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Freedom of Information Amendment (Abolition of Conclusive Certificates) Bill 2006

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2004-2005-2006

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

Freedom of Information Amendment (Abolition of Conclusive Certificates) Bill 2006

 

 

 

 

 

Explanatory Memorandum

 

 

 

 

 

 

Circulated by authority of Ms Nicola Roxon MP





 

Freedom of Information Amendment (Abolition of Conclusive Certificates) Bill 2006

 

This bill will amend the Freedom of Information Act 1982.

 

Policy rationale for the bill

 

This Bill has two main purposes.  The first is to remove the capacity for Ministers to issue certificates establishing conclusively that documents are ‘exempt’ documents. The second is to ensure that the purpose of the Act—enabling access wherever possible to information that is in the possession of the Commonwealth Government—is reinforced.

 

The Bill retains safeguards in the form of the current exemptions, but adds an additional requirement that the review of decisions claiming exemption for documents falling within the defence/ national security/ international relations and Cabinet document exemptions in sections 33 and 34 of the Act, must be heard by at least one presidential member of the Administrative Appeals Tribunal.

 

The Bill introduces a provision explicitly stating that protecting a Government from embarrassment is not sufficient on its own as a reason to decline release of information.

 

The purpose of the Bill is to rebalance the objective of providing access to government information against legitimate claims for protection.

 

The Bill provides a partial response to the Australian Law Reform Commission (ALRC) / Administrative Review Council (ARC) 1996 report - Open Government - A Review of the Federal Freedom of Information Act 1982 and draws on that report.

 

It reflects Labor’s commitment to abolishing conclusive certificates, ensuring the public interest test is applied more thoroughly and consistently, and establishing a pro-disclosure culture throughout Government, by changing the objects of the Act.

 

The High Court’s decision in McKinnon v Secretary, Department of Treasury on 6 September 2006 highlighted the importance of the issues addressed by the Bill.

 

Financial impact statement

The amendments are not expected to have any significant financial impact.

 

 

Provisions of the bill

 

As well as amending section 3 of the Freedom of Information Act 1982 (FoI Act) to clarify the intention that the right to access to information is extended as far as possible, this Bill substantially amends Part IV of the FoI Act, which provides for exemptions under the Act.

 

The amendments to Part IV seek to:

(a) abolish certificates that establish conclusively a document is exempt from disclosure; and

(b) provide for review of retained exemption claims in respect of documents affecting national security, defence or international relations (section 33) and Cabinet documents (section 34). Reviews, by the Administrative Appeals Tribunal (AAT), are to be undertaken by 3 presidential members or a presidential member alone, in accordance with proposed section 58B.

 

Notes on clauses, Schedule 1, items

 

Clause 1: Short title

Clause 1 is a formal provision specifying that the short title is Freedom of Information Amendment (Abolition of Conclusive Certificates) Act 2006.

 

Clause 2: Commencement

Clause 2 provides that the Bill commences on the date of Royal Assent.

 

Clause 3: Schedule

Clause 3 provides that the principal Act, the Freedom of Information Act 1982 , is amended in the terms set out in the Schedule.

 

Schedule 1: Amendments

Part 1—Amendments of the Freedom of Information Act 1982

 

Schedule 1, item 1

This amendment provides that subsection 3(1) of the Act is repealed and substituted with a subsection clarifying the objects of the FoI Act. The new subsection removes reference in the objects clause to the limitations imposed by exceptions and exemptions and spells out the intention to enhance government accountability and the capacity of the Australian community to participate in scrutiny and discussion of government activity. Within the provisions of this Bill, limitations on that general right to access are now provided for within Part IV - Exempt Documents. This amendment reflects the ALRC / ARC recommendations 1-4.

 

Schedule 1, item 2

Schedule 1, item 2 of this Bill proposes a new section 31A providing for the object of Part IV-Exempt Documents. Subsection (1) serves as a reminder that the general right of access to information is limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities.

New subsection 31A(2) explicitly provides that “the prevention of embarrassment to a Minister or to the Government, or to a Minister and the Government, shall not, of itself, amount to an essential public interest.” This provision reflects the ALRC / ARC recommendation 38 that the FoI Act should be amended to provide that, for the purpose of determining whether release of a document would be contrary to the public interest, it is irrelevant that the disclosure may cause embarrassment to the government.

 

Schedule 1, item 3

This amendment repeals subsections 33(2), (3) and (4) to remove the framework for a Minister— satisfied that disclosure of a document or part of a document, or disclosure of a document’s existence, could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth, or would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth—to sign a certificate establishing conclusively that the document is an exempt document under subsection 33(1) so long as the certificate remains in force.

 

Schedule 1, item 4

This amendment repeals subsections 33A(2), (2A), (3), (4) and (4A) to remove the framework for a Minister—satisfied that disclosure of a document or part of a document, or disclosure of a document’s existence, could reasonably be expected to cause damage to relations between the Commonwealth and a State, or would divulge any information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth—to sign a certificate establishing conclusively that the document is an exempt document under subsection 33A(1) and is satisfied that the document does not contain matter the disclosure of which under this Act would, on balance, be in the public interest.

 

Schedule 1, item 5

This amendment repeals subsections 34(2), (3), (4) and (5) to remove the framework for the Secretary to the Department of Prime Minister and Cabinet to sign a certificate establishing conclusively the exemption of Cabinet documents, that is documents submitted to Cabinet, or proposed by a Minister to be so submitted for consideration, and brought into existence for the purpose of submission to Cabinet; official Cabinet records; copies or parts of such documents; or documents which, if disclosed, would disclose a Cabinet deliberation or decision that was not officially published.

 

Schedule 1, item 6

This amendment repeals subsections 35(2), (3), (4) and (5) to remove the framework for the Secretary to the Executive Council to sign a certificate establishing conclusively the exemption of Executive Council documents, that is, documents submitted to the Executive Council, or proposed by a Minister to be so submitted for consideration, and brought into existence for the purpose of submission to the Executive Council; copies or parts of such documents; or documents which, if disclosed, would disclose any deliberation or advice of the Executive Council other than a document by which an act of the Governor-General, acting on Executive Council advice, was officially published.

 

Schedule 1, item 7

This amendment repeals subsections 36(3) and (4) to remove the framework for a Minister to sign a certificate establishing conclusively the exemption of internal working documents, that is, documents which if disclosed under the Act would: disclose matter relating to opinion, advice or recommendation obtained, prepared, etc, or consultation or deliberation held as part of or for the deliberative processes in the functions of an agency or Minister or the Commonwealth Government; and would be contrary to the public interest.     

 

Schedule 1, item 8

This amendment repeals section 36A, to remove provision for regulations to prescribe periods for which certificates under 33(2), 33(4), 33A(2), 33A(4), 34(2), 34(4), 35(2), 35(4) and 36(3) remain in force.

 

Schedule 1, item 9

This amendment repeals paragraph 53(a), to remove reference to conclusive certificates. This is a consequential amendment arising from the repeal of subsections 33(4), 33A(4), 34 (4) and 35 (4).

 

Schedule 1, item 10

This amendment substitutes a new subsection 58(3) which provides that where a claim of exemption is made for a document under sections 33 (documents affecting national security, defence or international relations) or 34 (Cabinet documents), the powers and role of the Tribunal, which will be constituted in accordance with section 58B, will be as provided for in subsection 58(4).

 

Schedule 1, item 11

This amendment substitutes a new subsection 58(4). This provides that where application is made to the Tribunal for review of a decision refusing access to a document that is claimed to be exempt under section 33 (documents affecting national security, defence or international relations) or 34 (Cabinet documents), the Tribunal will review the decision to refuse access and determine the question whether the exemption is necessary for the protection of an essential public interest.  

 

Schedule 1, item 12

This amendment repeals subsection 58(5), which provides for the Tribunal, when application was made for review of a decision refusing access to a document claimed to be exempt under section 36 (internal working documents), and in respect of which a certificate was in force, to determine the question whether there existed reasonable grounds for the claim that disclosure would be contrary to the public interest if the applicant requested.

 

Schedule 1, item 13

This amendment repeals subsection 58(5A), which provides for Tribunal review of a decision refusing to grant access to a document that is claimed to be an exempt document under subsection 33(4) (documents affecting national security, defence or international relations) or 33A(4) (documents affecting relations with States) and in respect of which a certificate is in force under either of those sections, and in which the applicant requests determination of the question whether reasonable grounds exist for the claim that information as to the existence or non-existence of the document would cause the document to be exempt (in the circumstances outlined in paragraphs (a) and (b)).

 

Schedule 1, item 14

This amendment repeals section 58A to remove provisions concerning proceedings when the Tribunal determines there are not reasonable grounds for the claim made, and when Ministers decide to revoke or not to revoke certificates. It is a consequential amendment.

 

Schedule 1, item 15

This amendment amends the heading of section 58B to reflect amendments to the section relating to proceedings under subsection 58(4).

 

Schedule 1, item 16

This amendment to subsection 58B(1) is a consequential amendment .

 

Schedule 1, item 17

This amendment substitutes a new paragraph 58C(2)(a) , enabling the Tribunal to choose to conduct certain proceedings in private, where evidence is received regarding particular agencies etc, give directions about publication of documents. Those parts of the paragraph that refer to submissions on certificates (58C(2)(a)(iv)-(vi)) have been omitted.

 

Schedule 1, item 18

This amendment repeals subsection 58C(2A) , which relates to information as to the existence or non-existence of documents where a certificate is in force under subsection 33(4) or 33A(4).

 

Schedule 1, item 19

This amendment repeals section 58E , which provides requirements for production of documents to the Tribunal in relation to which a certificate has been issued.

 

Schedule 1, item 20

This amendment repeals subsections 64(3) and (4), which relate to the Tribunal’s power to require the production of documents and giving of information in respect of which a certificate is in force.

 

Schedule 1, item 21

This amendment to subsection 64(4A) removes reference to subsection 64(4). It is a consequential amendment arising from the repeal of subsection 64(4) (see item 20).

 

Schedule 1, item 22

This amendment repeals section 65 , which concerns provision of evidence of a certificate. It arises from the removal of provision for conclusive certificates under sections 33, 33A, 34, 35 and 36.

 

Schedule 1, item 23

This provision specifies that amendments made by this Act do not affect proceedings in a court or tribunal that commenced before the commencement of this Act.