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

Schedule 3 Administrative Appeals Tribunal Act 1975

   

1  Subsection 21AA(1)

After “Security Appeals Division”, insert “(other than a proceeding to which section 21AB applies)”.

Note:       The heading to section 21AA is altered by adding at the end “ —general ”.

2  After section 21AA

Insert:

21AB   Constitution of Security Appeals Division—proceedings to review certain decisions under the Archives Act 1983

Scope

             (1)  This section applies to a proceeding in the Security Appeals Division in relation to a review of a decision of the Australian Archives under the Archives Act 1983 refusing to grant access to a record in accordance with an application under section 40 of that Act, being a record that is:

                     (a)  a record of the Australian Security Intelligence Organisation; and

                     (b)  claimed to be an exempt record for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b) of that Act.

Constitution of Security Appeals Division

             (2)  Subject to this section, the Security Appeals Division is to be constituted by:

                     (a)  3 presidential members; or

                     (b)  a presidential member alone.

When presidential member must not participate

             (3)  A presidential member must not participate in the proceeding if he or she is, or has been, the Director-General of Security or an officer, employee or agent of the Australian Security Intelligence Organisation.

Reconstitution of Division at the request of a party

             (4)  At any time during the hearing of a proceeding before the Division, constituted by a presidential member alone, a party to the proceeding may apply to the Division as constituted for the purposes of the proceeding requesting that the Division be reconstituted for the purposes of the proceeding.

             (5)  If an application is made under subsection (4), the Division as constituted for the purposes of the proceeding must, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions.

             (6)  The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Division as constituted for the purposes of the proceeding be reconstituted by 3 presidential members.

             (7)  If a direction is given under subsection (6), the Division as reconstituted in accordance with the direction must continue the proceeding and may either:

                     (a)  complete the proceeding; or

                     (b)  at any time remit the proceeding to the Division as previously constituted for completion by the Division as previously constituted.

             (8)  If the Division as reconstituted remits a proceeding to the Division as previously constituted, the Division as reconstituted may give directions in relation to the proceeding to the Division as previously constituted and the Division as previously constituted must, in making a decision on the review, comply with those directions.

Member presiding

             (9)  At the hearing of a proceeding before the Division at which the Division is constituted for the purposes of the proceeding by presidential members:

                     (a)  if the President is a member of the Division as so constituted—he or she is to preside; or

                     (b)  if the President is not a member of the Division as so constituted, but only one presidential member who is a Judge is a member of the Division as so constituted—that presidential member is to preside; or

                     (c)  if the President is not a member of the Division as so constituted, but 2 or more presidential members who are Judges are members of the Division as so constituted—the senior Judge is to preside; or

                     (d)  if neither the President, nor a Judge is a member of the Division as so constituted—a Deputy President of the Division as so constituted who is directed by the President to do so is to preside.

What happens if member ceases to be available

           (10)  If, before the proceeding has been completed, one of the members constituting the Division for the purposes of the proceeding has ceased to be available for the purposes of the proceeding the proceeding is to be reheard by the Division as reconstituted in accordance with this section.

Regard may be had to record of previous proceeding

           (11)  If the Division:

                     (a)  is reconstituted in accordance with a direction under subsection (6); or

                     (b)  is reconstituted because proceedings are remitted under paragraph (7)(b) to the Division as previously constituted; or

                     (c)  is reconstituted under subsection (10) because a member ceases to be available;

the members of the Division may have regard to any record of the proceeding in the Division as previously constituted, including a record of any evidence taken in the proceeding.