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FREEDOM OF INFORMATION AMENDMENT BILL 1983

Order of the Day read for the adjourned debate on the motion of the Attorney-General (Senator Gareth Evans)-That this Bill be now read a second time.

Debate resumed.

Question-put and passed.

Bill read a second time.

The Senate, according to Order, resolved itself into Committee for the consideration of the Bill.

In the Committee

Clauses 1 to 3, by leave, taken together and agreed to.

Clause 4 read- Senator Haines moved an amendment, viz: Page 3, proposed new sub-section 7 (2A), line 19, after ''or'', insert ''is relevant to the work of and''.

Debate ensued.

Ordered-That further consideration of clause 4, and of the amendment moved thereto by Senator Haines, be postponed.

Clauses 5 and 6, by leave, taken together and agreed to.

Clause 7 read- On the motion of Senator Gareth Evans the following amendment was agreed to: Page 4, paragraph (a), line 25, insert ''unless the document contains information relating to the personal affairs of a person (including a deceased person)'' after ''of that Act''.

Senator Haines moved an amendment, viz: Page 4, paragraph (b), line 26, leave out ''5'', insert ''25''.

Debate ensued.

Question-That the figure proposed to be left out be left out-put and negatived.

Clause 7, as amended, agreed to.

Clauses 8 and 9, by leave, taken together and agreed to.

Clause 10 read- On the motion of Senator Haines the following amendment was debated and agreed to: Page 5, after paragraph (a), insert the following new paragraph: ''(ab) by inserting in sub-section (1) 'that the request has been received, as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, and' after 'notified';''.

Clause 10, as amended, further debated and agreed to.

Clauses 11 and 12, by leave, taken together and agreed to.

Clause 13 read- Senator Haines moved an amendment, viz: Page 7, paragraph (c), after proposed new sub-paragraph 26 (1) (c) (iii), insert the following sub-paragraph: ''(iv) the reason why access cannot be given, otherwise than as required by this Act,''.

Debate ensued.

Ordered-That further consideration of clause 13, and of the amendment moved thereto by Senator Haines, be postponed.

Clauses 14 and 15, by leave, taken together and agreed to.

Clause 16 read- Senator Missen moved an amendment, viz: Page 8, line 12, leave out ''sub-section (1)'', insert ''sub-sections (1), (2) and (3)''.

Debate ensued.

Question-That the words proposed to be left out be left out-put and negatived.

Clause 16 agreed to.

Clause 17 read- Senator Missen moved an amendment, viz: Pages 8 and 9, proposed new sub-sections 33A (2) and (3), line 38 (page 8) to line 7 (page 9), leave out the proposed sub-sections.

Question-That the words proposed to be left out be left out-put and negatived.

Clause 17 agreed to.

Clause 18 read- On the motion of Senator Gareth Evans the following amendment was agreed to:

Page 9, proposed new sub-section 34 (1A), lines 28 to 31, leave out ''any document (other than a document that is an official record of the Cabinet or a copy of, or of part of, such an official record or that contains an extract from such an official record) by reason only of purely factual material contained in the document'', substitute ''a document (in this sub-section referred to as a 'relevant document') that is referred to in paragraph (1) (a), or that is referred to in paragraph (1) (b) or (c) and is a copy of, or of part of, or contains an extract from, a document that is referred to in paragraph (1) (a), to the extent that the relevant document contains purely factual material''.

Clause 18, as amended, agreed to.

Senator Missen moved an amendment, viz: Page 9, after clause 18, insert the following new clause: ''18A. Section 34 of the Principal Act is amended by omitting sub-sections (2), (3), (4) and (5).''.

Question-That the proposed new clause be inserted in the Bill-put and negatived.

Clause 19 read- On the motion of Senator Gareth Evans the following amendment was agreed to: Pages 9 and 10, proposed new sub-section 35 (1A), line 39 (page 9) to line 2 (page 10), leave out ''any document (other than a document that is an official record of the Executive Council or a copy of, or of part of, such an official record or that contains an extract from such an official record) by reason only of purely factual material contained in the document'', substitute ''a document (in this sub-section referred to as a 'relevant document') that is referred to in paragraph (1) (a), or that is referred to in paragraph (1) (b) or (c) and is a copy of, or of part of, or contains an extract from, a document that is referred to in paragraph (1) (a), to the extent that the relevant document contains purely factual material''.

Clause 19, as amended, agreed to.

Senator Missen moved an amendment, viz: Page 10, after clause 19, insert the following new clauses: ''19A. Section 35 of the Principal Act is amended by omitting sub-sections (2), (3), (4) and (5).

''19B. Section 36 of the Principal Act is amended by omitting sub-sections (3) and (4).''.

Question-That the proposed new clauses be inserted in the Bill-put and negatived.

Clauses 20 to 22, by leave, taken together and agreed to.

On the motion of Senator Gareth Evans the following amendment was agreed to:

Page 10, after clause 22, insert the following new clause:

Documents containing material obtained in confidence ''22A. Section 45 of the Principal Act is amended by adding at the end thereof the following sub-section:

'(2) Sub-section (1) does not apply to any document to the disclosure of which paragraph 36 (1) (a) applies or would apply, but for the operation of sub-section 36 (2), (5) or (6), being a document prepared by a Minister, a member of the staff of a Minister, or an officer or employee of an agency, in the course of his duties, or by a prescribed authority in the performance of its functions, for purposes relating to the affairs of an agency or a Department of State.'.''.

Clauses 23 and 24, by leave, taken together and agreed to.

On the motion of Senator Gareth Evans the following amendment was agreed to:

Page 11, after clause 24, insert the following new clause:

Review of requests for amendments ''24A. Section 51 of the Principal Act is amended-

(a) by inserting before paragraph (1) (a) the following new paragraph:

'(aa) section 54 has effect as if all the words in sub-section (1) of that section after ''agency'' (second occurring) and before ''the applicant'' (second occurring) were omitted;'; and

(b) by omitting paragraph (1) (c) and substituting the following paragraph:

'(c) paragraph 56 (1) (b) has effect as if ''relevant period, in relation to that request, for the purposes of section 19'' were omitted and ''period of 30 days'' were substituted;'.''.

Senator Missen moved an amendment, viz: Page 11, after new clause 24A, insert the following new clause: ''24B. The Principal Act is amended by inserting after Part V the following Part:

PART VA-ROLE OF THE OMBUDSMAN Interpretation '52A. In this Part- (a) a reference to the taking of action has the same meaning as it has for the purposes of the Ombudsman Act 1976; and

(b) action shall be deemed to have been taken by an agency in the circumstances in which it would be deemed to be so taken for the purposes of the Ombudsman Act 1976.

Complaints to Ombudsman '52B. (1) Subject to this Act, a person may complain to the Ombudsman concerning action taken by an agency or by a Minister in the exercise of powers or the performance of functions under this Act.

'(2) Notwithstanding anything contained in this Act or in sub-section 6 (3) of the Ombudsman Act 1976 but subject to sub-section 6 (2) of that Act, the exercise of the powers of the Ombudsman under the Ombudsman Act 1976 in respect of matters arising under this Act is not precluded or restricted by reason of the rights conferred on persons by this Act to make applications to the Tribunal.

'(3) Where a complaint is made to the Ombudsman under the Ombudsman Act 1976 concerning action taken by an agency in the exercise of powers or the performance of functions under this Act, an application to the Tribunal for a review of the decision shall not be made before the Ombudsman has informed the applicant of the result of the complaint in accordance with section 12 of the Ombudsman Act 1976.

'(4) Nothwithstanding anything contained in the Ombudsman Act 1976, a report under that Act to a complainant in respect of a complaint arising out of a request under this Act shall not contain information of the kind referred to in sub-section 25 (1) of this Act.

Ombudsman shall designate a Deputy Ombudsman for freedom of information matters '52C. (1) The Ombudsman shall, by notice published in the Gazette, designate a Deputy Ombudsman as the Deputy Ombudsman for freedom of information matters.

'(2) In relation to any action taken by a Minister or an agency in the exercise of any power or the performance of any function conferred by this Act, the Deputy Ombudsman for freedom of information matters has all the powers, and may exercise all the functions, of the Commonwealth Ombudsman under the Ombudsman Act 1976, other than the power of the Commonwealth Ombudsman to report to the Parliament under section 17 or 19 of that Act.

'(3) Nothing in this section prevents the exercise of a power or the performance of a function by the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to action of the kind referred to in sub-section (2).

'(4) In this section, a reference to the Ombudsman Act 1976 shall be construed- (a) unless paragraph (b) applies-as a reference to that Act as modified in the manner provided in sections 52A and 52B of this Act; or

(b) in relation to a complaint concerning action taken by a Minister-as a reference to the Ombudsman Act 1976 as modified and adapted in accordance with the regulations made under section 52F.

Reports made by the Ombudsman '52D. (1) Where, in the course of an investigation by the Ombudsman in relation to action taken by an agency in the exercise of powers or the performance of functions under this Act-

(a) the Ombudsman has referred evidence concerning an officer to a Minister or to a principal officer under sub-section 8 (10) of the Ombudsman Act 1976; and

(b) that officer is employed under the Public Service Act 1922,

the Ombudsman shall furnish a copy of that evidence to the Public Service Board.

'(2) Where, after an investigation by the Ombudsman in relation to action taken by a Department in the exercise of powers or the performance of functions under this Act, a report is made to the Department by the Ombudsman under sub-section 15 (2) of the Ombudsman Act 1976, the Ombudsman shall furnish a copy of the report to the Public Service Board.

'(3) Each annual report required to be submitted to the Minister by the Ombudsman under paragraph 19 (1) (a) of the Ombudsman Act 1976, and each additional report submitted to the Minister by the Ombudsman under sub-section 19 (2) of that Act-

(a) shall include a report on the operations of the Ombudsman during the year, or the part of a year, to which the report relates with respect to complaints made to the Ombudsman or investigations commenced or completed by the Ombudsman concerning action taken by agencies or by a Minister in the exercise of powers or the performance of functions conferred by this Act; and

(b) may include- (i) such observations as the Ombudsman sees fit to make concerning the operation of this Act during the year, or the part of a year, to which the report relates; and

(ii) such recommendations as the Ombudsman sees fit to make concerning ways in which public access to documents of agencies or to official documents of Ministers might be better secured.

Documents of agencies claimed to be exempt under section 33, 34, 35 or 36 '52E. Where- (a) the Ombudsman has commenced an investigation of a decision made under this Act not to grant a request for access to a document; and

(b) a certificate is furnished to the Ombudsman under paragraph 9 (3) (a), (c) or (d) of the Ombudsman Act 1976 in relation to that investigation,

the certificate shall not be taken to affect the right of the Ombudsman to seek from any person the reasons for any decision made under this Act that the document is an exempt document or to require any person to furnish any information or to answer any questions concerning that decision.

Ombudsman may represent persons in proceedings before the Tribunal '52F. (1) The Ombudsman may represent, or arrange for another person to represent, any person who makes application to the Tribunal, under section 55 of this Act, for review of a decision, not being a decision made under sections 33 and 33A of this Act in the proceedings before the Tribunal pursuant to that application, if the Ombudsman is of the opinion, in all the circumstances of the case, that it is reasonable for him to do so.

'(2) Without limiting the generality of the matters to which the Ombudsman may have regard in deciding whether to represent an applicant in proceedings before the Tribunal under section 55, the Ombudsman shall have regard to-

(a) the importance of the principle involved in the matter under review;

(b) the likelihood that the proceedings will establish a precedent in future proceedings;

(c) the financial means of the applicant;

(d) the applicant's prospect of success; and

(e) the reasonableness of the decision under review.'.''.

Debate ensued.

Senator Missen, by leave, amended his amendment to read as follows: Page 11, after new clause 24A, insert the following new clause: ''24B. The Principal Act is amended by inserting after Part V the following Part:

PART VA-ROLE OF THE OMBUDSMAN Interpretation '52A. In this Part- (a) a reference to the taking of action has the same meaning as it has for the purposes of the Ombudsman Act 1976; and

(b) action shall be deemed to have been taken by an agency in the circumstances in which it would be deemed to be so taken for the purposes of the Ombudsman Act 1976.

Complaints to Ombudsman '52B. (1) Subject to this Act, a person may complain to the Ombudsman concerning action taken by an agency in the exercise of powers or the performance of functions under this Act.

'(2) Notwithstanding anything contained in this Act or in sub-section 6 (3) of the Ombudsman Act 1976 but subject to sub-section 6 (2) of that Act, the exercise of the powers of the Ombudsman under the Ombudsman Act 1976 in respect of matters arising under this Act is not precluded or restricted by reason of the rights conferred on persons by this Act to make applications to the Tribunal.

'(3) Where a complaint is made to the Ombudsman under the Ombudsman Act 1976 concerning action taken by an agency in the exercise of powers or the performance of functions under this Act, an application to the Tribunal for a review of the decision shall not be made before the Ombudsman has informed the applicant of the result of the complaint in accordance with section 12 of the Ombudsman Act 1976.

'(4) Notwithstanding anything contained in the Ombudsman Act 1976, a report under that Act to a complainant in respect of a complaint arising out of a request under this Act shall not contain information of the kind referred to in sub-section 25 (1) of this Act.

Ombudsman shall designate a Deputy Ombudsman for freedom of information matters '52C. (1) The Ombudsman shall, by notice published in the Gazette, designate a Deputy Ombudsman as the Deputy Ombudsman for freedom of information matters.

'(2) In relation to any action taken by an agency in the exercise of any power or the performance of any function conferred by this Act, the Deputy Ombudsman for freedom of information matters has all the powers, and may exercise all the functions, of the Commonwealth Ombudsman under the Ombudsman Act 1976, other than the power of the Commonwealth Ombudsman to report to the Parliament under section 17 or 19 of that Act.

'(3) Nothing in this section prevents the exercise of a power or the performance of a function by the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to action of the kind referred to in sub-section (2).

'(4) In this section, a reference to the Ombudsman Act 1976 shall be construed as a reference to that Act as modified in the manner provided in sections 52A and 52B of this Act.

Reports made by the Ombudsman '52D. (1) Where, in the course of an investigation by the Ombudsman in relation to action taken by an agency in the exercise of powers or the performance of functions under this Act-

(a) the Ombudsman has referred evidence concerning an officer to a Minister or to a principal officer under sub-section 8 (10) of the Ombudsman Act 1976; and

(b) that officer is employed under the Public Service Act 1922,

the Ombudsman shall furnish a copy of that evidence to the Public Service Board.

'(2) Where, after an investigation by the Ombudsman in relation to action taken by a Department in the exercise of powers or the performance of functions under this Act, a report is made to the Department by the Ombudsman under sub-section 15 (2) of the Ombudsman Act 1976, the Ombudsman shall furnish a copy of the report to the Public Service Board.

'(3) Each annual report required to be submitted to the Minister by the Ombudsman under paragraph 19 (1) (a) of the Ombudsman Act 1976, and each additional report submitted to the Minister by the Ombudsman under sub-section 19 (2) of that Act-

(a) shall include a report on the operations of the Ombudsman during the year, or the part of a year, to which the report relates with respect to complaints made to the Ombudsman or investigations commenced or completed by the Ombudsman concerning action taken by agencies in the exercise of powers or the performance of functions conferred by this Act; and

(b) may include- (i) such observations as the Ombudsman sees fit to make concerning the operation of this Act during the year, or the part of a year, to which the report relates; and

(ii) such recommendations as the Ombudsman sees fit to make concerning ways in which public access to documents of agencies or to official documents of Ministers might be better secured.

Documents of agencies claimed to be exempt under section 33, 34, 35 or 36 '52E. Where- (a) the Ombudsman has commenced an investigation of a decision made under this Act not to grant a request for access to a document; and

(b) a certificate is furnished to the Ombudsman under paragraph 9 (3) (a), (c) or (d) of the Ombudsman Act 1976 in relation to that investigation,

the certificate shall not be taken to affect the right of the Ombudsman to seek from any person the reasons for any decision made under this Act that the document is an exempt document or to require any person to furnish any information or to answer any questions concerning that decision.

Ombudsman may represent persons in proceedings before the Tribunal '52F. (1) The Ombudsman may represent, or arrange for another person to represent, any person who makes application to the Tribunal, under section 55 of this Act, for review of a decision, not being a decision made under sections 33 and 33A of this Act in the proceedings before the Tribunal pursuant to that application, if the Ombudsman is of the opinion, in all the circumstances of the case, that it is reasonable for him to do so.

'(2) Without limiting the generality of the matters to which the Ombudsman may have regard in deciding whether to represent an applicant in proceedings before the Tribunal under section 55, the Ombudsman shall have regard to-

(a) the importance of the principle involved in the matter under review;

(b) the likelihood that the proceedings will establish a precedent in future proceedings;

(c) the financial means of the applicant;

(d) the applicant's prospect of success; and

(e) the reasonableness of the decision under review.'.''.

Debate continued.

Question-That the proposed new clause be inserted in the Bill-put and passed.

Clauses 25 to 28, by leave, taken together and agreed to.

Clause 29 read- Senator Missen moved an amendment, viz: Pages 11 and 12, line 32 (page 11) to line 32 (page 12), leave out the clause, insert the following new clauses: ''29. Section 58 of the Principal Act is amended- (a) by omitting sub-section (1) and substituting the following sub-section: '(1) Subject to sub-section (2) and to section 58A, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request that is applicable to the document and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.';

(b) by omitting sub-sections (3), (4) and (5);

(c) by adding after sub-section (6) the following sub-sections: '(7) Where there are proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document under section 33, 34, 35 or 36-

(a) the Tribunal shall be constituted by the President or a Deputy President of the Tribunal alone; and

(b) in relation to any part of the proceedings that concern the question of whether the document is an exempt document under section 33, 34, 35 or 36, the person making application under this section for a review of the decision shall give his evidence by affidavit only and shall not be entitled to have access to the evidence given in support of the decision.

'(8) A decision not to provide access to a document that is framed in such a manner as neither to confirm nor to deny the existence of the document shall be taken, for the purposes of a review in pursuance of this section, to be a decision to refuse to provide access to that document notwithstanding that the existence of the document is not acknowledged and if the Tribunal, upon such a review, affirms the decision under review, the decision of the Tribunal affirming the decision under review may be so framed as neither to confirm nor to deny the existence of the document.'.

''29A. After section 58 of the Principal Act the following section is inserted:

Review of decision in respect of documents claimed to be exempt under section 33, 35 or 36 '58A. (1) Sub-section 58 (1) of this Act does not apply to any proceedings before the Tribunal, or to that part of the proceedings, to which this section applies.

'(2) Where there are proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document under section 33, the powers of the Tribunal shall extend only to deciding whether there are grounds on which an agency or a Minister, as the case may be, could decide that disclosure of the document could reasonably be expected to cause damage to-

(a) the security of the Commonwealth;

(b) the defence of the Commonwealth; or

(c) the international relations of the Commonwealth.

'(3) Where there are proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document under section 35 or 36, the powers of the Tribunal shall extend only to deciding whether the document is a document of the type referred to in section 35 or 36, as the case may be.'.''.

Question-That the proposed new clauses be inserted in the Bill-put and negatived.

On the motion of Senator Gareth Evans the following amendment was agreed to: Page 12, at end of clause, add the following new paragraph: ''(f) by adding at the end thereof the following sub-section: '(7) Where-

(a) application is or has been made to the Administrative Appeals Tribunal for review of a decision refusing to grant a person access to a document in accordance with a request; and

(b) the agency to which or the Minister to whom the request was made- (i) has given to the applicant a notice under this Act of the decision, being a notice that does not include a statement (in whatever terms expressed) to the effect that access to the document is being refused for the reason that, by virtue of the operation of sub-section 12 (2) or of that sub-section as modified by regulations in pursuance of sub-section 12 (3), the applicant is not entitled to access to that document; or

(ii) informs or has informed the Tribunal, either before or in the course of the proceeding for the review of the decision, that the agency or the Minister, as the case requires, does not intend, or does not any longer intend, to refuse access to the document for the reason referred to in sub-paragraph (i),

then, for the purposes of the review by the Tribunal of that decision, this Act has effect as if sub-section 12 (2), or that sub-section as so modified, as the case requires, had not been enacted.'.''.

Clause 29, as amended, agreed to.

Clauses 30 to 42, by leave, taken together and agreed to.

Consideration resumed of postponed clause 4 and of the amendment moved thereto by Senator Haines (see Journals p. 345).

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Consideration resumed of postponed clause 13 and of the amendment moved thereto by Senator Haines (see Journals p. 346).

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Senator Missen, by leave, moved the following amendments together: Clause 24B, proposed new sub-section 52B (1), after ''agency'', insert ''or by a Minister''.

Clause 24B, proposed new sub-section 52C (2), after ''action taken by'', insert ''a Minister or''.

Clause 24B, proposed new sub-section 52C (4), leave out the sub-section, insert the following sub-section: ''(4) In this section, a reference to the Ombudsman Act 1976 shall be construed- (a) unless paragraph (b) applies-as a reference to that Act as modified in the manner provided in sections 52A and 52B of this Act; or

(b) in relation to a complaint concerning action taken by a Minister-as a reference to the Ombudsman Act 1976 as modified and adapted in accordance with the regulations made under section 52EA.''

Clause 24B, proposed new paragraph 52D (3) (a), after ''agencies'', insert ''or by a Minister''. Clause 24B, proposed new section 52E, at end of section, add the following sub-section: ''(2) Notwithstanding paragraph 9 (3) (b) of the Ombudsman Act 1976, the Attorney-General is not empowered to furnish to the Ombudsman a certificate under that paragraph in relation to an investigation commenced by the Ombudsman into a decision made under this Act not to grant a request for access to a document in accordance with a request.''

Clause 24B, after proposed new section 52E, insert the following section:

Investigation by the Ombudsman of action taken by Ministers '52EA. (1) The Minister administering this Act shall cause to be made by the date of commencement of this Part regulations that make provision for the modification and adaptation of the provisions of the Ombudsman Act 1976 so as to enable complaints concerning action taken by Ministers under this Act to be made to the Ombudsman and dealt with by him in a manner substantially similar to the manner in which complaints concerning action taken by agencies under this Act are made to the Ombudsman and dealt with by him.

'(2) Where a complaint concerning action taken by a Minister under this Act is made to the Ombudsman under the Ombudsman Act 1976 as modified and adapted in accordance with regulations made under sub-section (1), sub-section 5 (2) of the Ombudsman Act 1976 shall not be taken to prevent the investigation of the complaint.

'(3) Where a complaint concerning action taken by a Minister under this Act is made to the Ombudsman under the Ombudsman Act 1976 as modified and adapted in accordance with regulations made under sub-section (1), sub-section 6 (3) of the Ombudsman Act 1976 shall not be taken to prevent the investigation of the complaint in a case where the complainant has not exercised a right to have that action reviewed under section 55 of this Act.''

Question-That the amendments be agreed to-put and negatived.

Title agreed to.

Bill to be reported with amendments.

The President resumed the Chair; and the Chairman of Committees (Senator Hamer) reported accordingly.

On the motion of Senator Gareth Evans the Report from the Committee was adopted, and the Bill read a third time.