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This is a Bill, not an Act. For current law, see the Acts databases.


FREEDOM OF INFORMATION (REMOVAL OF CONCLUSIVE CERTIFICATES AND OTHER MEASURES) BILL 2008

2008
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Freedom of Information (Removal of
Conclusive Certificates and Other
Measures) Bill 2008
No. , 2008
(Cabinet Secretary)
A Bill for an Act to amend the law relating to access
to information, and for related purposes
i Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedule(s) ......................................................................................... 1
Schedule 1--Freedom of Information Act 1982
3
Schedule 2--Archives Act 1983
14
Schedule 3--Administrative Appeals Tribunal Act 1975
23
Schedule 4--Inspector-General of Intelligence and Security Act
1986
26
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 1
A Bill for an Act to amend the law relating to access
1
to information, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Freedom of Information (Removal of
5
Conclusive Certificates and Other Measures) Act 2008.
6
2 Commence ment
7
This Act commences on the day after it receives the Royal Assent.
8
3 Schedule(s)
9
Each Act that is specified in a Schedule to this Act is amended or
10
repealed as set out in the applicable items in the Schedule
11
2 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
concerned, and any other item in a Schedule to this Act has effect
1
according to its terms.
2
3
Freedom of Information Act 1982 Schedule 1
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 3
1
Schedule 1
--
Freedom of Information Act 1982
2
3
1 Subsection 4(1) (paragraph (b) of the definition of exempt
4
document)
5
After "agency", insert ", person or body".
6
2 After subsection 7(2A)
7
Insert:
8
(2B) A Minister is exempt from the operation of this Act in relation to a
9
document that has originated with, or has been received from, any
10
of the following:
11
(a) the Australian Secret Intelligence Service;
12
(b) the Australian Security Intelligence Organisation;
13
(c) the Inspector-General of Intelligence and Security;
14
(d) the Office of National Assessments;
15
(e) the Defence Imagery and Geospatial Organisation;
16
(f) the Defence Intelligence Organisation;
17
(g) the Defence Signals Directorate.
18
3 Subsection 12(3)
19
Omit "part", substitute "Part".
20
4 Subsection 33(1)
21
Omit "(1)".
22
5 Subsections 33(2) to (7)
23
Repeal the subsections.
24
6 Subsections 33A(2) to (4A)
25
Repeal the subsections.
26
7 Subsections 33A(6) to (8)
27
Repeal the subsections.
28
8 Subsections 34(2) to (5)
29
Repeal the subsections.
30
Schedule 1 Freedom of In formation Act 1982
4 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
9 Subsections 35(2) to (5)
1
Repeal the subsections.
2
10 Subsections 36(3), (4), (8), (9) and (10)
3
Repeal the subsections.
4
11 Section 36A
5
Repeal the section.
6
12 Section 53
7
Repeal the section, substitute:
8
53 Inte rpretation
9
For the purposes of this Part, unless the contrary intention appears,
10
a claim that a document would, if it exists, be an exempt document
11
under section 33, 33A, 34 or 35 is to be deemed to be a claim that
12
the document is an exempt document under that section despite the
13
fact that the existence or non-existence of the document is not
14
acknowledged.
15
13 Subsections 58(3) to (5A)
16
Repeal the subsections.
17
14 Section 58A
18
Repeal the section.
19
15 Subsection 58B(1)
20
Repeal the subsection, substitute:
21
(1) If an application is made to the Tribunal for the review of a
22
decision refusing to grant access to a document in accordance with
23
a request, being a document that is claimed to be an exempt
24
document under section 33 or 34, then the Tribunal must be
25
constituted in accordance with subsection (2) for the purposes of
26
any proceeding in relation to the application.
27
Note:
The heading to section 58B is replaced by the heading "Constitution of Tribunal for
28
proceedings about certain exempt documents".
29
16 Section 58C
30
Freedom of Information Act 1982 Schedule 1
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 5
Repeal the section.
1
17 Section 58E
2
Repeal the section, substitute:
3
58E Production to the Tribunal of certain exempt docume nts
4
(1) In any proceedings before the Tribunal under this Act in relation to
5
a document that is claimed to be an exempt document under
6
section 33 or 34, the Tribunal is entitled to require the production
7
of the document in accordance with this section and not in
8
accordance with section 64, section 37 of the Administrative
9
Appeals Tribunal Act 1975 or otherwise.
10
(2) If the Tribunal is not satisfied by evidence on affidavit or otherwise
11
that the document is an exempt document under section 33 or 34,
12
the Tribunal may require the document to be produced for
13
inspection by the Tribunal as constituted for the purposes of the
14
proceeding.
15
(3) If, after an inspection of a document under this section, the
16
Tribunal is satisfied that the document is an exempt document, the
17
Tribunal must return the document to the person by whom it was
18
produced without permitting a person to have access to the
19
document or disclosing the contents of the document to a person,
20
unless the person is:
21
(a) a member of the Tribunal as constituted for the purposes of
22
the proceeding; or
23
(b) a member of the staff of the Tribunal in the course of the
24
performance of his or her duties as a member of that staff; or
25
(c) in the circumstances permitted under paragraph 60A(6)(a)--
26
the Inspector-General of Intelligence and Security.
27
18 At the end of subsection 59(3)
28
Add "unless the Tribunal orders, on the application of the agency or the
29
Minister concerned, that it would not be appropriate to do so in the
30
circumstances".
31
19 At the end of section 59
32
Add:
33
Schedule 1 Freedom of In formation Act 1982
6 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
(4) For the purposes of determining, under subsection (3), whether it
1
would not be appropriate for the person or organisation, or the
2
proprietor of the undertaking, to be informed under subsection (3),
3
the Tribunal must have regard to whether informing the person or
4
organisation, or the proprietor of the undertaking, would, or could
5
reasonably be expected to:
6
(a) prejudice the conduct of an investigation of a breach, or
7
possible breach, of the law, or a failure, or possible failure, to
8
comply with a law relating to taxation or prejudice the
9
enforcement or proper administration of the law in a
10
particular instance; or
11
(b) disclose, or enable a person to ascertain, the existence or
12
identity of a confidential source of information, or the
13
non-existence of a confidential source of information, in
14
relation to the enforcement or administration of the law; or
15
(c) endanger the life or physical safety of any person; or
16
(d) cause damage to the security, defence or international
17
relations of the Commonwealth.
18
20 At the end of subsection 59A(3)
19
Add "unless the Tribunal orders, on the application of the agency or the
20
Minister concerned, that it would not be appropriate to do so in the
21
circumstances".
22
21 At the end of section 59A
23
Add:
24
(4) For the purposes of determining, under subsection (3), whether it
25
would not be appropriate for the person, or if the person is
26
deceased, the legal representative of the person, to be informed
27
under subsection (3), the Tribunal must have regard to whether
28
informing the person, or the legal representative of the person,
29
would, or could reasonably be expected to:
30
(a) prejudice the conduct of an investigation of a breach, or
31
possible breach, of the law, or a failure, or possible failure, to
32
comply with a law relating to taxation or prejudice the
33
enforcement or proper administration of the law in a
34
particular instance; or
35
(b) disclose, or enable a person to ascertain, the existence or
36
identity of a confidential source of information, or the
37
Freedom of Information Act 1982 Schedule 1
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 7
non-existence of a confidential source of information, in
1
relation to the enforcement or administration of the law; or
2
(c) endanger the life or physical safety of any person; or
3
(d) cause damage to the security, defence or international
4
relations of the Commonwealth.
5
22 At the end of paragraph 60(a)
6
Add "and".
7
23 Paragraph 60(b)
8
Omit "; and", substitute ".".
9
24 Paragraph 60(c)
10
Repeal the paragraph.
11
25 After section 60
12
Insert:
13
60A Inspector-General of Intelligence and Security must be
14
requested to give evidence in certain proceedings
15
(1) This section applies in any proceedings before the Tribunal under
16
this Act in relation to a document that is claimed to be an exempt
17
document under section 33.
18
(2) Before determining that the document is not an exempt document
19
under section 33, the Tribunal must request the Inspector-General
20
of Intelligence and Security to appear personally and give evidence
21
on:
22
(a) the damage that would, or could reasonably be expected to,
23
be caused to:
24
(i) the security of the Commonwealth; or
25
(ii) the defence of the Commonwealth; or
26
(iii) the international relations of the Commonwealth;
27
if access to the document were given in accordance with the
28
request; or
29
(b) whether giving access to the document in accordance with
30
the request would divulge any information or matter
31
communicated in confidence by or on behalf of a foreign
32
government, an authority of a foreign government or an
33
Schedule 1 Freedom of In formation Act 1982
8 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
international organisation to the Government of the
1
Commonwealth, to an authority of the Commonwealth or to a
2
person receiving the communication on behalf of the
3
Commonwealth or of an authority of the Commonwealth.
4
(3) Before determining that an agency or Minister must grant access to
5
a copy of the document with deletions, the Tribunal must request
6
the Inspector-General to appear personally and give evidence on:
7
(a) the damage that would, or could reasonably be expected to,
8
be caused to:
9
(i) the security of the Commonwealth; or
10
(ii) the defence of the Commonwealth; or
11
(iii) the international relations of the Commonwealth;
12
if the proposed deletions were not made; or
13
(b) whether giving access to the document without the proposed
14
deletions would divulge any information or matter
15
communicated in confidence by or on behalf of a foreign
16
government, an authority of a foreign government or an
17
international organisation to the Government of the
18
Commonwealth, to an authority of the Commonwealth or to a
19
person receiving the communication on behalf of the
20
Commonwealth or of an authority of the Commonwealth.
21
(4) Before hearing the evidence of the Inspector-General, the Tribunal
22
must hear any evidence to be given or submissions to be made by
23
or on behalf of the agency to which or the Minister to whom the
24
request was made for access to the document.
25
(5) The Inspector-General must comply with a request under
26
subsection (2) or (3) unless, in the opinion of the
27
Inspector-General, the Inspector-General is not appropriately
28
qualified to give evidence on the matters in relation to which the
29
Inspector-General has been requested to give evidence.
30
(6) For the purposes of enabling the Inspector-General to comply with
31
a request under subsection (2) or (3):
32
(a) the Tribunal must allow the Inspector-General to take
33
possession of, and make copies of or take extracts from, any
34
document given to the Tribunal for the purposes of the
35
proceeding; and
36
(b) the Inspector-General may require the production of the
37
document that is claimed to be an exempt document under
38
Freedom of Information Act 1982 Schedule 1
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 9
section 33 by the agency to which or the Minister to whom
1
the request was made for access to the document; and
2
(c) the Inspector-General may require the production of any
3
document of an agency or official document of a Minister
4
that relates to the document mentioned in paragraph (b) by
5
the agency or Minister; and
6
(d) the Inspector-General may make copies of, or take extracts
7
from, the documents mentioned in paragraphs (b) and (c);
8
and
9
(e) after such period as is reasonably necessary for the purposes
10
of giving evidence to the Tribunal, the Inspector-General
11
must:
12
(i) return the original of any document to the Tribunal or to
13
the agency or Minister; and
14
(ii) destroy any copies of or extracts taken from any
15
document.
16
(7) The Inspector-General must permit a person who would be entitled
17
to inspect a document mentioned in paragraphs (6)(a) to (d) if it
18
were not in the possession of the Inspector-General to inspect the
19
document at all reasonable times as the person would be so
20
entitled.
21
(8) The Tribunal is not bound by any opinion of the Inspector-General
22
expressed while giving evidence under this section.
23
(9) The Tribunal must allow the Inspector-General a period within
24
which to consider the documents mentioned in paragraphs (6)(a) to
25
(d) that is reasonable having regard to:
26
(a) the nature of the evidence that the Inspector-General has been
27
requested to give; and
28
(b) the time required by the Inspector-General to perform the
29
Inspector-General's other functions.
30
(10) The fact that a person is obliged to produce a document under
31
subsection (6) does not otherwise affect a claim of legal
32
professional privilege that anyone may make in relation to that
33
document.
34
26 Subsection 63(1)
35
Repeal the subsection, substitute:
36
Schedule 1 Freedom of In formation Act 1982
10 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
(1) In determining whether the Tribunal is satisfied that it is desirable
1
to make an order or orders under subsection 35(2) of the
2
Administrative Appeals Tribunal Act 1975, the Tribunal must:
3
(a) have regard to:
4
(i) the necessity of avoiding the disclosure to the applicant
5
of exempt matter contained in a document to which the
6
proceedings relate; and
7
(ii) the necessity of avoiding the disclosure to the applicant
8
of information of the kind referred to in subsection
9
25(1); and
10
(b) where the proceedings relate to a document that is claimed to
11
be an exempt document under section 33--give particular
12
weight to a submission made by an agency or a Minister that
13
it is desirable to make the order or orders under subsection
14
35(2) of the Administrative Appeals Tribunal Act 1975
15
because disclosure of the document:
16
(i) would, or could reasonably be expected to, cause
17
damage to the security, defence or international
18
relations of the Commonwealth; or
19
(ii) would divulge information or matter communicated in
20
confidence by or on behalf of a foreign government, an
21
authority of a foreign government or an international
22
organisation to the Government of the Commonwealth,
23
to an authority of the Commonwealth or to a person
24
receiving the communication on behalf of the
25
Commonwealth or of an authority of the
26
Commonwealth.
27
27 Paragraphs 63(2)(a) and (b)
28
Omit "subsection (1)", substitute "paragraph (1)(a)".
29
28 Subsection 64(1)
30
Repeal the subsection, substitute:
31
(1) Section 37 of the Administrative Appeals Tribunal Act 1975 does
32
not apply in relation to a document that is claimed to be an exempt
33
document, but in proceedings before the Tribunal in relation to
34
such a document, the Tribunal may, for the purpose of deciding
35
whether the document is an exempt document, require the
36
document to be produced for inspection by members of the
37
Tribunal only.
38
Freedom of Information Act 1982 Schedule 1
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 11
(1AA) If, upon the inspection, the Tribunal is satisfied that the document
1
is an exempt document, the Tribunal must return the document to
2
the person by whom it was produced without permitting a person
3
to have access to the document, or disclosing the contents of the
4
document to a person, unless the person is:
5
(a) a member of the Tribunal as constituted for the purposes of
6
the proceeding; or
7
(b) a member of the staff of the Tribunal in the course of the
8
performance of his or her duties as a member of that staff; or
9
(c) in the circumstances permitted under paragraph 60A(6)(a)--
10
the Inspector-General of Intelligence and Security.
11
29 Subsection 64(2)
12
Omit all the words after "return the document to the person by whom it
13
was produced without permitting", substitute:
14
a person to have access to the document, or disclosing the contents
15
of the document to a person, unless the person is:
16
(a) a member of the Tribunal as constituted for the purposes of
17
the proceeding; or
18
(b) a member of the staff of the Tribunal in the course of the
19
performance of his or her duties as a member of that staff; or
20
(c) in the circumstances permitted under paragraph 60A(6)(a)--
21
the Inspector-General of Intelligence and Security.
22
Note:
The Tribunal is not entitled, under this section, to require production
23
of documents that are exempt under section 33 or 34, but is entitled to
24
do so under section 58E if the Tribunal is not satisfied by evidence on
25
affidavit or otherwise that the document is an exempt document.
26
30 Subsections 64(3) and (4)
27
Repeal the subsections.
28
31 Subsection 64(4A)
29
Omit ", (2) or (4)", substitute "or (2)".
30
32 Section 65
31
Repeal the section.
32
33 At the end of Part VI
33
Add:
34
Schedule 1 Freedom of In formation Act 1982
12 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
67 Automatic stay of certain decisions on appeal
1
(1) This section applies if:
2
(a) a person applies, under section 55, to the Tribunal for review
3
of a decision by an agency or Minister refusing to grant
4
access to a document in accordance with a request, being a
5
document that is claimed to be an exempt document; and
6
(b) the Tribunal decides that a person may have access to the
7
document; and
8
(c) the agency or the Minister institutes an appeal to the Federal
9
Court of Australia from the decision of the Tribunal.
10
(2) If this section applies to a decision of the Tribunal, the operation of
11
the decision is stayed by force of this section from the time at
12
which the appeal is instituted.
13
(3) If the agency or the Minister appeals to the Federal Court of
14
Australia from the decision of the Tribunal and the appeal in
15
relation to the decision is determined by the Federal Court of
16
Australia, the stay continues to have effect until the earlier of:
17
(a) the time at which the decision of the Federal Court of
18
Australia on the appeal takes effect; and
19
(b) the time otherwise determined by the Federal Court of
20
Australia.
21
(4) If the agency or the Minister appeals to the Federal Court of
22
Australia from the decision of the Tribunal and the appeal in
23
relation to the decision is determined by the Federal Magistrates
24
Court, the stay continues to have effect until the earlier of:
25
(a) the time at which the decision of the Federal Magistrates
26
Court on the appeal takes effect; and
27
(b) the time otherwise determined by the Federal Magistrates
28
Court.
29
(5) Nothing in this section affects the power of the Federal Court of
30
Australia or the Federal Magistrates Court to make orders under
31
section 44A of the Administrative Appeals Tribunal Act 1975 in
32
relation to matters other than staying the decision of the Tribunal.
33
34 Application provision
--
items 4 to 32
34
Freedom of Information Act 1982 Schedule 1
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 13
(1)
The amendments made by items 4 to 32 of this Schedule apply for the
1
purposes of determining whether access to a document of an agency or
2
an official document of a Minister will be given in accordance with a
3
request made under subsection 15(2) of the Freedom of Information Act
4
1982 and received by the agency or Minister on or after the
5
commencement of this Schedule.
6
(2)
A certificate issued in relation to a document under subsection 33(2),
7
33(4), 33A(2), 33A(4), 34(2), 34(4), 35(2), 35(4) or 36(3) of the
8
Freedom of Information Act 1982 (as in force immediately before the
9
commencement of this Schedule) is, by force of this subitem, revoked
10
in relation to the document on and from the time at which the first
11
request for access to the document under the Freedom of Information
12
Act 1982 is made on or after the commencement of this Schedule.
13
(3)
To avoid doubt:
14
(a) subitem (2) does not affect anything done in relation to, or in
15
reliance on, a certificate mentioned in subitem (2) before the
16
commencement of this Schedule; and
17
(b) nothing prevents a person from making a request, on and
18
after the commencement of this Schedule, for access to a
19
document of an agency or an official document of a Minister
20
under the Freedom of Information Act 1982 if:
21
(i) before the commencement of this Schedule, the person
22
made a request for access to the same document; and
23
(ii) the request was refused in reliance on a certificate
24
mentioned in subitem (2).
25
35 Application provision
--
item 33
26
The amendment made by item 33 of this Schedule applies to a decision
27
of the Tribunal made on or after the commencement of this Schedule.
28
29
Schedule 2 Archives Act 1983
14 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
1
Schedule 2
--
Archives Act 1983
2
3
1 Subsections 29(6) and (7)
4
Repeal the subsections, substitute:
5
(6) A record that is in the open access period is not, by virtue of a
6
determination under subsection (1), a record to which
7
paragraph (1)(b) applies unless:
8
(a) the record is an exempt record for the reason that it contains
9
information or matter of a kind referred to in paragraph
10
33(1)(a) or (b); and
11
(b) a security classification applies to the record such that access
12
by the Archives would not be appropriate.
13
(7) A record that is in the open access period is not, by virtue of a
14
determination under subsection (2), a record to which
15
paragraph (2)(b) applies unless:
16
(a) the record is an exempt record for the reason that it contains
17
information or matter of a kind referred to in paragraph
18
33(1)(a) or (b); and
19
(b) a security classification applies to the record such that access
20
by the Archives would not be appropriate.
21
2 Section 34
22
Repeal the section.
23
3 Section 41
24
Repeal the section.
25
4 Subsections 44(4), (5) and (6)
26
Repeal the subsections.
27
5 Section 45
28
Repeal the section.
29
6 Subsection 46(1)
30
Repeal the subsection, substitute:
31
Archives Act 1983 Schedule 2
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 15
(1) If an application is made to the Tribunal for review of a decision
1
refusing to grant access to a record in accordance with an
2
application under section 40, being a record that is:
3
(a) claimed to be an exempt record for the reason that it contains
4
information or matter of a kind referred to in paragraph
5
33(1)(a) or (b); and
6
(b) not a record of the Australian Security Intelligence
7
Organisation;
8
then the Tribunal must be constituted in accordance with
9
subsection (2) for the purposes of any proceeding in relation to the
10
application.
11
Note:
Section 21AB of the Administrative Appeals Tribunal Act 1975
12
contains the requirements for constitution of the Tribunal in
13
proceedings about a record of the Australian Security Intelligence
14
Organisation that is claimed to be an exempt record for the reason that
15
it contains information or matter of a kind referred to in paragraph
16
33(1)(a) or (b).
17
Note:
The heading to section 46 is replaced by the heading "Constitution of Tribunal for
18
proceedings about certain exempt records".
19
7 Section 47
20
Repeal the section.
21
8 Section 49
22
Repeal the section.
23
9 Section 50
24
Repeal the section, substitute:
25
50 Parties
26
For the purposes of this Part and of the application of the
27
Administrative Appeals Tribunal Act 1975 in respect of
28
proceedings under this Part, a decision given by the Archives is
29
taken to have been given by the Director-General.
30
10 After section 50
31
Insert:
32
Schedule 2 Archives Act 1983
16 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
50A Inspector-General of Intelligence and Security must be
1
requested to give evidence in certain proceedings
2
(1) This section applies in any proceedings before the Tribunal under
3
this Act in relation to a record that is claimed to be an exempt
4
record for the reason that it contains information or matter of a
5
kind referred to in paragraph 33(1)(a) or (b).
6
(2) Before determining that the record is not an exempt record, the
7
Tribunal must request the Inspector-General of Intelligence and
8
Security to appear personally and give evidence on:
9
(a) the damage that could reasonably be expected to be caused to
10
the security, defence or international relations of the
11
Commonwealth if the record were made available for public
12
access; or
13
(b) whether making the record available for public access would
14
constitute a breach of confidence by disclosing information
15
or matter communicated in confidence by or on behalf of a
16
foreign government, an authority of a foreign government or
17
an international organisation to the Government of the
18
Commonwealth, to an authority of the Commonwealth or to a
19
person receiving the communication on behalf of the
20
Commonwealth or of an authority of the Commonwealth.
21
(3) Before determining that part of, or a copy of part of, the record is
22
to be made available for public access under section 38, the
23
Tribunal must request the Inspector-General to appear personally
24
and give evidence on:
25
(a) whether making that part, or a copy of that part, of the record
26
available for public access could reasonably be expected to
27
cause damage to the security, defence or international
28
relations of the Commonwealth; or
29
(b) whether making that part, or a copy of that part, of the record
30
available for public access would constitute a breach of
31
confidence by disclosing information or matter
32
communicated in confidence by or on behalf of a foreign
33
government, an authority of a foreign government or an
34
international organisation to the Government of the
35
Commonwealth, to an authority of the Commonwealth or to a
36
person receiving the communication on behalf of the
37
Commonwealth or of an authority of the Commonwealth.
38
Archives Act 1983 Schedule 2
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 17
(4) Before hearing the evidence of the Inspector-General, the Tribunal
1
must hear any evidence to be given or submissions to be made by
2
or on behalf of:
3
(a) the Archives; or
4
(b) the Commonwealth institution of which the record is
5
property.
6
(5) The Inspector-General must comply with a request under
7
subsection (2) or (3) unless, in the opinion of the
8
Inspector-General, the Inspector-General is not appropriately
9
qualified to give evidence on the matters in relation to which the
10
Inspector-General has been requested to give evidence.
11
(6) For the purposes of enabling the Inspector-General to comply with
12
a request under subsection (2) or (3):
13
(a) the Tribunal must allow the Inspector-General to take
14
possession of, and make copies of or take extracts from, any
15
record given to the Tribunal for the purposes of the
16
proceeding; and
17
(b) the Inspector-General may require the production of the
18
record that is claimed to be an exempt record for the reason
19
that it contains information or matter of a kind referred to in
20
paragraph 33(1)(a) or (b); and
21
(c) the Inspector-General may require the production of any
22
Commonwealth record that relates to the record mentioned in
23
paragraph (b); and
24
(d) the Inspector-General may make copies of, or take extracts,
25
from the records mentioned in paragraphs (b) and (c); and
26
(e) after such period as is reasonably necessary for the purposes
27
of giving evidence to the Tribunal, the Inspector-General
28
must:
29
(i) return the original of any record to the Tribunal or to the
30
entity that produced the record; and
31
(ii) destroy any copies of or extracts taken from any record.
32
(7) The Inspector-General must permit a person who would be entitled
33
to inspect a record mentioned in paragraphs (6)(a) to (d) if it were
34
not in the possession of the Inspector-General to inspect the record
35
at all reasonable times as the person would be so entitled.
36
(8) The Tribunal is not bound by any opinion of the Inspector-General
37
expressed while giving evidence under this section.
38
Schedule 2 Archives Act 1983
18 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
(9) The Tribunal must allow the Inspector-General a period within
1
which to consider the records mentioned in paragraphs (6)(a) to (d)
2
that is reasonable having regard to:
3
(a) the nature of the evidence that the Inspector-General has been
4
requested to give; and
5
(b) the time required by the Inspector-General to perform the
6
Inspector-General's other functions.
7
(10) The fact that a person is obliged to produce a document under
8
subsection (6) does not otherwise affect a claim of legal
9
professional privilege that anyone may make in relation to that
10
document.
11
11 Subsection 52(1)
12
Repeal the subsection, substitute:
13
(1) In determining whether the Tribunal is satisfied that it is desirable
14
to make an order or orders under subsection 35(2) of the
15
Administrative Appeals Tribunal Act 1975 for the purposes of
16
proceedings in relation to an application under section 43, the
17
Tribunal must:
18
(a) have regard to:
19
(i) the necessity of avoiding the disclosure to the applicant
20
of matter contained in a record to which the proceedings
21
relate, being matter by reason of which the record is an
22
exempt record; and
23
(ii) the necessity of avoiding the disclosure to the applicant
24
of information of the kind referred to in subsection
25
39(1); and
26
(b) where the proceedings relate to a record that is claimed to be
27
an exempt record for the reason that it contains information
28
or matter of a kind referred to in paragraph 33(1)(a) or (b)--
29
give particular weight to a submission made by the Archives
30
that it is desirable to make the order or orders under
31
subsection 35(2) of the Administrative Appeals Tribunal Act
32
1975 because the record contains information or matter of
33
that kind.
34
12 Paragraphs 52(2)(a) and (b)
35
Omit "subsection (1)", substitute "paragraph (1)(a)".
36
Archives Act 1983 Schedule 2
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 19
13 Subsection 53(1)
1
Repeal the subsection, substitute:
2
(1) Section 37 of the Administrative Appeals Tribunal Act 1975 does
3
not apply in relation to a record that is claimed to be an exempt
4
record, but in proceedings before the Tribunal in relation to such a
5
record, if the Tribunal is not satisfied, by evidence on affidavit or
6
otherwise, that the record is an exempt record, it may require the
7
record to be produced for inspection by members of the Tribunal
8
only.
9
(1A) If, upon the inspection, the Tribunal is satisfied that the record is an
10
exempt record, the Tribunal must return the record to the person by
11
whom it was produced without permitting a person to have access
12
to the record, or disclosing the contents of the record to a person,
13
unless the person is:
14
(a) a member of the Tribunal as constituted for the purposes of
15
the proceeding; or
16
(b) a member of the staff of the Tribunal in the course of the
17
performance of his or her duties as a member of that staff; or
18
(c) in the circumstances permitted under paragraph 50A(6)(a)--
19
the Inspector-General of Intelligence and Security.
20
14 Subsection 53(2)
21
Omit all the words after "return the record to the person by whom it was
22
produced without permitting", substitute:
23
a person to have access to the record or disclosing the contents of
24
the record to a person, unless the person is:
25
(a) a member of the Tribunal as constituted for the purposes of
26
the proceeding; or
27
(b) a member of the staff of the Tribunal in the course of the
28
performance of his or her duties as a member of that staff; or
29
(c) in the circumstances permitted under paragraph 50A(6)(a)--
30
the Inspector-General of Intelligence and Security.
31
15 Subsections 53(3) and (4)
32
Repeal the subsections.
33
16 Section 54
34
Repeal the section.
35
Schedule 2 Archives Act 1983
20 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
17 At the end of Division 4 of Part V
1
Add:
2
55A Automatic stay of certain decisions on appeal
3
(1) This section applies if:
4
(a) a person applies, under section 43, to the Tribunal for review
5
of a decision refusing to make a record that is claimed to be
6
an exempt record available for public access; and
7
(b) the Tribunal decides that a person may have access to the
8
record, or part of the record; and
9
(c) the Archives institutes an appeal to the Federal Court of
10
Australia from the decision of the Tribunal.
11
(2) If this section applies to a decision of the Tribunal, the operation of
12
the decision is stayed by force of this section from the time at
13
which the appeal is instituted.
14
(3) If the Archives appeals to the Federal Court of Australia from the
15
decision of the Tribunal and the appeal in relation to the decision is
16
determined by the Federal Court of Australia, the stay continues to
17
have effect until the earlier of:
18
(a) the time at which the decision of the Federal Court of
19
Australia on the appeal takes effect; and
20
(b) the time otherwise determined by the Federal Court of
21
Australia.
22
(4) If the Archives appeals to the Federal Court of Australia from the
23
decision of the Tribunal and the appeal in relation to the decision is
24
determined by the Federal Magistrates Court, the stay continues to
25
have effect until the earlier of:
26
(a) the time at which the decision of the Federal Magistrates
27
Court on the appeal takes effect; and
28
(b) the time otherwise determined by the Federal Magistrates
29
Court.
30
(5) Nothing in this section affects the power of the Federal Court of
31
Australia or the Federal Magistrates Court to make orders under
32
section 44A of the Administrative Appeals Tribunal Act 1975 in
33
relation to matters other than staying the decision of the Tribunal.
34
18 Subsection 66(2)
35
Archives Act 1983 Schedule 2
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 21
Omit all the words from and including ", other than:".
1
19 Application provision
--
item 1
2
The amendments made by item 1 of this Schedule do not apply to a
3
Commonwealth record if:
4
(a) the record is in the open access period; and
5
(b) a determination has been made in respect of the record under
6
subsection 29(1) or (2) of the Archives Act 1983; and
7
(c) a certificate under section 34 of the Archives Act 1983 (as in
8
force immediately before the commencement of this
9
Schedule) is in force in respect of the record.
10
Note:
A certificate ceases to be in force if it is revoked by force of subitem
11
20(2).
12
20 Application provision
--
items 2 to 16
13
(1)
The amendments made by items 2 to 16 of this Schedule apply for the
14
purposes of determining whether access, or an extension of partial
15
access, to a record referred to in section 31 of the Archives Act 1983
16
will be given in accordance with an application made under section 40
17
of that Act and received by the Archives on or after the commencement
18
of this Schedule.
19
(2)
A certificate issued in relation to a Commonwealth record under
20
section 34 of the Archives Act 1983 (as in force immediately before the
21
commencement of this Schedule) is, by force of this subitem, revoked
22
in relation to the record on and from the time at which the first
23
application for access to the record under the Archives Act 1983 is
24
made, on or after the commencement of this Schedule.
25
(3)
To avoid doubt:
26
(a) subitem (2) does not affect anything done in relation to, or in
27
reliance on, a certificate mentioned in subitem (2) before the
28
commencement of this Schedule; and
29
(b) nothing prevents a person from applying, on and after the
30
commencement of this Schedule, for access to a
31
Commonwealth record under the Archives Act 1983 if:
32
(i) before the commencement of this Schedule, the person
33
applied for access to the same record; and
34
(ii) the application was refused in reliance on a certificate
35
mentioned in subitem (2).
36
Schedule 2 Archives Act 1983
22 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
21 Application provision
--
item 17
1
The amendment made by item 17 of this Schedule applies to a decision
2
of the Tribunal made on or after the commencement of this Schedule.
3
22 Application provision
--
item 18
4
The amendment made by item 18 of this Schedule does not apply to a
5
record, or a part of a record, if:
6
(a) the record is in the open access period; and
7
(b) one of the following applies:
8
(i) in relation to the record--a certificate issued under
9
section 34 of the Archives Act 1983 (as in force
10
immediately before the commencement of this
11
Schedule) is in force in respect of the record;
12
(ii) in relation to the part of the record--the part of the
13
record is identified in accordance with subsection 34(2)
14
of that Act (as in force immediately before the
15
commencement of this Schedule) in a certificate issued
16
under section 34 of that Act (as in force immediately
17
before the commencement of this Schedule).
18
Note:
A certificate ceases to be in force if it is revoked by force of subitem
19
20(2).
20
21
Admin istrative Appeals Tribunal Act 1975 Schedule 3
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 23
1
Schedule 3
--
Administrative Appeals Tribunal
2
Act 1975
3
4
1 Subsection 21AA(1)
5
After "Security Appeals Division", insert "(other than a proceeding to
6
which section 21AB applies)".
7
Note:
The heading to section 21AA is altered by adding at the end "--general".
8
2 After section 21AA
9
Insert:
10
21AB Constitution of Security Appeals Division--proceedings to
11
review ce rtain decisions unde r the Archives Act 1983
12
Scope
13
(1) This section applies to a proceeding in the Security Appeals
14
Division in relation to a review of a decision of the Australian
15
Archives under the Archives Act 1983 refusing to grant access to a
16
record in accordance with an application under section 40 of that
17
Act, being a record that is:
18
(a) a record of the Australian Security Intelligence Organisation;
19
and
20
(b) claimed to be an exempt record for the reason that it contains
21
information or matter of a kind referred to in paragraph
22
33(1)(a) or (b) of that Act.
23
Constitution of Security Appeals Division
24
(2) Subject to this section, the Security Appeals Division is to be
25
constituted by:
26
(a) 3 presidential members; or
27
(b) a presidential member alone.
28
When presidential member must not participate
29
(3) A presidential member must not participate in the proceeding if he
30
or she is, or has been, the Director-General of Security or an
31
Schedule 3 Admin istrative Appeals Tribunal Act 1975
24 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
officer, employee or agent of the Australian Security Intelligence
1
Organisation.
2
Reconstitution of Division at the request of a party
3
(4) At any time during the hearing of a proceeding before the Division,
4
constituted by a presidential member alone, a party to the
5
proceeding may apply to the Division as constituted for the
6
purposes of the proceeding requesting that the Division be
7
reconstituted for the purposes of the proceeding.
8
(5) If an application is made under subsection (4), the Division as
9
constituted for the purposes of the proceeding must, after receiving
10
the submissions made in support of the application and any
11
submissions made in opposition to the application, notify the
12
President of the making of the application and give him or her
13
particulars of those submissions.
14
(6) The President may, after taking the submissions into account, if he
15
or she considers that the matters to which the proceeding relates
16
are of such public importance as to justify him or her in so doing,
17
give a direction that the Division as constituted for the purposes of
18
the proceeding be reconstituted by 3 presidential members.
19
(7) If a direction is given under subsection (6), the Division as
20
reconstituted in accordance with the direction must continue the
21
proceeding and may either:
22
(a) complete the proceeding; or
23
(b) at any time remit the proceeding to the Division as previously
24
constituted for completion by the Division as previously
25
constituted.
26
(8) If the Division as reconstituted remits a proceeding to the Division
27
as previously constituted, the Division as reconstituted may give
28
directions in relation to the proceeding to the Division as
29
previously constituted and the Division as previously constituted
30
must, in making a decision on the review, comply with those
31
directions.
32
Admin istrative Appeals Tribunal Act 1975 Schedule 3
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 25
Member presiding
1
(9) At the hearing of a proceeding before the Division at which the
2
Division is constituted for the purposes of the proceeding by
3
presidential members:
4
(a) if the President is a member of the Division as so
5
constituted--he or she is to preside; or
6
(b) if the President is not a member of the Division as so
7
constituted, but only one presidential member who is a Judge
8
is a member of the Division as so constituted--that
9
presidential member is to preside; or
10
(c) if the President is not a member of the Division as so
11
constituted, but 2 or more presidential members who are
12
Judges are members of the Division as so constituted--the
13
senior Judge is to preside; or
14
(d) if neither the President, nor a Judge is a member of the
15
Division as so constituted--a Deputy President of the
16
Division as so constituted who is directed by the President to
17
do so is to preside.
18
What happens if member ceases to be available
19
(10) If, before the proceeding has been completed, one of the members
20
constituting the Division for the purposes of the proceeding has
21
ceased to be available for the purposes of the proceeding the
22
proceeding is to be reheard by the Division as reconstituted in
23
accordance with this section.
24
Regard may be had to record of previous proceeding
25
(11) If the Division:
26
(a) is reconstituted in accordance with a direction under
27
subsection (6); or
28
(b) is reconstituted because proceedings are remitted under
29
paragraph (7)(b) to the Division as previously constituted; or
30
(c) is reconstituted under subsection (10) because a member
31
ceases to be available;
32
the members of the Division may have regard to any record of the
33
proceeding in the Division as previously constituted, including a
34
record of any evidence taken in the proceeding.
35
36
Schedule 4 Inspector-General o f Intelligence and Security Act 1986
26 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
1
Schedule 4
--
Inspector-General of Intelligence
2
and Security Act 1986
3
4
1 Paragraph 34(1)(a)
5
After "acquired", insert "under this Act".
6
2 After subsection 34(1)
7
Insert:
8
(1AA) Subject to subsection (1A), a person who is, or has at any time
9
been, the Inspector-General or a member of the staff of the
10
Inspector-General or who is acting, or has at any time acted, as the
11
Inspector-General or as a member of the staff of the
12
Inspector-General must not, either directly or indirectly, except in
13
the performance of his or her functions or duties or in the exercise
14
of his or her powers under section 60A of the Freedom of
15
Information Act 1982:
16
(a) make a record of, or divulge or communicate to any person,
17
any information acquired under that section by reason of the
18
person holding, or acting in, that office; or
19
(b) make use of any such information.
20
Penalty: $5,000 or imprisonment for 2 years, or both.
21
(1AB) Subject to subsection (1A), a person who is, or has at any time
22
been, the Inspector-General or a member of the staff of the
23
Inspector-General or who is acting, or has at any time acted, as the
24
Inspector-General or as a member of the staff of the
25
Inspector-General must not, either directly or indirectly, except in
26
the performance of his or her functions or duties or in the exercise
27
of his or her powers under section 50A of the Archives Act 1983:
28
(a) make a record of, or divulge or communicate to any person,
29
any information acquired under that section by reason of the
30
person holding, or acting in, that office; or
31
(b) make use of any such information.
32
Penalty: $5,000 or imprisonment for 2 years, or both.
33
3 Subsection 34(1A)
34
Inspector-General of Intelligence and Security Act 1986 Schedule 4
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
No. , 2008 27
Omit "Subsection (1) does", substitute "Subsections (1), (1AA) and
1
(1AB) do".
2
4 Paragraphs 34(1A)(a) and (b)
3
Omit "subsection (1)", substitute "the subsection".
4
5 Subsection 34(2)
5
After "subsection (1)", insert ", (1AA) or (1AB)".
6
6 Subsection 34(3)
7
After "subsection (1)", insert ", (1AA) or (1AB)".
8
7 Subsection 34(4)
9
After "subsection (1)", insert ", (1AA) or (1AB)".
10
8 Subsection 34(5)
11
Repeal the subsection, substitute:
12
(5) A person who is, or has at any time been, the Inspector-General or
13
a member of the staff of the Inspector-General or who is acting, or
14
has at any time acted, as the Inspector-General or as a member of
15
the staff of the Inspector-General must not be required to:
16
(a) produce in a court any document of which the person has
17
custody, or to which the person has access, because the
18
person is performing functions or duties or exercising powers
19
under this Act, section 60A of the Freedom of Information
20
Act 1982 or section 50A of the Archives Act 1983; or
21
(b) divulge or communicate to a court any information obtained
22
by the person because the person is performing those
23
functions or duties or exercising those powers;
24
except where it is necessary to do so:
25
(c) if the information is obtained by the person because the
26
person is performing functions or duties or exercising powers
27
under this Act--for the purposes of this Act; and
28
(d) if the information is obtained by the person because the
29
person is performing functions or duties or exercising powers
30
under section 60A of the Freedom of Information Act 1982--
31
for the purposes of that section; and
32
(e) if the information is obtained by the person because the
33
person is performing functions or duties or exercising powers
34
Schedule 4 Inspector-General o f Intelligence and Security Act 1986
28 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill
2008 No. , 2008
under section 50A of the Archives Act 1983--for the
1
purposes of that section.
2
9 Subsection 34(7)
3
Repeal the subsection.
4

 


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