2004-2005-2006

 

 

The Parliament of the Commonwealth of Australia

 

 

 

 

 

 

The Senate

 

 

 

 

Archives Amendment Bill 2006

 

 

 

Explanatory Memorandum relating to amendments to be moved

by Senator Andrew Murray on behalf of the Australian Democrats

 

 

 

 

Circulated by Senator Murray

 

 

 

 

 

 

These amendments add to the Archives Amendment Bill 2006 further amendments of the Freedom of Information Act 1982 to overcome the difficulty arising from a recent judgment of the High Court, and to make other improvements to the review jurisdiction of the Administrative Appeals Tribunal recommended by the Australian Law Reform Commission and the Administrative Review Council.

 

The amendments will preserve the higher level of protection for documents relating to national security and cabinet documents, while facilitating review of decisions relating to documents concerning relations with the states, executive council documents and internal working documents.

 

Subsection 58(5) of the Freedom of Information Act provides:

 

Where application is or has been made to the Tribunal for the review of a decision refusing to grant access to a document in accordance with a request , being a document that is claimed to be an exempt document under section 36 and in respect of which a certificate is in force under that section, the Tribunal shall, in a case where it is satisfied that the document is a document to which paragraph 36(1)(a) applies, if the applicant so requests , determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.

 

Section 36 of the Act relates to internal working documents.

 

In McKinnon v Secretary, Department of Treasury [2006] HCA 45, a majority of the High Court held on 6 September 2006 that this provision entitles the Administrative Review Tribunal to determine only whether reasonable grounds for the withholding of documents exist, and does not allow the tribunal to balance the competing grounds to determine whether a document should be disclosed, so that “if one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness [of the decision that the document should not be disclosed] will be beyond review.”

 

The principal amendment, amendment (7), adding item 73K to Schedule 1 of the Bill, repeals this subsection, so that, under section 58, the Tribunal will be able to determine the reasonableness of the grounds for withholding internal working documents.

 

The amendments would preserve the high level of protection and the limited capacity of the Tribunal to review decisions in relation to documents concerning national security and cabinet documents.

 

The effect of the other amendments are set out in tabular form below.

 

Amendment no.	Subject	Relevant provision - principal Act	Item no.
(1)	Removing the application fee.	Subsection 54(1)	73A
(2)	Removing limitations on review by the Tribunal.	Subsection 55(2) and (3)	73B
(3)	Consequential to removing the time limit for applications to the Tribunal after receiving a response from the Ombudsman.	Paragraph 55(4)(a) Paragraph 55(4)(b)	73C 73D
(4)	Removing the time limit for applications to the Tribunal after receiving a response from the Ombudsman.	Paragraph 55(4)(c)	73E
(5)	Reduction of waiting period.	Paragraph 56(1)(b) Paragraph 56(1A)(b)	73F 73G
(6)	Removing limitations on review by the Tribunal.	Subsection 58(3) Subsection 58(3) Subsection 58(4)	73H 73I 73J
(7)	Removing limitation on review by the Tribunal in relation to internal working documents.	Subsection 58(5)	73K
(8)	Removing limitations on review by the Tribunal.	Subsection 58(5A)	73L
(9)	Consequential to (7).	Subsection 58A(1)	73M
(10)	Removing limitations on review by the Tribunal.	Paragraph 58A(2)(b) Subsection 58A(5) Subsection 58A(6)	73N 73O 73P
(11)	Consequential to (7).	Subsection 58B(1)	73Q
(12)	Changing provisions for hearings in private in relation to classes of documents.	Subparagraph 58C(2)(a)(iv)	73R
(13)	Changing provisions for hearings in private in relation to classes of documents.	Subparagraph 58C(2)(a)(v)	73S
(14)	Changing provisions for hearings in private in relation to classes of documents.	Subparagraph 58C(2)(a)(vi) Subsection 58C (2A) Subsection 58E(1)	73T 73U 73V
(15)	Consequential to (7).	Subsection 58E(2) Paragraph 60(c)	73W 73X
(16)	Lodging of documents with the Tribunal by an agency or Minister.	Subsection 64(1) Subsection 64(1)	73Y 73Z
(17)	Consequential to (7).	Subsection 64(3)	73AA
(18)	Removing limitations on review by the Tribunal.	Paragraph 64(3)(a) Paragraph 64(3)(b) Subsection 64(4)	73AB 73AC 73AD
(19)	Protection by the Tribunal of documents claimed to be exempt documents.	Subsection 64(6)	73AE
(20)	Removing limitations on review by the Tribunal.	Section 65	73AF
(21)	Discretion of the Tribunal to determine payment of costs.	Paragraph 66(2) Subsection 66(3)	73AG 73AH