’s website.
Similarly, the Public Record Office Victoria may hold, or have custody of, certain documents.
For more information on accessing documents held by PROV, see:
- section 14 – Part not to apply to certain documents;
- section 15 – Documents in the Public Record Office; and
- Public Record Office Victoria website.
- Maxwell v Murphy (1957) 96 CLR 261.
- This is per section 1(3) of the Act, which states Part II shall come into operation on a day 12 months from the date of the commencement provided for in section 1(2).
- Freedom of Information Act 1982 (Vic), section 67(2).
- Freedom of Information Act 1982 (Vic), section 67(4).
- Maxwell v Murphy (1957) 96 CLR 261.
- This is per section 1(3) of the Act, which states Part II shall come into operation on a day 12 months from the date of the commencement provided for in section 1(2).
- Freedom of Information Act 1982 (Vic), section 67(2).
- Freedom of Information Act 1982 (Vic), section 67(4).
