Commonwealth Numbered Acts

Freedom of Information Amendment Act 1983 No. 81 of 1983 - SECT 34

34. After section 58 of the Principal Act the following sections are inserted:
Proceedings upon exercise of powers under sub-section 58 (4), (5) or (5A)



''58A. (1) Where, in considering a question referred to in sub-section 58 (4),
(5) or (5A) in relation to a document in respect of which a certificate has
been given, the Tribunal determines that there do not exist reasonable grounds
for the claim to which the question relates, the appropriate Minister shall,
not later than 28 days after the determination of the Tribunal is communicated
to him, make a decision-

   (a)  to revoke the certificate; or

   (b)  not to revoke the certificate.

''(2) Where a Minister makes a decision under sub-section (1) to revoke a
certificate-

   (a)  in a case where the certificate was given under sub-section 33 (2),
        33A (2), 34 (2) or (4) or 35 (2) or (4)-the claim that the document to
        which the certificate relates is an exempt document shall be taken,
        for the purposes of this Act, to have been withdrawn; and

   (b)  in a case where the certificate was given under sub-section 33 (4) or
        33A (4)-the Minister shall, forthwith upon the revocation of the
        certificate, inform the applicant of the existence or non-existence of
        the document to which the certificate relates.

''(3) Where a Minister makes a decision under sub-section (1) not to revoke a
certificate, he shall-

   (a)  cause notice in writing of the decision to be furnished to the
        applicant forthwith; and

   (b)  cause a copy of the notice to be laid before each House of the
        Parliament within 5 sitting days of that House after the notice is so
        furnished.

''(4) A notice under sub-section (3) shall state the findings of the Minister
giving the notice on any material question of fact, the material on which
those findings were based, and the reasons for the decision.

''(5) A Minister is not required to include in a notice under sub-section (3)
matter that is of such a nature that its inclusion in a document of an agency
would cause that document to be an exempt document under section 33, 33A, 34,
35 or 36.

''(6) A Minister is not required to include in a notice under sub-section (3)
information as to the existence or non-existence of a document or the
existence or non-existence of a state of fact if that information would, if
included in a document of an agency, cause that last-mentioned document to be
an exempt document under section 33, 33A, 34 or 35.

''(7) Section 13 of the Administrative Decisions (Judicial Review) Act 1977
does not apply to a decision of a Minister under this section.

''(8) Nothing in this section shall be taken to imply that a certificate under
sub-section 33, 33A, 34, 35 or 36 may not be revoked otherwise than in
pursuance of a decision under sub-section (1).

''(9) For the purposes of this section, 'appropriate Minister' means-

   (a)  in relation to a document in respect of which there is a certificate
        in force under section 33, 33A or 36-the Minister who gave, or whose
        delegate gave, that certificate; or

   (b)  in relation to a document in respect of which there is a certificate
        in force under section 34 or 35-the Prime Minister.
Constitution of Tribunal for purposes of proceedings under sub-section 58 (4),
(5) or (5A)

''58B. (1) Where a request is made to the Tribunal in accordance with
sub-section 58 (4), (5) or (5A), the Tribunal shall be constituted in
accordance with sub-section (2) for the purposes of any proceeding for the
determination of the question to which the request relates.

''(2) For the purposes of a proceeding referred to in sub-section (1), the
Tribunal shall be constituted by-

   (a)  3 presidential members; or

   (b)  a presidential member alone.

''(3) In its application to a proceeding referred to in sub-section (1),
section 21A of the Administrative Appeals Tribunal Act 1975 applies as if-

   (a)  sub-section (1) of that section were omitted and the following
        sub-section substituted:

'(1) At any time during the hearing of a proceeding before the Tribunal
constituted in accordance with sub-section 58B (2) of the Freedom of 
Information Act 1982 by a presidential member alone, a party to the proceeding
may make an application to the Tribunal as constituted for the purposes of
that proceeding requesting that the Tribunal be reconstituted for the purposes
of that proceeding.'; and

   (b)  sub-section (3) of that section were omitted and the following
        sub-section substituted:

'(3) The President may, after taking the submissions into account, if he
considers that the matters to which the proceeding relates are of such public
importance as to justify him in so doing, give a direction varying the
constitution of the Tribunal for the purposes of that proceeding so that the
Tribunal is constituted by 3 presidential members.'.

''(4) In its application to a proceeding referred to in sub-section (1),
section 22 of the Administrative Appeals Tribunal Act 1975 applies as if there
were inserted after paragraph (1) (aa) of that section the following
paragraphs:

'(ab) if the Tribunal is constituted by presidential members of whom at least
2 are Judges and none of whom is the President-the senior Judge shall preside;

   (ac) if the Tribunal is constituted by presidential members none of whom is
        a Judge-one of those presidential members who is directed by the
        President to do so shall preside;'. Hearing of certain proceedings
        before the Tribunal

''58C. (1) This section has effect notwithstanding anything contained in the
Administrative Appeals Tribunal Act 1975.

''(2) At the hearing of a proceeding referred to in sub-section 58B (1), the
Tribunal-

   (a)  shall hold in private the hearing of any part of the proceeding during
        which evidence or information is given, or a document is produced, to
        the Tribunal by-

        (i)    an agency or an officer of an agency;

        (ii)   a Minister or a member of the staff of a Minister; or

        (iii)  a member, an officer, or a member of the staff, of a body
               referred to in sub-section 7 (1) or the person referred to in
               that sub-section,

or during which a submission is made to the Tribunal by or on behalf of an
agency or Minister, being a submission in relation to the claim-

        (iv)   in the case of a document in respect of which there is in force
               a certificate under sub-section 33 (2) or 33A (2) or section 34
               or 35-that the document is an exempt document;

        (v)    in the case of a document in respect of which there is in force
               a certificate under section 36-that the disclosure of the
               document would be contrary to the public interest; or

        (vi)   in the case where a certificate is in force under sub-section
               33 (4) or 33A (4)-that information as to the existence or
               non-existence of a document as described in a request would, if
               contained in a document of an agency-

                (A)  in a case where the certificate was given under
                     sub-section 33 (4)-cause the disclosure under this Act of
                     that document of an agency to be contrary to the public
                     interest for a reason specified in sub-section 33 (1); or

                (B)  in a case where the certificate was given under
                     sub-section 33A (4)-cause that document of an agency to
                     be an exempt document under section 33A; and

   (b)  subject to sub-section (4), shall hold the hearing of any other part
        of the proceeding in public.

''(3) Where the hearing of any part of a proceeding is held in private in
accordance with sub-section (2), the Tribunal-

   (a)  may, by order, give directions as to the persons who may be present at
        that hearing; and

   (b)  shall give directions prohibiting the publication of-

        (i)    any evidence or information given to the Tribunal;

        (ii)   the contents of any documents lodged with, or received in
               evidence by, the Tribunal; and

        (iii)  any submission made to the Tribunal,

at that hearing.

''(4) Where, in relation to a proceeding referred to in sub-section 58B (1),
the Tribunal is satisfied that it is desirable to do so by reason of the
confidential nature of any evidence, information or matter or for any other
reason, the Tribunal may, by order-

   (a)  direct that the hearing of a part of the proceeding that, but for this
        sub-section, would be held in public shall take place in private and
        give directions as to the persons who may be present at that hearing;

   (b)  give directions prohibiting or restricting the publication of-

        (i)    the contents of any document lodged with the Tribunal in
               relation to the proceeding; or

        (ii)   any evidence or information given to the Tribunal, the contents
               of any document received in evidence by the Tribunal, or any
               submission made to the Tribunal, in relation to the proceeding
               otherwise than at a hearing held in private in accordance with
               sub-section (2); or

   (c)  give directions prohibiting or restricting the disclosure to some or
        all of the parties to the proceeding of evidence given before the
        Tribunal, or the contents of a document lodged with, or received in
        evidence by, the Tribunal, in relation to the proceeding.

''(5) A direction given by the Tribunal under paragraph (3) (b) or (4) (b),
does not prevent a person referred to in sub-paragraph (2) (a) (i), (ii) or
(iii) from disclosing, in the course of the performance of his duties, any
matter to any other person. Modification of section 42 of the
Administrative Appeals Tribunal Act 1975



''58D. In its application to a proceeding referred to in sub-section 58B (1)
of this Act, section 42 of the Administrative Appeals Tribunal Act 1975
applies as if sub-section (1) of that section were omitted and the following
sub-section substituted:

'(1) A question of law (including the question whether a particular question
is one of law) arising in a proceeding before the Tribunal constituted in
accordance with sub-section 58B (2) of the Freedom of Information Act 1982
by 3 presidential members shall-

   (a)  in a case where one only of those members is a Judge-be decided
        according to the opinion of that member; and

   (b)  in a case where 2 of those members are Judges-be decided according to
        the opinion of the majority.'.
Production to the Tribunal of documents in relation to which a certificate has
been issued

''58E. (1) In any proceedings before the Tribunal under this Act in relation
to a document in respect of which there is in force a certificate under
section 33, 33A, 34, 35 or 36, the Tribunal is entitled to require the
production of the document in accordance with this section and not otherwise.

''(2) Where, in considering a question referred to in sub-section 58 (4), (5)
or (5A) in relation to a document, the Tribunal is not satisfied, by evidence
on affidavit or otherwise, that there exist reasonable grounds for the claim
to which the question relates, the Tribunal may require the document to be
produced for inspection by the Tribunal as constituted for the purposes of the
proceeding.

''(3) After an inspection of a document under this section the Tribunal shall
return the document to the person by whom it was produced without permitting
any person who is not a member of the Tribunal as constituted for the purposes
of the proceeding, or a member of the staff of the Tribunal in the course of
the performance of his duties as a member of that staff, to have access to the
document or disclosing the contents of the document to any such person. Review
of certain decisions in respect of documents relating to the Government of a
State

''58F. (1) Where notice of a decision that a document is not an exempt
document under section 33A or under any other provision of this Act has been
given in accordance with sub-section 26A (2) to a State, the State may apply
to the Tribunal for a review of the decision that the document is not an
exempt document under section 33A.

''(2) Where an application is made in accordance with sub-section (1)-

   (a)  the provisions of this Part (other than sections 55 and 61) apply in
        like manner as they apply in relation to an application for review of
        a decision refusing to grant access to a document; and

   (b)  the agency or Minister concerned shall forthwith inform the person who
        made the request of the application.

''(3) Where-

   (a)  after consultation between the Commonwealth and a State in accordance
        with arrangements of the kind referred to in section 26A, a decision
        is made not to grant access to the document to which the consultation
        relates; and

   (b)  an application is made to the Tribunal for a review of the decision,
the agency or Minister concerned shall forthwith inform the State in
accordance with those arrangements of the application.''.