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

Schedule 2 Archives Act 1983

   

1  Subsections 29(6) and (7)

Repeal the subsections, substitute:

             (6)  A record that is in the open access period is not, by virtue of a determination under subsection (1), a record to which paragraph (1)(b) applies unless:

                     (a)  the record is an exempt record for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b); and

                     (b)  a security classification applies to the record such that access by the Archives would not be appropriate.

             (7)  A record that is in the open access period is not, by virtue of a determination under subsection (2), a record to which paragraph (2)(b) applies unless:

                     (a)  the record is an exempt record for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b); and

                     (b)  a security classification applies to the record such that access by the Archives would not be appropriate.

2  Section 34

Repeal the section.

3  Section 41

Repeal the section.

4  Subsections 44(4), (5) and (6)

Repeal the subsections.

5  Section 45

Repeal the section.

6  Subsection 46(1)

Repeal the subsection, substitute:

             (1)  If an application is made to the Tribunal for review of a decision refusing to grant access to a record in accordance with an application under section 40, being a record that is:

                     (a)  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); and

                     (b)  not a record of the Australian Security Intelligence Organisation;

then the Tribunal must be constituted in accordance with subsection (2) for the purposes of any proceeding in relation to the application.

Note:          Section 21AB of the Administrative Appeals Tribunal Act 1975 contains the requirements for constitution of the Tribunal in proceedings about a record of the Australian Security Intelligence Organisation that is 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).

Note:       The heading to section 46 is replaced by the heading “ Constitution of Tribunal for proceedings about certain exempt records ”.

7  Section 47

Repeal the section.

8  Section 49

Repeal the section.

9  Section 50

Repeal the section, substitute:

50   Parties

                   For the purposes of this Part and of the application of the Administrative Appeals Tribunal Act 1975 in respect of proceedings under this Part, a decision given by the Archives is taken to have been given by the Director-General.

10  After section 50

Insert:

50A   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 record that is 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).

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

                     (a)  the damage that could reasonably be expected to be caused to the security, defence or international relations of the Commonwealth if the record were made available for public access; or

                     (b)  whether making the record available for public access would constitute a breach of confidence by disclosing 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 part of, or a copy of part of, the record is to be made available for public access under section 38, the Tribunal must request the Inspector-General to appear personally and give evidence on:

                     (a)  whether making that part, or a copy of that part, of the record available for public access could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth; or

                     (b)  whether making that part, or a copy of that part, of the record available for public access would constitute a breach of confidence by disclosing 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:

                     (a)  the Archives; or

                     (b)  the Commonwealth institution of which the record is property.

             (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 record given to the Tribunal for the purposes of the proceeding; and

                     (b)  the Inspector-General may require the production of the record that is 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); and

                     (c)  the Inspector-General may require the production of any Commonwealth record that relates to the record mentioned in paragraph (b); and

                     (d)  the Inspector-General may make copies of, or take extracts, from the records 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 record to the Tribunal or to the entity that produced the record; and

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

             (7)  The Inspector-General must permit a person who would be entitled to inspect a record mentioned in paragraphs (6)(a) to (d) if it were not in the possession of the Inspector-General to inspect the record 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 records 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.

11  Subsection 52(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 for the purposes of proceedings in relation to an application under section 43, the Tribunal must:

                     (a)  have regard to:

                              (i)  the necessity of avoiding the disclosure to the applicant of matter contained in a record to which the proceedings relate, being matter by reason of which the record is an exempt record; and

                             (ii)  the necessity of avoiding the disclosure to the applicant of information of the kind referred to in subsection 39(1); and

                     (b)  where the proceedings relate to a record that is 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)—give particular weight to a submission made by the Archives that it is desirable to make the order or orders under subsection 35(2) of the Administrative Appeals Tribunal Act 1975 because the record contains information or matter of that kind.

12  Paragraphs 52(2)(a) and (b)

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

13  Subsection 53(1)

Repeal the subsection, substitute:

             (1)  Section 37 of the Administrative Appeals Tribunal Act 1975 does not apply in relation to a record that is claimed to be an exempt record, but in proceedings before the Tribunal in relation to such a record, if the Tribunal is not satisfied, by evidence on affidavit or otherwise, that the record is an exempt record, it may require the record to be produced for inspection by members of the Tribunal only.

          (1A)  If, upon the inspection, the Tribunal is satisfied that the record is an exempt record, the Tribunal must return the record to the person by whom it was produced without permitting a person to have access to the record, or disclosing the contents of the record 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 50A(6)(a)—the Inspector-General of Intelligence and Security.

14  Subsection 53(2)

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

                   a person to have access to the record or disclosing the contents of the record 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 50A(6)(a)—the Inspector-General of Intelligence and Security.

15  Subsections 53(3) and (4)

Repeal the subsections.

16  Section 54

Repeal the section.

17  At the end of Division 4 of Part V

Add:

55A   Automatic stay of certain decisions on appeal

             (1)  This section applies if:

                     (a)  a person applies, under section 43, to the Tribunal for review of a decision refusing to make a record that is claimed to be an exempt record available for public access; and

                     (b)  the Tribunal decides that a person may have access to the record, or part of the record; and

                     (c)  the Archives 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 Archives 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 Archives 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.

18  Subsection 66(2)

Omit all the words from and including “, other than:”.

19  Application provision—item 1

The amendments made by item 1 of this Schedule do not apply to a Commonwealth record if:

                     (a)  the record is in the open access period; and

                     (b)  a determination has been made in respect of the record under subsection 29(1) or (2) of the Archives Act 1983 ; and

                     (c)  a certificate under section 34 of the Archives Act 1983 (as in force immediately before the commencement of this Schedule) is in force in respect of the record.

Note:          A certificate ceases to be in force if it is revoked by force of subitem 20(2).

20  Application provision—items 2 to 16

(1)       The amendments made by items 2 to 16 of this Schedule apply for the purposes of determining whether access, or an extension of partial access, to a record referred to in section 31 of the Archives Act 1983 will be given in accordance with an application made under section 40 of that Act and received by the Archives on or after the commencement of this Schedule.

(2)       A certificate issued in relation to a Commonwealth record under section 34 of the Archives Act 1983 (as in force immediately before the commencement of this Schedule) is, by force of this subitem, revoked in relation to the record on and from the time at which the first application for access to the record under the Archives Act 1983 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 applying, on and after the commencement of this Schedule, for access to a Commonwealth record under the Archives Act 1983 if:

                              (i)  before the commencement of this Schedule, the person applied for access to the same record; and

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

21  Application provision—item 17

The amendment made by item 17 of this Schedule applies to a decision of the Tribunal made on or after the commencement of this Schedule.

22  Application provision—item 18

The amendment made by item 18 of this Schedule does not apply to a record, or a part of a record, if:

                     (a)  the record is in the open access period; and

                     (b)  one of the following applies:

                              (i)  in relation to the record—a certificate issued under section 34 of the Archives Act 1983 (as in force immediately before the commencement of this Schedule) is in force in respect of the record;

                             (ii)  in relation to the part of the record—the part of the record is identified in accordance with subsection 34(2) of that Act (as in force immediately before the commencement of this Schedule) in a certificate issued under section 34 of that Act (as in force immediately before the commencement of this Schedule).

Note:          A certificate ceases to be in force if it is revoked by force of subitem 20(2).