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Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 [2009]

Schedule 1 Freedom of Information Act 1982

   

1  Subsection 4(1) (paragraph (b) of the definition of exempt document )

After “agency”, insert “, person or body”.

2  After subsection 7(2A)

Insert:

          (2B)  A Minister is exempt from the operation of this Act in relation to a document that has originated with, or has been received from, any of the following:

                     (a)  the Australian Secret Intelligence Service;

                     (b)  the Australian Security Intelligence Organisation;

                     (c)  the Inspector-General of Intelligence and Security;

                     (d)  the Office of National Assessments;

                     (e)  the Defence Imagery and Geospatial Organisation;

                      (f)  the Defence Intelligence Organisation;

                     (g)  the Defence Signals Directorate.

3  Subsection 12(3)

Omit “part”, substitute “Part”.

4  Subsection 33(1)

Omit “(1)”.

5  Subsections 33(2) to (7)

Repeal the subsections.

6  Subsections 33A(2) to (4A)

Repeal the subsections.

7  Subsections 33A(6) to (8)

Repeal the subsections.

8  Subsections 34(2) to (5)

Repeal the subsections.

9  Subsections 35(2) to (5)

Repeal the subsections.

10  Subsections 36(3), (4), (8), (9) and (10)

Repeal the subsections.

11  Section 36A

Repeal the section.

12  Section 53

Repeal the section, substitute:

53   Interpretation

                   For the purposes of this Part, unless the contrary intention appears, a claim that a document would, if it exists, be an exempt document under section 33, 33A, 34 or 35 is to be deemed to be a claim that the document is an exempt document under that section despite the fact that the existence or non-existence of the document is not acknowledged.

13  Subsections 58(3) to (5A)

Repeal the subsections.

14  Section 58A

Repeal the section.

15  Subsection 58B(1)

Repeal the subsection, substitute:

             (1)  If an application is 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 33 or 34, then the Tribunal must be constituted in accordance with subsection (2) for the purposes of any proceeding in relation to the application.

Note:       The heading to section 58B is replaced by the heading “ Constitution of Tribunal for proceedings about certain exempt documents ”.

16  Section 58C

Repeal the section.

17  Section 58E

Repeal the section, substitute:

58E   Production to the Tribunal of certain exempt documents

             (1)  In any proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document under section 33 or 34, the Tribunal is entitled to require the production of the document in accordance with this section and not in accordance with section 64, section 37 of the Administrative Appeals Tribunal Act 1975 or otherwise.

             (2)  If the Tribunal is not satisfied by evidence on affidavit or otherwise that the document is an exempt document under section 33 or 34, the Tribunal may require the document to be produced for inspection by the Tribunal as constituted for the purposes of the proceeding.

             (3)  If, after an inspection of a document under this section, the Tribunal is satisfied that the document is an exempt document, the Tribunal must return the document to the person by whom it was produced without permitting a person to have access to the document or disclosing the contents of the document to a person, unless the person is:

                     (a)  a member of the Tribunal as constituted for the purposes of the proceeding; or

                     (b)  a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or

                     (c)  in the circumstances permitted under paragraph 60A(6)(a)—the Inspector-General of Intelligence and Security.

18  At the end of subsection 59(3)

Add “unless the Tribunal orders, on the application of the agency or the Minister concerned, that it would not be appropriate to do so in the circumstances”.

19  At the end of section 59

Add:

             (4)  For the purposes of determining, under subsection (3), whether it would not be appropriate for the person or organisation, or the proprietor of the undertaking, to be informed under subsection (3), the Tribunal must have regard to whether informing the person or organisation, or the proprietor of the undertaking, would, or could reasonably be expected to:

                     (a)  prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance; or

                     (b)  disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or

                     (c)  endanger the life or physical safety of any person; or

                     (d)  cause damage to the security, defence or international relations of the Commonwealth.

20  At the end of subsection 59A(3)

Add “unless the Tribunal orders, on the application of the agency or the Minister concerned, that it would not be appropriate to do so in the circumstances”.

21  At the end of section 59A

Add:

             (4)  For the purposes of determining, under subsection (3), whether it would not be appropriate for the person, or if the person is deceased, the legal representative of the person, to be informed under subsection (3), the Tribunal must have regard to whether informing the person, or the legal representative of the person, would, or could reasonably be expected to:

                     (a)  prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance; or

                     (b)  disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or

                     (c)  endanger the life or physical safety of any person; or

                     (d)  cause damage to the security, defence or international relations of the Commonwealth.

22  At the end of paragraph 60(a)

Add “and”.

23  Paragraph 60(b)

Omit “; and”, substitute “.”.

24  Paragraph 60(c)

Repeal the paragraph.

25  After section 60

Insert:

60A   Inspector-General of Intelligence and Security must be requested to give evidence in certain proceedings

             (1)  This section applies in any proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document under section 33.

             (2)  Before determining that the document is not an exempt document under section 33, the Tribunal must request the Inspector-General of Intelligence and Security to appear personally and give evidence on:

                     (a)  the damage that would, or could reasonably be expected to, be caused to:

                              (i)  the security of the Commonwealth; or

                             (ii)  the defence of the Commonwealth; or

                            (iii)  the international relations of the Commonwealth;

                            if access to the document were given in accordance with the request; or

                     (b)  whether giving access to the document in accordance with the request 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 organisation 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.

             (3)  Before determining that an agency or Minister must grant access to a copy of the document with deletions, the Tribunal must request the Inspector-General to appear personally and give evidence on:

                     (a)  the damage that would, or could reasonably be expected to, be caused to:

                              (i)  the security of the Commonwealth; or

                             (ii)  the defence of the Commonwealth; or

                            (iii)  the international relations of the Commonwealth;

                            if the proposed deletions were not made; or

                     (b)  whether giving access to the document without the proposed deletions 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 organisation 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.

             (4)  Before hearing the evidence of the Inspector-General, the Tribunal must hear any evidence to be given or submissions to be made by or on behalf of the agency to which or the Minister to whom the request was made for access to the document.

             (5)  The Inspector-General must comply with a request under subsection (2) or (3) unless, in the opinion of the Inspector-General, the Inspector-General is not appropriately qualified to give evidence on the matters in relation to which the Inspector-General has been requested to give evidence.

             (6)  For the purposes of enabling the Inspector-General to comply with a request under subsection (2) or (3):

                     (a)  the Tribunal must allow the Inspector-General to take possession of, and make copies of or take extracts from, any document given to the Tribunal for the purposes of the proceeding; and

                     (b)  the Inspector-General may require the production of the document that is claimed to be an exempt document under section 33 by the agency to which or the Minister to whom the request was made for access to the document; and

                     (c)  the Inspector-General may require the production of any document of an agency or official document of a Minister that relates to the document mentioned in paragraph (b) by the agency or Minister; and

                     (d)  the Inspector-General may make copies of, or take extracts from, the documents mentioned in paragraphs (b) and (c); and

                     (e)  after such period as is reasonably necessary for the purposes of giving evidence to the Tribunal, the Inspector-General must:

                              (i)  return the original of any document to the Tribunal or to the agency or Minister; and

                             (ii)  destroy any copies of or extracts taken from any document.

             (7)  The Inspector-General must permit a person who would be entitled to inspect a document mentioned in paragraphs (6)(a) to (d) if it were not in the possession of the Inspector-General to inspect the document at all reasonable times as the person would be so entitled.

             (8)  The Tribunal is not bound by any opinion of the Inspector-General expressed while giving evidence under this section.

             (9)  The Tribunal must allow the Inspector-General a period within which to consider the documents mentioned in paragraphs (6)(a) to (d) that is reasonable having regard to:

                     (a)  the nature of the evidence that the Inspector-General has been requested to give; and

                     (b)  the time required by the Inspector-General to perform the Inspector-General’s other functions.

           (10)  The fact that a person is obliged to produce a document under subsection (6) does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that document.

26  Subsection 63(1)

Repeal the subsection, substitute:

             (1)  In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 35(2) of the Administrative Appeals Tribunal Act 1975 , the Tribunal must:

                     (a)  have regard to:

                              (i)  the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate; and

                             (ii)  the necessity of avoiding the disclosure to the applicant of information of the kind referred to in subsection 25(1); and

                     (b)  where the proceedings relate to a document that is claimed to be an exempt document under section 33—give particular weight to a submission made by an agency or a Minister that it is desirable to make the order or orders under subsection 35(2) of the Administrative Appeals Tribunal Act 1975 because disclosure of the document:

                              (i)  would, or could reasonably be expected to, cause damage to the security, defence or international relations of the Commonwealth; or

                             (ii)  would divulge information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation 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.

27  Paragraphs 63(2)(a) and (b)

Omit “subsection (1)”, substitute “paragraph (1)(a)”.

28  Subsection 64(1)

Repeal the subsection, substitute:

             (1)  Section 37 of the Administrative Appeals Tribunal Act 1975 does not apply in relation to a document that is claimed to be an exempt document, but in proceedings before the Tribunal in relation to such a document, the Tribunal may, for the purpose of deciding whether the document is an exempt document, require the document to be produced for inspection by members of the Tribunal only.

       (1AA)  If, upon the inspection, the Tribunal is satisfied that the document is an exempt document, the Tribunal must return the document to the person by whom it was produced without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is:

                     (a)  a member of the Tribunal as constituted for the purposes of the proceeding; or

                     (b)  a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or

                     (c)  in the circumstances permitted under paragraph 60A(6)(a)—the Inspector-General of Intelligence and Security.

29  Subsection 64(2)

Omit all the words after “return the document to the person by whom it was produced without permitting”, substitute:

                   a person to have access to the document, or disclosing the contents of the document to a person, unless the person is:

                     (a)  a member of the Tribunal as constituted for the purposes of the proceeding; or

                     (b)  a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or

                     (c)  in the circumstances permitted under paragraph 60A(6)(a)—the Inspector-General of Intelligence and Security.

Note:          The Tribunal is not entitled, under this section, to require production of documents that are exempt under section 33 or 34, but is entitled to do so under section 58E if the Tribunal is not satisfied by evidence on affidavit or otherwise that the document is an exempt document.

30  Subsections 64(3) and (4)

Repeal the subsections.

31  Subsection 64(4A)

Omit “, (2) or (4)”, substitute “or (2)”.

32  Section 65

Repeal the section.

33  At the end of Part VI

Add:

67   Automatic stay of certain decisions on appeal

             (1)  This section applies if:

                     (a)  a person applies, under section 55, to the Tribunal for review of a decision by an agency or Minister refusing to grant access to a document in accordance with a request, being a document that is claimed to be an exempt document; and

                     (b)  the Tribunal decides that a person may have access to the document; and

                     (c)  the agency or the Minister institutes an appeal to the Federal Court of Australia from the decision of the Tribunal.

             (2)  If this section applies to a decision of the Tribunal, the operation of the decision is stayed by force of this section from the time at which the appeal is instituted.

             (3)  If the agency or the Minister appeals to the Federal Court of Australia from the decision of the Tribunal and the appeal in relation to the decision is determined by the Federal Court of Australia, the stay continues to have effect until the earlier of:

                     (a)  the time at which the decision of the Federal Court of Australia on the appeal takes effect; and

                     (b)  the time otherwise determined by the Federal Court of Australia.

             (4)  If the agency or the Minister appeals to the Federal Court of Australia from the decision of the Tribunal and the appeal in relation to the decision is determined by the Federal Magistrates Court, the stay continues to have effect until the earlier of:

                     (a)  the time at which the decision of the Federal Magistrates Court on the appeal takes effect; and

                     (b)  the time otherwise determined by the Federal Magistrates Court.

             (5)  Nothing in this section affects the power of the Federal Court of Australia or the Federal Magistrates Court to make orders under section 44A of the Administrative Appeals Tribunal Act 1975 in relation to matters other than staying the decision of the Tribunal.

34  Application provision—items 4 to 32

(1)       The amendments made by items 4 to 32 of this Schedule apply for the purposes of determining whether access to a document of an agency or an official document of a Minister will be given in accordance with a request made under subsection 15(2) of the Freedom of Information Act 1982 and received by the agency or Minister on or after the commencement of this Schedule.

(2)       A certificate issued in relation to a document under subsection 33(2), 33(4), 33A(2), 33A(4), 34(2), 34(4), 35(2), 35(4) or 36(3) of the Freedom of Information Act 1982 (as in force immediately before the commencement of this Schedule) is, by force of this subitem, revoked in relation to the document on and from the time at which the first request for access to the document under the Freedom of Information Act 1982 is made on or after the commencement of this Schedule.

(3)       To avoid doubt:

                     (a)  subitem (2) does not affect anything done in relation to, or in reliance on, a certificate mentioned in subitem (2) before the commencement of this Schedule; and

                     (b)  nothing prevents a person from making a request, on and after the commencement of this Schedule, for access to a document of an agency or an official document of a Minister under the Freedom of Information Act 1982 if:

                              (i)  before the commencement of this Schedule, the person made a request for access to the same document; and

                             (ii)  the request was refused in reliance on a certificate mentioned in subitem (2).

35  Application provision—item 33

The amendment made by item 33 of this Schedule applies to a decision of the Tribunal made on or after the commencement of this Schedule.