An Act to give to members of the public rights of access to
official documents of the Government of the Commonwealth and of its agencies
Part I—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Freedom
of Information Act 1982.
2
Commencement [see Note 1]
The several Parts of this Act shall come
into operation on such respective dates as are fixed by Proclamation.
3
Object
(1) The object of this Act is to extend as
far as possible the right of the Australian community to access to information
in the possession of the Government of the Commonwealth by:
(a) making available to the public
information about the operations of departments and public authorities and, in
particular, ensuring that rules and practices affecting members of the public
in their dealings with departments and public authorities are readily available
to persons affected by those rules and practices; and
(b) creating a general right of access
to information in documentary form in the possession of Ministers, departments
and public authorities, limited only by exceptions and exemptions necessary for
the protection of essential public interests and the private and business
affairs of persons in respect of whom information is collected and held by
departments and public authorities; and
(c) creating a right to bring about
the amendment of records containing personal information that is incomplete,
incorrect, out of date or misleading.
(2) It is the intention of the Parliament
that the provisions of this Act shall be interpreted so as to further the
object set out in subsection (1) and that any discretions conferred by
this Act shall be exercised as far as possible so as to facilitate and promote,
promptly and at the lowest reasonable cost, the disclosure of information.
4
Interpretation
(1) In this Act, unless the contrary
intention appears:
ACT enactment means an enactment as defined
by section 3 of the Australian Capital Territory (Self‑Government)
Act 1988.
agency means a Department, a prescribed
authority or an eligible case manager.
applicant means a person who has made a
request.
Cabinet notebook means a notebook or other
like record that contains notes of discussions or deliberations taking place in
a meeting of the Cabinet or of a committee of the Cabinet, being notes made in
the course of those discussions or deliberations by, or under the authority of,
the Secretary to the Cabinet.
Defence Imagery and Geospatial Organisation
means that part of the Department of Defence known as the Defence Imagery and
Geospatial Organisation.
Defence Intelligence Organisation means that
part of the Department of Defence known as the Defence Intelligence
Organisation.
Defence Signals Directorate means that part
of the Department of Defence known as the Defence Signals Directorate.
Department means a Department of the
Australian Public Service that corresponds to a Department of State of the
Commonwealth but does not include the branch of the Australian Public Service
comprising the transitional staff as defined by section 3 of the A.C.T.
Self‑Government (Consequential Provisions) Act 1988.
document includes:
(a) any of, or any part of any of, the
following things:
(i) any paper or other
material on which there is writing;
(ii) a map, plan, drawing
or photograph;
(iii) any paper or other
material on which there are marks, figures, symbols or perforations having a
meaning for persons qualified to interpret them;
(iv) any article or material
from which sounds, images or writings are capable of being reproduced with or
without the aid of any other article or device;
(v) any article on which
information has been stored or recorded, either mechanically or electronically;
(vi) any other record of
information; or
(b) any copy, reproduction or
duplicate of such a thing; or
(c) any
part of such a copy, reproduction or duplicate;
but does not include:
(d) library material maintained for
reference purposes; or
(e) Cabinet notebooks.
document of an agency or document of
the agency means a document in the possession of an agency, or in the
possession of the agency concerned, as the case requires, whether created in
the agency or received in the agency.
edited copy, in relation to a document, means
a copy of the document from which deletions have been made under section 22.
eligible case manager means an entity (within
the meaning of the Employment Services Act 1994):
(a) that is, or has at any time been,
a contracted case manager within the meaning of that Act; and
(b) that is not:
(i) a Department; or
(ii) a prescribed
authority.
enactment means, subject to section 4A:
(a) an Act;
(b) an Ordinance of the Australian
Capital Territory; or
(c) an instrument (including rules,
regulations or by‑laws) made under an Act or under such an Ordinance and
includes an enactment as amended by another enactment.
exempt document means:
(a) a document which, by virtue of a
provision of Part IV, is an exempt document;
(b) a document in respect of which, by
virtue of section 7, an agency is exempt from the operation of this Act;
or
(c) an official document of a Minister
that contains some matter that does not relate to the affairs of an agency or
of a Department of State.
exempt Internet‑content document means:
(a) a document containing information
(within the meaning of Schedule 5 to the Broadcasting Services Act 1992)
that:
(i) has been copied from
the Internet; and
(ii) was offensive Internet
content when it was accessible on the Internet; or
(b) a document that sets out how to
access, or that is likely to facilitate access to, offensive Internet content
(for example: by setting out the name of an Internet site, an IP address, a
URL, a password, or the name of a newsgroup).
exempt matter means matter the inclusion of
which in a document causes the document to be an exempt document.
offensive Internet content means Internet
content (within the meaning of Schedule 5 to the Broadcasting Services
Act 1992) that is:
(a) prohibited content (within the
meaning of that Schedule); or
(b) potential prohibited content
(within the meaning of that Schedule).
officer, in relation to an agency, includes a
member of the agency or a member of the staff of the agency.
official document of a Minister or
official document of the Minister means a document that is in the
possession of a Minister, or that is in the possession of the Minister
concerned, as the case requires, in his or her capacity as a Minister, being a
document that relates to the affairs of an agency or of a Department of State
and, for the purposes of this definition, a Minister shall be deemed to be in
possession of a document that has passed from his or her possession if he or
she is entitled to access to the document and the document is not a document of
an agency.
Ombudsman means the Commonwealth Ombudsman.
Ordinance, in relation to the Australian
Capital Territory, includes a law of a State that applies, or the provisions
of a law of a State that apply, in the Territory by virtue of an enactment
(other than a law that is, or provisions that are an ACT enactment).
personal information means information or an
opinion (including information forming part of a database), whether true or
not, and whether recorded in a material form or not, about an individual whose
identity is apparent, or can reasonably be ascertained, from the information or
opinion.
prescribed authority
means:
(a) a body corporate, or an
unincorporated body, established for a public purpose by, or in accordance with
the provisions of, an enactment or an Order‑in‑Council, other than:
(i) an incorporated
company or association;
(ii) a body that, under subsection (2),
is not to be taken to be a prescribed authority for the purposes of this Act;
(iii) the Australian Capital
Territory House of Assembly;
(iv) the Legislative
Assembly of the Northern Territory or the Executive Council of the Northern
Territory;
(v) the Legislative
Assembly of the Territory of Norfolk Island; or
(vi) a Royal Commission;
(b) any other body, whether
incorporated or unincorporated, declared by the regulations to be a prescribed
authority for the purposes of this Act, being:
(i) a body established by
the Governor‑General or by a Minister; or
(ii) an incorporated
company or association over which the Commonwealth is in a position to exercise
control;
(c) subject to subsection (3),
the person holding, or performing the duties of, an office established by an
enactment or an Order‑in‑Council; or
(d) the person holding, or performing
the duties of, an appointment declared by the regulations to be an appointment
the holder of which is a prescribed authority for the purposes of this Act,
being an appointment made by the Governor‑General, or by a Minister,
otherwise than under an enactment or an Order‑in‑Council.
principal officer
means:
(a) in
relation to a Department—the person holding, or performing the duties of, the
office of Secretary of the Department; or
(b) in relation to a prescribed
authority:
(i) if the regulations
declare an office to be the principal office in respect of the authority—the
person holding, or performing the duties of, that office; or
(ii) in any other case—the
person who constitutes that authority or, if the authority is constituted by 2
or more persons, the person who is entitled to preside at any meeting of the
authority at which he or she is present; or
(c) in relation to an eligible case
manager:
(i) if the eligible case
manager is an individual—the individual; or
(ii) in any other case—the
individual who has primary responsibility for the management of the eligible
case manager.
request means an application made under
subsection 15(1).
responsible Minister means:
(a) in relation to a Department—the
Minister administering the relevant Department of State; or
(b) in relation to a prescribed
authority referred to in paragraph (a) of the definition of prescribed
authority—the Minister administering the part of the enactment by
which, or in accordance with the provisions of which, the prescribed authority
is established; or
(c) in relation to a prescribed
authority referred to in paragraph (c) of that definition—the Minister
administering the part of the enactment by which the office is established; or
(d) in relation to any other
prescribed authority—the Minister declared by the regulations to be the
responsible Minister in respect of that authority; or
(e) in
relation to an eligible case manager—the Minister administering the Employment
Services Act 1994;
or another Minister acting for and on behalf of that
Minister.
State includes the Australian Capital
Territory and the Northern Territory.
Tribunal means the Administrative Appeals
Tribunal.
(2) An unincorporated body, being a board,
council, committee, sub‑committee or other body established by, or in
accordance with the provisions of, an enactment for the purpose of assisting,
or performing functions connected with, a prescribed authority shall not be
taken to be a prescribed authority for the purposes of this Act, but shall be
deemed to be comprised within that prescribed authority.
(3) A person shall not be taken to be a
prescribed authority:
(a) by virtue of his or her holding:
(i) an office of member of
the Legislative Assembly for the Australian Capital Territory;
(ii) an office of member of
the Legislative Assembly of the Northern Territory or of Administrator or of
Minister of the Northern Territory; or
(iii) an office of member of
the Legislative Assembly of the Territory of Norfolk Island or of Administrator
or Deputy Administrator of that Territory or an executive office created
pursuant to section 12 of the Norfolk Island Act 1979; or
(b) by virtue of his or her holding,
or performing the duties of:
(i) a prescribed office;
(ii) an office the duties
of which he or she performs as duties of his or her employment as an officer of
a Department or as an officer of or under a prescribed authority;
(iii) an office of member of
a body; or
(iv) an office established
by an enactment for the purposes of a prescribed authority.
(4) For the purposes of this Act, the
Department of Defence shall be deemed to include:
(a) the Defence Force;
(b) the Australian Army Cadets;
(c) the Australian Navy Cadets; and
(d) the Australian Air Force Cadets.
(5) Without
limiting the generality of the expression security of the Commonwealth,
that expression shall be taken to extend to:
(a) matters relating to the detection,
prevention or suppression of activities, whether within Australia or outside
Australia, subversive of, or hostile to, the interests of the Commonwealth or
of any country allied or associated with the Commonwealth; and
(b) the security of any communications
system or cryptographic system of the Commonwealth or of another country used
for:
(i) the defence of the
Commonwealth or of any country allied or associated with the Commonwealth; or
(ii) the conduct of the
international relations of the Commonwealth.
(6) Where an agency is abolished, then, for
the purposes of this Act:
(a) if the functions of the agency are
acquired by another agency—any request made to the first‑mentioned agency
shall be deemed to have been made to, and any decision made by the first‑mentioned
agency in respect of a request made to it shall be deemed to have been made by,
the other agency;
(b) if the functions of the agency are
acquired by more than one other agency—any request made to the first‑mentioned
agency shall be deemed to have been made to, and any decision made by the first‑mentioned
agency in respect of a request made to it shall be deemed to have been made by,
whichever of those other agencies has acquired the functions of the first‑mentioned
agency to which the document the subject of the request most closely relates;
and
(c) if the documents of the agency are
deposited with the Australian Archives—any request made to the agency shall be
deemed to have been made to, and any decision made by the agency in respect of
a request made by it shall be deemed to have been made by, the agency to the
functions of which the document the subject of the request most closely
relates.
(7) If the agency to which a request is so
deemed to have been made, or by which a decision upon a request is so deemed to
have been made, was not itself in existence at the time when the request or
decision was deemed so to have been made, then, for the purposes only of
dealing with that request or decision under this Act, that agency shall be
deemed to have been in existence at that time.
(8) For the purposes of this Act, where
regulations for the purposes of this subsection declare that an application fee
is applicable in respect of an application under subsection 15(1) or 54(1),
there shall be taken to be an application fee in respect of the application.
(9) For the purposes of the application of
the definition of responsible Minister in subsection (1) of
this Act (other than sections 8 and 93), the reference in that definition
to the Minister administering a Department is a reference to the Minister to
whom the Department is responsible in respect of the matter in respect of which
this Act is being applied.
4A
Certain legislation relating to Australian Capital Territory not to be
enactment
(1) ACT enactments are not enactments.
(2) The Australian Capital Territory
(Self‑Government) Act 1988 and the Canberra Water Supply
(Googong Dam) Act 1974 are not enactments.
(3) Part IV, sections 29 and 30,
subsection 63(2), section 66 and Division 5 of Part X of the Australian
Capital Territory Planning and Land Management Act 1988 are not
enactments.
(4) Where the whole of an Act or Ordinance is
not an enactment, an instrument made under it is not an enactment.
(5) Where part of an Act or Ordinance is not
an enactment, an instrument made under the Act or Ordinance, as the case may
be, is not an enactment unless made for the purposes of the other part of the
Act or Ordinance, as the case may be.
5 Act
to apply to courts in respect of administrative matters
For the purposes of this Act:
(a) a court shall be deemed to be a
prescribed authority;
(b) the holder of a judicial office or
other office pertaining to a court in his or her capacity as the holder of that
office, being an office established by the legislation establishing the court,
shall be deemed not to be a prescribed authority and shall not be included in a
Department; and
(c) a
registry or other office of a court, and the staff of such a registry or other
office when acting in a capacity as members of that staff, shall be taken as a
part of the court;
but this Act does not apply to any request for access to a
document of the court unless the document relates to matters of an
administrative nature.
6 Act
to apply to certain tribunals in respect of administrative matters
For the purposes of this Act:
(a) each tribunal, authority or body
specified in Schedule 1 is deemed to be a prescribed authority;
(b) the holder of an office pertaining
to a tribunal, authority or body specified in Schedule 1, being an office
established by the legislation establishing the tribunal, authority or body so
specified in his or her capacity as the holder of that office, is not to be
taken to be a prescribed authority or to be included in a Department; and
(c) a
registry or other office of or under the charge of a tribunal, authority or
body specified in Schedule 1, and the staff of such a registry or other
office when acting in a capacity as members of that staff, shall be taken as a
part of the tribunal, authority or body so specified as a prescribed authority;
but this Act does not apply to any request for access to a
document of a tribunal, authority or body so specified unless the document
relates to matters of an administrative nature.
6A
Official Secretary to the Governor‑General
(1) This Act does not apply to any request
for access to a document of the Official Secretary to the Governor‑General
unless the document relates to matters of an administrative nature.
(2) For the purposes of this Act, a document
in the possession of a person employed under section 13 of the Governor‑General
Act 1974 that is in his or her possession by reason of his or her
employment under that section shall be taken to be in the possession of the
Official Secretary to the Governor‑General.
6B
Eligible case managers
This Act only applies to a request for
access to a document of an eligible case manager if the document is in respect
of:
(a) the provision of case management
services (within the meaning of the Employment Services Act 1994) to a
person referred to the eligible case manager under Part 4.3 of that Act;
or
(b) the performance of a function
conferred on the eligible case manager under that Act.
7
Exemption of certain persons and bodies
(1) The bodies specified in Division 1
of Part I of Schedule 2, and a person holding and performing the
duties of an office specified in that Division, are to be deemed not to be
prescribed authorities for the purposes of this Act.
(1A) For the purposes of the definition of agency,
a part of the Department of Defence specified in Division 2 of Part I
of Schedule 2:
(a) is taken not to be included in the
Department of Defence (or in any other Department) for the purposes of this
Act; and
(b) to avoid doubt, is not an agency
in its own right for the purposes of this Act.
(2) The persons, bodies and Departments
specified in Part II of Schedule 2 are exempt from the operation of
this Act in relation to the documents referred to in that Schedule in relation
to them.
(2AA) A body corporate established by or under an
Act specified in Part III of Schedule 2 is exempt from the operation
of this Act in relation to documents in respect of the commercial activities of
the body corporate.
(2A) An agency is exempt from the operation of
this Act in relation to a document that has originated with, or has been
received from, the Australian Secret Intelligence Service, the Australian
Security Intelligence Organisation, the Inspector‑General of Intelligence
and Security or the Office of National Assessments, or the Defence Imagery and
Geospatial Organisation, the Defence Intelligence Organisation or the Defence
Signals Directorate of the Department of Defence.
(3) In subsection (2AA) and Part II
of Schedule 2, commercial activities means:
(a) activities carried on by an agency
on a commercial basis in competition with persons other than governments or
authorities of governments; or
(b) activities, carried on by an
agency, that may reasonably be expected in the foreseeable future to be carried
on by the agency on a commercial basis in competition with persons other than
governments or authorities of governments.
(4) In subsection (2AA) and Part II
of Schedule 2, a reference to documents in respect of particular
activities shall be read as a reference to documents received or brought into
existence in the course of, or for the purposes of, the carrying on of those
activities.
Part II—Publication of certain documents and information
8
Publication of information concerning functions and documents of agencies
(1) The responsible Minister of an agency
shall:
(a) cause to be published, as soon as
practicable after the commencement of this Part but not later than 12 months
after that commencement, in a form approved by the Minister administering this
Act:
(i) a statement setting
out particulars of the organization and functions of the agency, indicating, as
far as practicable, the decision‑making powers and other powers affecting
members of the public that are involved in those functions;
(ii) a statement setting
out particulars of any arrangements that exist for bodies or persons outside
the Commonwealth administration to participate, either through consultative
procedures, the making of representations or otherwise, in the formulation of
policy by the agency, or in the administration by the agency, of any enactment
or scheme;
(iii) a statement of the
categories of documents that are maintained in the possession of the agency,
being categories that comply with subsection (6);
(iv) a statement of
particulars of the facilities, if any, provided by the agency for enabling
members of the public to obtain physical access to the documents of the agency;
and
(v) a statement of any
information that needs to be available to the public concerning particular
procedures of the agency in relation to Part III, and particulars of the
officer or officers to whom, and the place or places at which, initial
inquiries concerning access to documents may be directed; and
(b) during the year commencing on 1 January
next following the publication, in respect of the agency, of the statement
under subparagraph (a)(i), (ii), (iii), (iv) or (v) that is the first
statement published under that subparagraph, and during each succeeding year,
cause to be published statements bringing up to date the information contained
in the previous statement or statements published under that subparagraph.
(2) In approving a form under subsection (1),
the Minister shall have regard, amongst other things, to the need to assist
members of the public to exercise effectively their rights under this Act.
(3) The information to be published in accordance
with this section shall be published by including it:
(a) in the annual report of the agency
to the responsible Minister of the agency relating to the activities,
operations, business or affairs of the agency; or
(b) if there is no such report—in the
annual report of the Department, or a Department, administered by the
responsible Minister of the agency relating to the activities, operations,
business or affairs of the Department.
(4) Nothing in this section requires the
publication of information that is of such a nature that its inclusion in a
document of an agency would cause that document to be an exempt document.
(5) Subsection (1) applies in relation
to an agency that comes into existence after the commencement of this Part as
if the references in that subsection to the commencement of this Part were
references to the day on which the agency comes into existence.
(6) The categories referred to in subparagraph (1)(a)(iii)
include, but are not limited to, the following categories:
(a) any documents referred to in
paragraph 12(1)(b);
(b) any documents referred to in
paragraph 12(1)(c);
(c) any other documents, if the
documents are customarily made available to the public:
(i) otherwise than under
this Act; and
(ii) free of charge upon request.
9
Certain documents to be available for inspection and purchase
(1) This section applies, in respect of an
agency, to documents that are provided by the agency for the use of, or are
used by, the agency or its officers in making decisions or recommendations,
under or for the purposes of an enactment or scheme administered by the agency,
with respect to rights, privileges or benefits, or to obligations, penalties or
other detriments, to which persons are or may be entitled or subject, being:
(a) manuals or other documents
containing interpretations, rules, guidelines, practices or precedents
including, but without limiting the generality of the foregoing, precedents in
the nature of letters of advice providing information to bodies or persons outside
the Commonwealth administration;
(b) documents containing particulars
of such a scheme, not being particulars contained in an enactment as published
apart from this Act;
(c) documents containing statements of
the manner, or intended manner, of administration or enforcement of such an
enactment or scheme; or
(d) documents
describing the procedures to be followed in investigating breaches or evasions
or possible breaches or evasions of such an enactment or of the law relating to
such a scheme;
but not including documents that are available to the
public as published otherwise than by an agency or as published by another
agency.
(2) The principal officer of an agency shall:
(a) cause copies of all documents to
which this section applies in respect of the agency that are in use from time
to time to be made available for inspection and for purchase by members of the
public;
(b) cause to be prepared by a day not
later than the relevant day in relation to the agency, and as soon as
practicable after preparation to be made available, for inspection and for
purchase by members of the public, at each Information Access Office, a
statement (which may take the form of an index) specifying the documents of
which copies are, at the time of preparation of the statement, available in
accordance with paragraph (a) and the place or places where copies may be
inspected and may be purchased; and
(c) cause to be prepared within 3
months, if practicable, and in any case not later than 12 months, after the
preparation of the last preceding statement prepared in accordance with paragraph (b)
or this paragraph, and as soon as practicable after preparation to be made
available, for inspection and for purchase by members of the public, at each
Information Access Office, a statement bringing up to date the information
contained in that last preceding statement.
(2A) For the purposes of subsection (2):
(a) the relevant day in relation to an
agency is:
(i) in the case of an
agency that was in existence before the commencement of the Freedom of
Information Laws Amendment Act 1986—the first day after the commencement of
that Act by which the agency, if the amendments made by that Act to subsection (2)
of this section had not been made, would have been required under that
subsection to publish a statement in the Gazette; and
(ii) in the case of an
agency that comes into existence on or after the commencement of the Freedom
of Information Laws Amendment Act 1986—the day that occurs 12 months after
the day on which the agency comes into existence; and
(b) Information Access Office
means a place that is an Information Access Office for the purposes of section 28.
(3) The principal officer is not required to
comply fully with paragraph (2)(a) before the expiration of 12 months
after the commencement of this Part, but shall, before that time, comply with
that paragraph so far as is practicable.
(4) This section does not require a document
of the kind referred to in subsection (1) containing exempt matter to be
made available in accordance with subsection (2), but, if such a document
is not so made available, the principal officer of the agency, or an officer of
the agency acting within the scope of authority exercisable by him or her in
accordance with arrangements approved by the responsible Minister or principal
officer of the agency, shall, if practicable, cause to be prepared a
corresponding document, altered only to the extent necessary to exclude the
exempt matter, and cause the document so prepared to be dealt with in
accordance with subsection (2).
(5) The Minister may, by writing under his or
her hand, extend, in respect of the Commissioner of Taxation, the time
specified in paragraph (2)(b) or subsection (3) where he or she is
satisfied, after consulting the Minister who is the responsible Minister in
relation to the Commissioner of Taxation, that it is reasonable to extend the
time by reason of special circumstances applicable to the Commissioner of
Taxation.
(6) Where the Minister is satisfied, after
consulting the Minister who is the responsible Minister in relation to the
Commissioner of Taxation, that the form or nature of the documents to which
this section applies in respect of the Commissioner of Taxation that are in
existence at the commencement of this Part, or of some of those documents, is
such that complete compliance with this section in respect of those documents
would impose on the Commissioner of Taxation such a workload as would
unreasonably divert his or her resources from his or her other operations, the
first‑mentioned Minister may, by writing under his or her hand, direct
that the application of this section in respect of the Commissioner of Taxation
is to be subject to such modifications as he or she specifies, being
modifications that, in his or her opinion, are reasonably required by reason of
the circumstances referred to in this subsection.
(7) The report of the Minister under section 93
in respect of a year shall include:
(a) particulars of any extensions of
time made, or directions given, under this section by the Minister during that
year; and
(b) a statement concerning compliance
by agencies with the requirements of this section during that year.
(8) Where a person makes a request to inspect
or to purchase a document of an agency concerning a particular enactment or
scheme, being a document of a kind to which this section applies, the principal
officer of the agency shall take all reasonable steps to ensure that the
attention of that person is drawn to any document of the agency concerning that
enactment or scheme that is relevant to the request and has become a document
to which this section applies since the last occasion on which a statement in
respect of documents of the agency was prepared and made available in
accordance with subsection (2).
(9) Subsection (3) applies in relation
to an agency that comes into existence after the commencement of this Part as
if the reference in that subsection to the commencement of this Part were a
reference to the day on which the agency comes into existence.
10 Unpublished
documents not to prejudice public
(1) If a document required to be made
available in accordance with section 9, being a document containing a
rule, guideline or practice relating to a function of an agency, was not made
available, or was not included in a statement made available at each
Information Access Office, as referred to in that section, before the time at
which a person did, or omitted to do, any act or thing relevant to the
performance of that function in relation to him or her (whether or not the time
allowed for publication of a statement in respect of the document had expired
before that time), that person, if he or she was not aware of that rule,
guideline or practice at that time, shall not be subjected to any prejudice by
reason only of the application of that rule, guideline or practice in relation
to the thing done or omitted to be done by him or her if he or she could
lawfully have avoided that prejudice had he or she been aware of that rule,
guideline or practice.
(2) The reference
in subsection (1) to the time at which a person did, or omitted to do, any
act or thing relevant to the performance in relation to him or her of a
function of an agency does not include a reference to a time earlier than:
(a) the expiration of the period of 12
months referred to in paragraph 9(2)(b) or, if the agency is the Commissioner
of Taxation and that period has been extended in respect of the agency under
subsection 9(5), the expiration of the period as extended; or
(b) the
expiration of the period of 12 months after the day on which the agency came
into existence;
whichever is the later.
(3) In subsection (1):
Information Access Office means a place that
is an Information Access Office for the purposes of section 28.
Part III—Access to documents
11
Right of access
(1) Subject to this Act, every person has a
legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other
than an exempt document; or
(b) an official document of a
Minister, other than an exempt document.
(2) Subject to this Act, a person’s right of
access is not affected by:
(a) any reasons the person gives for
seeking access; or
(b) the agency’s or Minister’s belief
as to what are his or her reasons for seeking access.
12
Part not to apply to certain documents
(1) A person is not entitled to obtain access
under this Part to:
(a) a document, or a copy of a
document, which is, under the Archives Act 1983, within the open access
period within the meaning of that Act unless the document contains personal
information (including personal information about a deceased person); or
(b) a document that is open to public
access, as part of a public register or otherwise, in accordance with another
enactment, where that access is subject to a fee or other charge; or
(ba) a document that is open to public
access, as part of a land title register, in accordance with a law of a State
or Territory where that access is subject to a fee or other charge; or
(c) a document that is available for
purchase by the public in accordance with arrangements made by an agency.
(2) A person
is not entitled to obtain access under this Part to a document or a part of a
document that became a document of an agency or an official document of a
Minister more than 5 years before the date of commencement of this part unless:
(a) the document or that part of the
document contains information that is:
(i) personal information
about that person; or
(ii) information relating
to that person’s business, commercial or financial affairs; or
(b) the document or that part of the
document is a document or a part of a document access to which is reasonably
necessary to enable a proper understanding of a document of an agency or an
official document of a Minister to which that person has lawfully had access.
(3) Regulations may be made for the
modification of subsection (2) so as to enable a person to obtain access
under this Part to documents to which, but for the making of those regulations,
he or she would not be entitled to access under this part by reason of that
subsection.
(4) References in subsection (3) to subsection (2)
shall be construed as including references to subsection (2) as previously
modified in pursuance of regulations made under subsection (3).
13
Documents in certain institutions
(1) A document shall not be deemed to be a
document of an agency for the purposes of this Act by reason of its being:
(a) in the memorial collection within
the meaning of the Australian War Memorial Act 1980;
(b) in the collection of library
material maintained by the National Library of Australia;
(c) material included in the
historical material in the possession of the Museum of Australia; or
(d) in
the custody of the Australian Archives (otherwise than as a document relating
to the administration of the Australian Archives);
if the document was placed in that collection, or in that
custody, by or on behalf of a person (including a Minister or former Minister)
other than an agency.
(2) For the purposes of this Act, a document
that has been placed in the custody of the Australian Archives, or in a
collection referred to in subsection (1), by an agency shall be deemed to
be in the possession of that agency or, if that agency no longer exists, the
agency to the functions of which the document is most closely related.
(3) Notwithstanding subsections (1) and
(2), records of a Royal Commission that are in the custody of the Australian
Archives shall, for the purposes of this Act, be deemed to be documents of an
agency and to be in the possession of the Department administered by the
Minister administering the Royal Commissions Act 1902.
(4) Nothing in this Act affects the provision
of access to documents by the Australian Archives in accordance with the Archives
Act 1983.
14
Access to documents apart from Act
Nothing in this Act is intended to
prevent or discourage Ministers and agencies from publishing or giving access
to documents (including exempt documents), otherwise than as required by this
Act, where they can properly do so or are required by law to do so.
15
Requests for access
(1) Subject to section 15A, a person who
wishes to obtain access to a document of an agency or an official document of a
Minister may request access to the document.
(2) The request must:
(a) be in writing; and
(b) provide such information
concerning the document as is reasonably necessary to enable a responsible
officer of the agency, or the Minister, to identify it; and
(c) specify an address in Australia at
which notices under this Act may be sent to the applicant; and
(d) be
sent by post to the agency or Minister, or delivered to an officer of the
agency or a member of the staff of the Minister, at the address of any central
or regional office of the agency or Minister specified in a current telephone
directory; and
(e) be accompanied by the fee payable
under the regulations in respect of the request.
(3) Where a person:
(a) wishes to make a request to an
agency; or
(b) has
made to an agency a request that does not comply with this section;
it is the duty of the agency to take reasonable steps to
assist the person to make the request in a manner that complies with this
section.
(4) Where a person has directed to an agency
a request that should have been directed to another agency or to a Minister, it
is the duty of the first‑mentioned agency to take reasonable steps to
assist the person to direct the request to the appropriate agency or Minister.
(5) On receiving a request, the agency or
Minister must:
(a) as soon as practicable but in any
case not later than 14 days after the day on which the request is received by
or on behalf of the agency or Minister, take all reasonable steps to enable the
applicant to be notified that the request has been received; and
(b) as soon as practicable but in any
case not later than the end of the period of 30 days after the day on which the
request is received by or on behalf of the agency or Minister, take all
reasonable steps to enable the applicant to be notified of a decision on the
request (including a decision under section 21 to defer the provision of
access to a document).
(6) Where, in relation to a request, the
agency or Minister determines in writing that the requirements of section 26A,
27 or 27A make it appropriate to extend the period referred to in paragraph (5)(b):
(a) the period is to be taken to be
extended by a further period of 30 days; and
(b) the agency or Minister must, as
soon as practicable, inform the applicant that the period has been so extended.
15A
Request for access to personnel records
(1) In this section:
personnel records, in relation to an employee
or former employee of an agency, means those documents containing personal
information about him or her that are, or have been, kept by the agency for
personnel management purposes.
(2) Where:
(a) there are established procedures
in an agency (apart from those provided for by this Act) in accordance with
which a request may be made by an employee of the agency for access to his or
her personnel records; and
(b) a
person who is or was an employee of the agency wishes to obtain access to his
or her personnel records;
the person must not apply under section 15 for access
to such records unless the person:
(c) has made a request for access to
the records in accordance with the procedures referred to in paragraph (a);
and
(d) either:
(i) is not satisfied with
the outcome of the request; or
(ii) has not been notified
of the outcome within 30 days after the request was made.
16
Transfer of requests
(1) Where a
request is made to an agency for access to a document and:
(a) the document is not in the
possession of that agency but is, to the knowledge of that agency, in the
possession of another agency; or
(b) the
subject‑matter of the document is more closely connected with the
functions of another agency than with those of the agency to which the request
is made;
the agency to which the request is made may, with the
agreement of the other agency, transfer the request to the other agency.
(2) Where a request is made to an agency for
access to a document that:
(a) originated with, or has been
received from, a body which, or person who, is specified in Part I of
Schedule 2; and
(b) is
more closely connected with the functions of that body or person than with
those of the agency to which the request is made;
the request shall be transferred:
(c) to the Department corresponding to
the Department of State administered by the Minister who administers the
enactment by or under which the body or person is established, continued in
existence or appointed; or
(d) if the request relates to a
document that originated with, or has been received from, a part of the
Department of Defence specified in Division 2 of Part I of Schedule 2—to
that Department.
(3) Where a request is made to an agency for
access to a document that:
(a) originated in, or has been
received from, another agency, being an agency specified in Part II of
Schedule 2 or an agency that is a body corporate established by or under
an Act specified in Part III of Schedule 2; and
(b) is
more closely connected with the functions of the other agency in relation to
documents in respect of which the other agency is exempt from the operation of
this Act than with the functions of the agency to which the request is made;
the agency to which the request is made shall transfer the
request to the other agency.
(3A) Where:
(a) a request is made to an agency for
access to more than one document; and
(b) one
or more of those documents is a document to which subsection (1), (2) or
(3) applies;
this section applies to each of those documents as if
separate requests for access had been made to the agency in respect of each of
those documents.
(4) Where a request is transferred to an
agency in accordance with this section, the agency making the transfer shall
inform the person making the request accordingly and, if it is necessary to do
so in order to enable the other agency to deal with the request, send the
document to the other agency.
(5) Where a request is transferred to an
agency in accordance with this section, the request is to be taken to be a
request:
(a) made to the agency for access to
the document that is the subject of the transfer; and
(b) received by the agency at the time
at which it was first received by an agency.
(6) In this section, agency
includes a Minister.
17
Requests involving use of computers etc.
(1) Where:
(a) a request (including a request of
the kind described in subsection 24(1)) is made in accordance with the
requirements of subsection 15(2) to an agency;
(b) it appears from the request that
the desire of the applicant is for information that is not available in
discrete form in written documents of the agency; and
(ba) it does not appear from the
request that the applicant wishes to be provided with a computer tape or
computer disk on which the information is recorded; and
(c) the agency could produce a written
document containing the information in discrete form by:
(i) the use of a computer
or other equipment that is ordinarily available to the agency for retrieving or
collating stored information; or
(ii) the
making of a transcript from a sound recording held in the agency;
the agency shall deal with the request as if it were a
request for access to a written document so produced and containing that
information and, for that purpose, this Act applies as if the agency had such a
document in its possession.
(2) An agency is not required to comply with subsection (1)
if compliance would substantially and unreasonably divert the resources of the
agency from its other operations.
18
Access to documents to be given on request
(1) Subject to this Act, where:
(a) a request is made in accordance
with the requirements of subsection 15(2) by a person to an agency or Minister
for access to a document of the agency or an official document of the Minister;
and
(b) any
charge that, under the regulations, is required to be paid before access is
granted has been paid;
the person shall be given access to the document in
accordance with this Act.
(2) An agency or Minister is not required by
this Act to give access to a document at a time when the document is an exempt
document.
20
Forms of access
(1) Access to a document may be given to a
person in one or more of the following forms:
(a) a reasonable opportunity to
inspect the document;
(b) provision by the agency or
Minister of a copy of the document;
(c) in
the case of a document that is an article or thing from which sounds or visual
images are capable of being reproduced, the making of arrangements for the
person to hear or view those sounds or visual images;
(d) in the case of a document by which
words are recorded in a manner in which they are capable of being reproduced in
the form of sound or in which words are contained in the form of shorthand
writing or in codified form, provision by the agency or Minister of a written
transcript of the words recorded or contained in the document.
(2) Subject to subsection (3) and to
section 22, where the applicant has requested access in a particular form,
access shall be given in that form.
(3) If the giving of access in the form
requested by the applicant:
(a) would interfere unreasonably with
the operations of the agency, or the performance by the Minister of his or her
functions, as the case may be;
(b) would be detrimental to the
preservation of the document or, having regard to the physical nature of the
document, would not be appropriate; or
(c) would,
but for this Act, involve an infringement of copyright (other than copyright
owned by the Commonwealth, an agency or a State) subsisting in matter contained
in the document, being matter that does not relate to the affairs of an agency
or of a Department of State;
access in that form may be refused and access given in
another form.
(4) Subject to subsection 17(1), where a
person requests access to a document in a particular form and, for a reason
specified in subsection (3), access in that form is refused but access is
given in another form, the applicant shall not be required to pay a charge in respect
of the provision of access to the document that is greater than the charge that
he or she would have been required to pay if access had been given in the form
requested.
21
Deferment of access
(1) An agency
which, or a Minister who, receives a request may defer the provision of access
to the document concerned:
(a) if the publication of the document
concerned is required by law—until the expiration of the period within which
the document is required to be published;
(b) if the document concerned has been
prepared for presentation to Parliament or for the purpose of being made
available to a particular person or body or with the intention that it should
be so made available—until the expiration of a reasonable period after its
preparation for it to be so presented or made available;
(c) if
the premature release of the document concerned would be contrary to the public
interest—until the occurrence of any event after which or the expiration of any
period of time beyond which the release of the document would not be contrary
to the public interest; or
(d) if a Minister considers that the
document concerned is of such general public interest that the Parliament
should be informed of the contents of the document before the document is
otherwise made public—until the expiration of 5 sitting days of either House of
the Parliament.
(2) Where the provision of access to a
document is deferred in accordance with subsection (1), the agency or
Minister shall, in informing the applicant of the reasons for the decision,
indicate, as far as practicable, the period for which the deferment will
operate.
(3) Subsection 55(1) does not apply in
relation to a deferment under paragraph (1)(d) of this section.
22
Deletion of exempt matter or irrelevant material
(1) Where:
(a) an agency or Minister decides:
(i) not to grant a request
for access to a document on the ground that it is an exempt document; or
(ii) that to grant a
request for access to a document would disclose information that would
reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or
Minister to make a copy of the document with such deletions that the copy:
(i) would not be an exempt
document; and
(ii) would not disclose
such information; and
(c) it is reasonably practicable for
the agency or Minister, having regard to the nature and extent of the work
involved in deciding on and making those deletions and the resources available
for that work, to make such a copy;
the agency or Minister
shall, unless it is apparent from the request or as a result of consultation by
the agency or Minister with the applicant, that the applicant would not wish to
have access to such a copy, make, and grant access to, such a copy.
(2) Where access is granted to a copy of a
document in accordance with subsection (1):
(a) the applicant must be informed:
(i) that it is such a
copy; and
(ii) of the ground for the
deletions; and
(iii) if any matter deleted
is exempt matter because of a provision of this Act—that the matter deleted is
exempt matter because of that provision; and
(b) section 26 does not apply to
the decision that the applicant is not entitled to access to the whole of the
document unless the applicant requests the agency or Minister to furnish to him
or her a notice in writing in accordance with that section.
23
Decisions to be made by authorised persons
(1) Subject to subsection (2), a
decision in respect of a request made to an agency may be made, on behalf of
the agency, by the responsible Minister or the principal officer of the agency
or, subject to the regulations, by an officer of the agency acting within the
scope of authority exercisable by him or her in accordance with arrangements
approved by the responsible Minister or the principal officer of the agency.
(2) A decision in respect of a request made
to a court, or made to a tribunal, authority or body that is specified in
Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or,
subject to the regulations, by an officer of that court, tribunal, authority or
body acting within the scope of authority exercisable by him or her in
accordance with arrangements approved by the principal officer of that court,
tribunal, authority or body.
24
Requests may be refused in certain cases
(1) The agency or Minister dealing with a
request may refuse to grant access to documents in accordance with the request,
without having caused the processing of the request to have been undertaken, if
the agency or Minister is satisfied that the work involved in processing the
request:
(a) in the case of an agency—would
substantially and unreasonably divert the resources of the agency from its
other operations; or
(b) in the case of a Minister—would
substantially and unreasonably interfere with the performance of the Minister’s
functions.
(2) Subject to subsection (3) but
without limiting the matters to which the agency or Minister may have regard in
deciding whether to refuse under subsection (1) to grant access to the
documents to which the request relates, the agency or Minister is to have
regard to the resources that would have to be used:
(a) in identifying, locating or
collating the documents within the filing system of the agency, or the office
of the Minister; or
(b) in deciding whether to grant,
refuse or defer access to documents to which the request relates, or to grant
access to edited copies of such documents, including resources that would have
to be used:
(i) in examining the documents;
or
(ii) in consulting with any
person or body in relation to the request; or
(c) in making a copy, or an edited
copy, of the documents; or
(d) in notifying any interim or final
decision on the request.
(3) The agency or Minister is not to have regard
to any maximum amount, specified in regulations, payable as a charge for
processing a request of that kind.
(4) In deciding whether to refuse, under subsection (1),
to grant access to documents, an agency or Minister must not have regard to:
(a) any reasons that the person who
requests access gives for requesting access; or
(b) the agency’s or Minister’s belief
as to what are his or her reasons for requesting access.
(5) An agency or Minister may refuse to grant
access to the documents in accordance with the request without having
identified any or all of the documents to which the request relates and without
specifying, in respect of each document, the provision or provisions of this
Act under which that document is claimed to be an exempt document if:
(a) it is apparent from the nature of
the documents as described in the request that all of the documents to which
the request is expressed to relate are exempt documents; and
(b) either:
(i) it is apparent from
the nature of the documents as so described that no obligation would arise
under section 22 in relation to any of those documents to grant access to
an edited copy of the document; or
(ii) it is apparent, from
the request or as a result of consultation by the agency or Minister with the person
making the request, that the person would not wish to have access to an edited
copy of the document.
(6) An agency or Minister must not refuse to
grant access to a document:
(a) on the ground that the request for
the document does not comply with paragraph 15(2)(b); or
(b) under
subsection (1);
unless the agency or Minister has:
(c) given
the applicant a written notice:
(i) stating an intention
to refuse access; and
(ii) identifying an officer
of the agency or a member of staff of the Minister with whom the applicant may
consult with a view to making the request in a form that would remove the
ground for refusal; and
(d) given the applicant a reasonable
opportunity so to consult; and
(e) as far as is reasonably
practicable, provided the applicant with any information that would assist the
making of the request in such a form.
(7) For the purposes of section 15, the
period commencing on the day an applicant is given a notice under paragraph (6)(c)
and ending on the day the applicant confirms or alters the request following
the consultation referred to in subsection (6) is to be disregarded in the
computation of the 30 day period referred to in section 15.
24A
Requests may be refused if documents cannot be found or do not exist
An agency or Minister may refuse a
request for access to a document if:
(a) all reasonable steps have been
taken to find the document; and
(b) the agency or Minister is
satisfied that the document:
(i) is in the agency’s or
Minister’s possession but cannot be found; or
(ii) does not exist.
25
Information as to existence of certain documents
(1) Nothing in this Act shall be taken to
require an agency or Minister to give information as to the existence or non‑existence
of a document where information as to the existence or non‑existence of
that document, if included in a document of an agency, would cause the last‑mentioned
document to be an exempt document by virtue of section 33 or 33A or
subsection 37(1).
(2) Where a request relates to a document
that is, or if it existed would be, of a kind referred to in subsection (1),
the agency or Minister dealing with the request may give notice in writing to
the applicant that the agency or the Minister, as the case may be, neither
confirms nor denies the existence, as a document of the agency or an official
document of the Minister, of such a document but that, assuming the existence
of such a document, it would be an exempt document under section 33 or 33A
or subsection 37(1) and, where such a notice is given:
(a) section 26 applies as if the
decision to give such a notice were a decision referred to in that section; and
(b) the decision shall, for the
purposes of Part VI, be deemed to be a decision refusing to grant access
to the document in accordance with the request for the reason that the document
would, if it existed, be an exempt document under section 33 or 33A or
subsection 37(1), as the case may be.
26
Reasons and other particulars of decisions to be given
(1) Where, in relation to a request, a
decision is made relating to a refusal to grant access to a document in
accordance with the request or deferring provision of access to a document, the
decision‑maker shall cause the applicant to be given notice in writing of
the decision, and the notice shall:
(a) state the findings on any material
questions of fact, referring to the material on which those findings were
based, and state the reasons for the decision;
(b) where the decision relates to a
document of an agency, state the name and designation of the person giving the
decision; and
(c) give to the applicant appropriate
information concerning:
(i) his or her rights with
respect to review of the decision;
(ii) his or her rights to
make a complaint to the Ombudsman in relation to the decision; and
(iii) the
procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii);
including (where applicable)
particulars of the manner in which an application for review under section 54 may
be made.
(1A) Section 13 of the Administrative
Decisions (Judicial Review) Act 1977 does not apply to a decision referred
to in subsection (1).
(2) A notice under this section is not
required to contain any 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.
26A
Procedure on request in respect of documents likely to affect Commonwealth‑State
relations
(1) Where arrangements have been entered into
between the Commonwealth and a State with regard to consultation under this
section, and it appears that:
(a) a document that is the subject of
a request originated with, or was received from, or contains information that
originated with, or was received from, the State or an authority of the State;
and
(b) the
State may reasonably wish to contend that the document is an exempt document
under section 33A;
a decision to grant access to the document or an edited
copy of the document shall not be made by the agency or Minister concerned
unless consultation has taken place between the Commonwealth and the State in
accordance with those arrangements.
(2) Where, after consultation between the
Commonwealth and a State in pursuance of subsection (1) has taken place in
relation to a document or an edited copy of the document, a decision is made
that the document or edited copy is not an exempt document under section 33A
or under any other provision of this Act:
(a) the agency or Minister making the
decision shall, in accordance with the arrangements, cause notice in writing of
the decision to be given to the State as well as to the person who made the
request; and
(b) access shall not be given to the
document or edited copy or, in the case of a document or edited copy that
contains information that originated with or was received from the State or an
authority of the State, to the document or edited copy so far as it contains
that information, unless:
(i) the time for an
application to the Tribunal by the State in accordance with section 58F
for review of the decision that the document or edited copy is not an exempt
document under section 33A has expired and such an application (other than
an application that has subsequently been withdrawn) has not been made; or
(ia) such an application has
been made but the Tribunal has dismissed the application under section 42A
of the Administrative Appeals Tribunal Act 1975; or
(ii) such an application
has been made and the Tribunal has confirmed the decision that the document or
edited copy is not an exempt document under that section.
(3) Nothing in paragraph (2)(b) prevents
access being given to a document of a kind mentioned in that paragraph if a
further request has been made for access to the document and there is no
failure to comply with this section in dealing with the further request.
27
Procedure on request in respect of documents relating to business affairs etc.
(1) Where a request is received by an agency
or Minister in respect of a document containing information concerning:
(a) a person’s business or
professional affairs; or
(b) the
business, commercial or financial affairs of an organisation or undertaking;
a decision to grant access under this Act to the document
or an edited copy of the document, so far as it contains that information, must
not be made unless, where it is reasonably practicable to do so having regard
to all the circumstances (including the application of subsections 15(5) and
(6)):
(c) the agency or Minister has given
to the person or organisation or the proprietor of the undertaking a reasonable
opportunity of making submissions in support of a contention that the document
or edited copy is an exempt document under section 43; and
(d) the person making the decision has
had regard to any submissions so made.
(2) Where,
after any submissions have been made in accordance with subsection (1), a
decision is made that the document or edited copy, so far as it contains the
information referred to in subsection (1), is not an exempt document under
section 43:
(a) the agency or Minister shall cause
notice in writing of the decision to be given to the person who made the
submissions, as well as to the person who made the request; and
(b) access shall not be given to the
document or edited copy, so far as it contains the information referred to in subsection (1),
unless:
(i) the time for an
application to the Tribunal by that person in accordance with section 59
has expired and such an application (other than an application that has
subsequently been withdrawn) has not been made; or
(ia) such an application has
been made but the Tribunal has dismissed the application under section 42A
of the Administrative Appeals Tribunal Act 1975; or
(ii) such an application
has been made and the Tribunal has confirmed the decision.
(3) Nothing in paragraph (2)(b) prevents
access being given to a document of a kind referred to in that paragraph if a
further request has been made for access to the document and there is no
failure to comply with this section in dealing with the further request.
27A
Procedure on request in respect of documents containing personal information
(1AA) This section applies if:
(a) a request is received by an agency
or Minister in respect of a document containing personal information about a
person (including a person who has died); and
(b) it appears to:
(i) the officer or
Minister dealing with the request; or
(ii) a
person (the reviewer) reviewing under section 54 a decision
refusing the request;
that the person referred to in paragraph (a)
or, if that person has died, the legal personal representative of that person,
might reasonably wish to contend that the document, so far as it contains that
information, is an exempt document under section 41.
(1) A decision to grant access under this Act
to the document or an edited copy of the document, so far as it contains that
information, must not be made unless, where it is reasonably practicable to do
so having regard to all the circumstances (including the application of
subsections 15(5) and (6)):
(a) the agency or Minister has given
to the person or the legal personal representative of the person, as the case
may be, a reasonable opportunity of making submissions in support of a
contention that the document or edited copy, so far as it contains that
information, is an exempt document under section 41; and
(b) the person making the decision has
had regard to any submissions so made.
(1A) In determining, for the purposes of subsection (1AA),
whether a person might reasonably wish to contend that a document, so far as it
contains personal information, is an exempt document under section 41, the
officer, Minister or reviewer, as the case requires, must have regard to the
following matters:
(a) the extent to which the personal
information is well known;
(b) whether the person to whom the
personal information relates is known to be associated with the matters dealt
with in the document;
(c) the availability of the personal
information from publicly accessible sources;
(d) such
other matters as the officer, Minister or reviewer, as the case requires,
considers relevant.
(2) Where, after any submissions have been
made in accordance with subsection (1), a decision is made that the
document or edited copy, so far as it contains the information referred to in paragraph (1)(a),
is not an exempt document under section 41:
(a) the agency or Minister shall cause
notice in writing of the decision to be given to the person who made the
submissions, as well as to the person who made the request; and
(b) access shall not be given to the
document or edited copy, so far as it contains the information referred to in paragraph (1)(a),
unless:
(i) the time for an
application to the Tribunal in accordance with section 59A by the person
who made the submissions has expired and such an application (other than an
application that has subsequently been withdrawn) has not been made; or
(ia) such an application has
been made but the Tribunal has dismissed the application under section 42A
of the Administrative Appeals Tribunal Act 1975; or
(ii) such an application
has been made and the Tribunal has confirmed the decision.
(3) Nothing in paragraph (2)(b) prevents
access being given to a document of a kind referred to in that paragraph if a
further request has been made for access to the document and there is no
failure to comply with this section in dealing with the further request.
28
Information Access Offices
(1) The Minister administering this Act shall
cause to be published, as soon as practicable after the date of commencement of
this Part, but not later than 12 months after that date, a statement setting
out the addresses of such offices of the Government of the Commonwealth,
throughout Australia, as are to be Information Access Offices for the purposes
of this section.
(2) A person who is entitled to obtain access
to a document of an agency or to an official document of a Minister shall have
that access provided, if the person so requests, at the Information Access
Office having appropriate facilities to provide access in the form requested
that is closest to his or her normal place of residence.
(3) Nothing in this section shall be taken to
prevent an agency to which, or a Minister to whom, a request has been made for
access to a document in a particular form from giving access to that document,
in accordance with subsection 20(3), in a form other than the form requested.
(4) A person
who is provided with access to a document at an Information Access Office shall
not, by reason of the fact that the provision of access at that office has
necessitated the incurring of costs by an agency or a Minister that would not
have been incurred had access been provided at another place, be required to
pay any charge additional to the charge that he or she would have been required
to pay had he or she been provided with access at that other place.
29 Charges
(1) Where, under the regulations, an agency
or Minister decides that an applicant is liable to pay a charge (not being an
application fee) in respect of a request for access to a document, or the
provision of access to a document, the agency or Minister must give to the
applicant a written notice stating:
(a) that the applicant is liable to
pay a charge; and
(b) the agency’s or Minister’s
preliminary assessment of the amount of the charge, and the basis on which the
assessment is made; and
(c) that the applicant may contend
that the charge has been wrongly assessed, or should be reduced or not imposed;
and
(d) the matters that the agency or
Minister must take into account under subsection (5) in deciding whether
or not to reduce, or not impose, the charge; and
(e) the
amount of any deposit that the agency or Minister has determined, under the
regulations, that the applicant will be required to pay if the charge is
imposed; and
(f) that the applicant must, within
the period of 30 days, or such further period as the agency or Minister allows,
after the notice was given, notify the agency or Minister in writing:
(i) of the applicant’s
agreement to pay the charge; or
(ii) if the applicant
contends that the charge has been wrongly assessed, or should be reduced or not
imposed, or both—that the applicant so contends, giving the applicant’s reasons
for so contending; or
(iii) that the applicant
withdraws the request for access to the document concerned; and
(g) that if the applicant fails to
give the agency or Minister such a notice within that period or further period,
the request for access to the document will be taken to have been withdrawn.
(2) If the applicant fails to notify the
agency or Minister in a manner mentioned in paragraph (1)(f) within the
period or further period mentioned in that paragraph, the applicant is to be
taken to have withdrawn the request for access to the document concerned.
(3) An agency or Minister must not impose a
charge in respect of a request for access to a document, or the provision of
access to a document, until:
(a) the applicant has notified the
agency or Minister in a manner mentioned in paragraph (1)(f); or
(b) the end of the period or further
period mentioned in that paragraph.
(4) Where the applicant has notified the
agency or Minister, in a manner mentioned in subparagraph (1)(f)(ii), that
the applicant contends that the charge should be reduced or not imposed, the
agency or Minister may decide that the charge is to be reduced or not to be
imposed.
(5) Without
limiting the matters the agency or Minister may take into account in
determining whether or not to reduce or not to impose the charge, the agency or
Minister must take into account:
(a) whether the payment of the charge,
or part of it, would cause financial hardship to the applicant, or to a person
on whose behalf the application was made; and
(b) whether the giving of access to
the document in question is in the general public interest or in the interest
of a substantial section of the public.
(6) If the applicant has notified the agency
or Minister in the manner mentioned in subparagraph (1)(f)(ii), the agency
or Minister must take all reasonable steps to enable the applicant to be
notified of the decision on the amount of charge payable as soon as practicable
but in any case no later than 30 days after the day on which the applicant so
notified the agency or Minister.
(7) If:
(a) that period of 30 days has elapsed
since the day on which the agency or Minister was so notified; and
(b) the
applicant has not received notice of a decision on the amount of charge
payable;
the principal officer of the agency, or the Minister, as
the case requires, is, for all purposes of this Act, taken to have made, on the
last day of the period, a decision to the effect that the amount of charge
payable is the amount equal to the agency’s or Minister’s preliminary
assessment of the amount of the charge mentioned in paragraph (1)(b).
(8) If:
(a) the applicant makes a contention
about a charge as mentioned in subsection (4); and
(b) the
agency or Minister makes a decision to reject the contention, in whole or in
part;
the agency or Minister, as the case requires, must give
the applicant written notice of the decision and of the reasons for the
decision.
Note: Section 25D of the Acts Interpretation
Act 1901 sets out rules about the contents of a statement of reasons.
(9) A notice under subsection (8) must
also state the name and designation of the person making the decision and give
the applicant appropriate information about:
(a) his or her rights with respect to
review of the decision; and
(b) his or her rights to make a
complaint to the Ombudsman in relation to the decision; and
(c) the
procedure for the exercise of those rights;
including (where applicable) particulars of the manner in
which an application for review under section 54 may be made.
(10) Section 13 of the Administrative
Decisions (Judicial Review) Act 1977 does not apply to a decision referred
to in subsection (8).
(11) A notice under subsection (8) is not
required to contain any 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.
30A
Remission of application fees
(1) Where:
(a) there is, in respect of an
application to an agency or Minister under subsection 15(1) requesting access
to a document or under subsection 54(1) requesting a review of a decision
relating to a document, an application fee (whether or not the fee has been
paid); and
(b) the agency or Minister considers
that the fee or a part of the fee should be remitted for any reason, including
either of the following reasons:
(i) the payment of the fee
or of the part of the fee would cause or caused financial hardship to the
applicant or a person on whose behalf the application was made;
(iii) the
giving of access is in the general public interest or in the interest of a
substantial section of the public;
the agency or Minister may remit the fee or the part of
the fee.
(1A) The applicant may make a written request
for the application fee to be wholly or partly remitted under subsection (1).
The agency or Minister must take all reasonable steps to enable the applicant
to be notified of the decision on the request as soon as practicable, but in
any case no later than 30 days after the day on which the request was made.
(1B) If:
(a) that period of 30 days has ended;
and
(b) the
applicant has not received notice of a decision on the request;
the agency or the Minister, as the case requires, is
taken, for all purposes of this Act, to have made, on the last day of the
period, a decision to the effect that no part of the application fee is to be
remitted.
(2) Where the whole or a part of an
application fee is remitted under subsection (1), then, to the extent of
the remission, there shall not, for the purposes of subsection 15(2) or 54(1),
as the case may be, be taken to be an application fee in respect of the
application.
(3) If:
(a) a person makes a written request
for an application fee to be remitted, in whole or in part; and
(b) the
agency or Minister makes a decision to refuse the request, in whole or in part;
the agency or Minister, as the case requires, must give
the applicant written notice of the reasons for the decision.
Note: Section 25D of the Acts Interpretation
Act 1901 sets out rules about the contents of a statement of reasons.
(4) A notice under subsection (3) must
also state the name and designation of the person making the decision and give
the applicant appropriate information about:
(a) his or her rights with respect to
review of the decision; and
(b) his or her rights to make a
complaint to the Ombudsman in relation to the decision; and
(c) the
procedure for the exercise of those rights;
including (where applicable) particulars of the manner in
which an application for review under section 54 may be made.
(5) Section 13
of the Administrative Decisions (Judicial Review) Act 1977 does not
apply to a decision referred to in subsection (3).
(6) A notice under subsection (3) is not
required to contain any 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.
31
Certain periods to be disregarded for the purposes of processing requests
(1) Where an applicant receives a
notification under subsection 29(1) or (6) before the day on which the period
of 30 days mentioned in paragraph 15(5)(b), or that period as extended under
subsection 15(6), in relation to that request expires or, but for the operation
of this subsection, would expire, being a notification to the effect that the
applicant is liable to pay a specified charge in respect of that request, there
shall be disregarded, in the computation of that period, each day occurring
during the period commencing on the day on which that notification is received
by the applicant and ending on the day that is, under subsection (3), the
relevant day in relation to that request.
(3) For the purposes of subsection (1), relevant
day, in relation to a request made by an applicant to whom a
notification has been given under section 29 setting out the applicant’s
liability to pay a specified charge, is:
(a) in a case where the applicant pays
the charge or such deposit on account of the charge as the applicant is
required to pay under the regulations (whether or not the applicant seeks to
have the charge reduced or not imposed under section 29 or seeks a review
of the decision in respect of the charge under section 55)—the day on
which that charge or that deposit is so paid; or
(b) in a case where the applicant,
having not paid the charge or deposit referred to in paragraph (a), seeks
to have the charge reduced or not imposed under section 29:
(i) if a decision is made
by the agency or Minister to reduce the charge—the day on which the applicant
pays the charge as so reduced, or such deposit on account of the charge as so
reduced as the applicant is required to pay under the regulations; or
(ii) if a decision is made
by the agency or Minister not to impose the charge—the day on which the
applicant is notified of the decision; or
(ba) in a case where the request
concerned was made to an agency and the applicant, having not paid the charge
or deposit referred to in paragraph (a), makes application to the agency
under section 54 for a review of the decision to impose the payment of the
charge:
(i) if a decision is made
by the agency setting aside the decision—the day on which the applicant is
notified by the agency of that decision; or
(ii) if a decision is made
by the agency setting aside the decision and making another decision in
substitution for that decision—the day on which the applicant pays the charge
specified in the substituted decision, or such deposit on account of that
charge as the applicant is required to pay under the regulations; or
(c) in a case where the applicant,
having not paid the charge or deposit referred to in paragraph (a), makes
application to the Tribunal under section 55 for a review of the decision
to impose the payment of a charge:
(i) if a decision is made
by the Tribunal setting aside that decision—the day on which the applicant is
notified by the Tribunal of that decision; or
(ii) if
a decision is made by the Tribunal setting aside that decision and making
another decision in substitution for that decision—the day on which the
applicant pays the charge specified in the substituted decision or such deposit
on account of that charge as he or she is required to pay under the
regulations;
whichever day first occurs.
Part IV—Exempt documents
32
Interpretation
A provision of this Part by virtue of
which documents referred to in the provision are exempt documents:
(a) shall not be construed as limited
in its scope or operation in any way by any other provision of this Part by
virtue of which documents are exempt documents; and
(b) shall not be construed as not
applying to a particular document by reason that another provision of this Part
of a kind mentioned in paragraph (a) also applies to that document.
33
Documents affecting national security, defence or international relations
(1) A document is an exempt document if
disclosure of the document under this Act:
(a) would, or could reasonably be
expected to, cause damage to:
(i) the security of the
Commonwealth;
(ii) the defence of the
Commonwealth; or
(iii) the international
relations of the Commonwealth; or
(b) 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 organization 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.
(2) Where a Minister is satisfied that a
document is an exempt document for a reason referred to in subsection (1),
he or she may sign a certificate to that effect (specifying that reason) and,
subject to the operation of Part VI, such a certificate, so long as it
remains in force, establishes conclusively that the document is an exempt
document referred to in subsection (1).
(3) Where a Minister is satisfied as
mentioned in subsection (2) by reason only of matter contained in a
particular part or particular parts of a document, a certificate under that
subsection in respect of the document shall identify that part or those parts
of the document as containing the matter by reason of which the certificate is
given.
(4) Where a Minister is satisfied 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, cause
the last‑mentioned document to be an exempt document under this section
for a reason referred to in subsection (1), he or she may sign a
certificate to that effect (specifying that reason).
(5) The responsible Minister of an agency
may, either generally or as otherwise provided by the instrument of delegation,
by writing signed by him or her, delegate to the principal officer of the
agency his or her powers under this section in respect of documents of the
agency.
(6) A power delegated under subsection (5),
when exercised by the delegate, shall, for the purposes of this Act, be deemed
to have been exercised by the responsible Minister.
(7) A delegation under subsection (5)
does not prevent the exercise of a power by the responsible Minister.
33A
Documents affecting relations with States
(1) Subject to subsection (5), a
document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be
expected to, cause damage to relations between the Commonwealth and a State; or
(b) would divulge information or
matter communicated in confidence by or on behalf of the Government of a State
or an authority of a State, 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.
(2) Where a
Minister is satisfied that a document:
(a) is an exempt document for a reason
referred to in subsection (1); and
(b) is
not a document containing matter the disclosure of which under this Act would
be, on balance, in the public interest;
the Minister may sign a certificate to that effect,
specifying that reason.
(2A) Subject to the operation of Part VI,
such a certificate, so long as it remains in force, establishes conclusively
that the document:
(a) is an exempt document referred to
in subsection (1); and
(b) does not contain matter the
disclosure of which under this Act would, on balance, be in the public
interest.
(3) Where a Minister is satisfied as
mentioned in subsection (2) by reason only of matter contained in a
particular part or particular parts of a document, a certificate under that
subsection in respect of the document shall identify that part or those parts
of the document as containing the matter by reason of which the certificate is
given.
(4) Where a Minister is satisfied that
information as to the existence or non‑existence of a document as
described in a request would, if contained in a document:
(a) cause the last‑mentioned
document to be an exempt document for a reason referred to in subsection (1);
and
(b) not
cause the last‑mentioned document to be a document containing matter the
disclosure of which under this Act would be, on balance, in the public
interest;
the Minister may sign a certificate to that effect,
specifying that reason.
(4A) Subject to the operation of Part VI,
such a certificate, so long as it remains in force, establishes conclusively
that the document:
(a) would be an exempt document
referred to in subsection (1); and
(b) would not contain matter the
disclosure of which under this Act would, on balance, be in the public
interest.
(5) This section does not apply to a document
in respect of matter in the document the disclosure of which under this Act
would, on balance, be in the public interest.
(6) The responsible Minister of an agency
may, either generally or as otherwise provided by the instrument of delegation,
by writing signed by him or her, delegate to the principal officer of the
agency his or her powers under this section in respect of documents of the
agency.
(7) A power delegated under subsection (6),
when exercised by the delegate, shall, for the purposes of this Act, be deemed
to have been exercised by the responsible Minister.
(8) A delegation under subsection (6)
does not prevent the exercise of a power by the responsible Minister.
34
Cabinet documents
(1) A document is an exempt document if it
is:
(a) a document that has been submitted
to the Cabinet for its consideration or is proposed by a Minister to be so
submitted, being a document that was brought into existence for the purpose of
submission for consideration by the Cabinet;
(b) an official record of the Cabinet;
(c) a document that is a copy of, or
of a part of, or contains an extract from, a document referred to in paragraph (a)
or (b); or
(d) a document the disclosure of which
would involve the disclosure of any deliberation or decision of the Cabinet,
other than a document by which a decision of the Cabinet was officially
published.
(1A) This section does not apply to a document
(in this subsection referred to as a relevant document) that is
referred to in paragraph (1)(a), or that is referred to in paragraph (1)(b)
or (c) and is a copy of, or of part of, or contains an extract from, a document
that is referred to in paragraph (1)(a), to the extent that the relevant
document contains purely factual material unless:
(a) the disclosure under this Act of
that document would involve the disclosure of any deliberation or decision of
the Cabinet; and
(b) the fact of that deliberation or
decision has not been officially published.
(2) For the purposes of this Act, a
certificate signed by the Secretary to the Department of the Prime Minister and
Cabinet certifying that a document:
(a) is one of a kind referred to in a
paragraph of subsection (1); and
(b) is
not a document containing purely factual material that is excluded from the
application of this section under subsection (1A);
establishes conclusively, subject to the operation of Part VI,
that it:
(c) is an exempt document of that
kind; and
(d) is not a document containing such
material.
(3) Where a document is a document referred
to in paragraph (1)(c) or (d) by reason only of matter contained in a
particular part or particular parts of the document, a certificate under subsection (2)
in respect of the document shall identify that part or those parts of the
document as containing the matter by reason of which the certificate is given.
(4) For the purposes of this Act, a
certificate signed by the Secretary to the Department of the Prime Minister and
Cabinet certifying that a document as described in a request would, if it
existed:
(a) be one of a kind referred to in a
paragraph of subsection (1); and
(b) not
be a document containing purely factual material that is excluded from the
application of this section under subsection (1A);
establishes conclusively, subject to the operation of Part VI,
that, if such a document exists, it:
(c) is an exempt document of that
kind; and
(d) is not a document containing such
material.
(5) Where a certificate in accordance with subsection (4)
has been signed in respect of a document as described in a request, the
decision on the request may be a decision that access to a document as
described in the request is refused on the ground that, if such a document
existed, it would be an exempt document referred to in the paragraph of subsection (1)
that is specified in the certificate.
(6) A reference in this section to the
Cabinet shall be read as including a reference to a committee of the Cabinet.
35
Executive Council documents
(1) A document is an exempt document if it
is:
(a) a document that has been submitted
to the Executive Council for its consideration or is proposed by a Minister to
be so submitted, being a document that was brought into existence for the
purpose of submission for consideration by the Executive Council;
(b) an official record of the
Executive Council;
(c) a document that is a copy of, or
of a part of, or contains an extract from, a document referred to in paragraph (a)
or (b); or
(d) a document the disclosure of which
would involve the disclosure of any deliberation or advice of the Executive
Council, other than a document by which an act of the Governor‑General,
acting with the advice of the Executive Council, was officially published.
(1A) This section does not apply to a document
(in this subsection referred to as a relevant document) that is
referred to in paragraph (1)(a), or that is referred to in paragraph (1)(b)
or (c) and is a copy of, or of part of, or contains an extract from, a document
that is referred to in paragraph (1)(a), to the extent that the relevant
document contains purely factual material unless:
(a) the disclosure under this Act of
that document would involve the disclosure of any deliberation or advice of the
Executive Council; and
(b) the fact of that deliberation or
advice has not been officially published.
(2) For the purposes of this Act, a
certificate signed by a person who is, or is performing the duties of, the
Secretary to the Executive Council, certifying that a document:
(a) is one of a kind referred to in a
paragraph of subsection (1); and
(b) is
not a document containing purely factual material that is excluded from the
application of this section under subsection (1A);
establishes conclusively, subject to the operation of Part VI,
that it:
(c) is an exempt document of that
kind; and
(d) is not a document containing such
material.
(3) Where a document is a document referred
to in paragraph (1)(c) or (d) by reason only of matter contained in a
particular part or particular parts of the document, a certificate under subsection (2)
in respect of the document shall identify that part or those parts of the
document as containing the matter by reason of which the certificate is given.
(4) For the purposes of this Act, a
certificate signed by a person who is, or is performing the duties of, the
Secretary to the Executive Council, certifying that a document as described in
a request would, if it existed:
(a) be one of a kind referred to in a
paragraph of subsection (1); and
(b) not
be a document containing purely factual material that is excluded from the
application of this section under subsection (1A);
establishes conclusively, subject to the operation of Part VI,
that, if such a document exists, it:
(c) is an exempt document of that
kind; and
(d) is not a document containing such
material.
(5) Where a
certificate in accordance with subsection (4) has been signed in respect
of a document as described in a request, the decision on the request may be a
decision that access to a document as described in the request is refused on
the ground that, if such a document existed, it would be an exempt document
referred to in the paragraph of subsection (1) that is specified in the
certificate.
36
Internal working documents
(1) Subject to this section, a document is an
exempt document if it is a document the disclosure of which under this Act:
(a) would disclose matter in the
nature of, or relating to, opinion, advice or recommendation obtained, prepared
or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purposes of, the deliberative processes involved in the
functions of an agency or Minister or of the Government of the Commonwealth;
and
(b) would be contrary to the public
interest.
(2) In the case of a document of the kind
referred to in subsection 9(1), the matter referred to in paragraph (1)(a)
of this section does not include matter that is used or to be used for the
purpose of the making of decisions or recommendations referred to in subsection
9(1).
(3) Where a Minister is satisfied, in
relation to a document to which paragraph (1)(a) applies, that the
disclosure of the document would be contrary to the public interest, he or she
may sign a certificate to that effect (specifying the ground of public interest
in relation to which the certificate is given) and, subject to the operation of
Part VI, such a certificate, so long as it remains in force, establishes
conclusively that the disclosure of that document would be contrary to the
public interest.
(4) Where a Minister is satisfied as
mentioned in subsection (3) by reason only of matter contained in a
particular part or particular parts of a document, a certificate under that
subsection in respect of the document shall identify that part or those parts
of the document as containing the matter by reason of which the certificate is
given.
(5) This section does not apply to a document
by reason only of purely factual material contained in the document.
(6) This section does not apply to:
(a) reports (including reports
concerning the results of studies, surveys or tests) of scientific or technical
experts, whether employed within an agency or not, including reports expressing
the opinions of such experts on scientific or technical matters;
(b) reports of a prescribed body or
organization established within an agency; or
(c) the record of, or a formal
statement of the reasons for, a final decision given in the exercise of a power
or of an adjudicative function.
(7) Where a decision is made under Part III
that an applicant is not entitled to access to a document by reason of the
application of this section, the notice under section 26 shall state the
ground of public interest on which the decision is based.
(8) The
responsible Minister of an agency may, either generally or as otherwise
provided by the instrument of delegation, by writing signed by him or her,
delegate to the principal officer of the agency his or her powers under this
section in respect of documents of the agency.
(9) A power delegated under subsection (8),
when exercised by the delegate, shall, for the purposes of this Act, be deemed
to have been exercised by the responsible Minister.
(10) A delegation under subsection (8)
does not prevent the exercise of a power by the responsible Minister.
36A
Periods for which certain certificates remain in force
(1) The regulations may, in respect of
certificates under subsections 33(2), 33(4), 33A(2), 33A(4), 34(2), 34(4),
35(2), 35(4) and 36(3), prescribe:
(a) periods as the maximum periods
during which such certificates may remain in force; and
(b) the manner in which such
certificates may be revoked before the end of such periods.
(2) Where a regulation made for the purposes
of subsection (1) provides a maximum period during which certificates of a
particular kind may remain in force, a certificate of that kind (whether made
before or after the regulation came into force) remains in force for that
period unless it is revoked, in accordance with the regulations, before the end
of that period.
37
Documents affecting enforcement of law and protection of public safety
(1) A document is an exempt document if its
disclosure under this Act 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;
(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.
(2) A document is an exempt document if its
disclosure under this Act would, or could reasonably be expected to:
(a) prejudice the fair trial of a
person or the impartial adjudication of a particular case;
(b) disclose lawful methods or
procedures for preventing, detecting, investigating, or dealing with matters
arising out of, breaches or evasions of the law the disclosure of which would,
or would be reasonably likely to, prejudice the effectiveness of those methods
or procedures; or
(c) prejudice the maintenance or
enforcement of lawful methods for the protection of public safety.
(2A) For the
purposes of paragraph (1)(b), a person is taken to be a confidential
source of information in relation to the enforcement or administration of the
law if the person is receiving, or has received, protection under a program
conducted under the auspices of the Australian Federal Police, or the police
force of a State or Territory, for the protection of:
(a) witnesses; or
(b) people who, because of their
relationship to, or association with, a witness need, or may need, such
protection; or
(c) any other people who, for any other
reason, need or may need, such protection.
(3) In this section, law means
law of the Commonwealth or of a State or Territory.
38
Documents to which secrecy provisions of enactments apply
(1) Subject to subsection (1A), a
document is an exempt document if:
(a) disclosure of the document, or
information contained in the document, is prohibited under a provision of an
enactment; and
(b) either:
(i) that provision is
specified in Schedule 3; or
(ii) this section is
expressly applied to the document, or information, by that provision, or by
another provision of that or any other enactment.
(1A) A person’s right of access to a document
under section 11 or 22 is not affected merely because the document is an
exempt document under subsection (1) of this section if disclosure of the
document, or information contained in the document, to that person is not
prohibited by the enactment concerned or any other enactment.
(2) Subject to subsection (3), if a
person requests access to a document, this section does not apply in relation
to the document so far as it contains personal information about the person.
(3) This
section applies in relation to a document so far as it contains personal
information about a person if:
(a) the person requests access to the
document; and
(b) disclosure of the document, or
information contained in the document, is prohibited under section 503A of
the Migration Act 1958 as affected by section 503D of that Act.
39
Documents affecting financial or property interests of the Commonwealth
(1) Subject to subsection (2), a
document is an exempt document if its disclosure under this Act would have a
substantial adverse effect on the financial or property interests of the
Commonwealth or of an agency.
(2) This section does not apply to a document
in respect of matter in the document the disclosure of which under this Act
would, on balance, be in the public interest.
40
Documents concerning certain operations of agencies
(1) Subject to subsection (2), a
document is an exempt document if its disclosure under this Act would, or could
reasonably be expected to:
(a) prejudice the effectiveness of
procedures or methods for the conduct of tests, examinations or audits by an
agency;
(b) prejudice the attainment of the
objects of particular tests, examinations or audits conducted or to be
conducted by an agency;
(c) have a substantial adverse effect
on the management or assessment of personnel by the Commonwealth or by an
agency;
(d) have a substantial adverse effect
on the proper and efficient conduct of the operations of an agency; or
(e) have a substantial adverse effect
on the conduct by or on behalf of the Commonwealth or an agency of industrial
relations.
(2) This section does not apply to a document
in respect of matter in the document the disclosure of which under this Act
would, on balance, be in the public interest.
41
Documents affecting personal privacy
(1) A document is an exempt document if its
disclosure under this Act would involve the unreasonable disclosure of personal
information about any person (including a deceased person).
(2) Subject to subsection (3), the
provisions of subsection (1) do not have effect in relation to a request
by a person for access to a document by reason only of the inclusion in the
document of matter relating to that person.
(3) Where:
(a) a request is made to an agency or
Minister for access to a document of the agency, or an official document of the
Minister, that contains information concerning the applicant, being information
that was provided by a qualified person acting in his or her capacity as a
qualified person; and
(b) it
appears to the principal officer of the agency or to the Minister (as the case
may be) that the disclosure of the information to the applicant might be
detrimental to the applicant’s physical or mental health, or well‑being;
the principal officer or Minister may, if access to the
document would otherwise be given to the applicant, direct that access to the
document, so far as it contains that information, is not to be given to the
applicant but is to be given instead to a qualified person who:
(c) carries on the same occupation, of
a kind mentioned in the definition of qualified person in subsection (8),
as the first‑mentioned qualified person; and
(d) is to be nominated by the
applicant.
(4) Subject to
subsection (5), where:
(a) access to a document has been
given to a person; and
(b) the document contains personal
information of a medical or psychiatric nature, about the person that has been
provided by, or has originated from, a qualified person acting in his or her
capacity as a qualified person; and
(c) access
was not given with the qualified person’s knowledge;
the principal officer or Minister (as the case may be)
must notify the qualified person that access to the document has been so given.
(5) Subsection (4) does not apply if it
is not reasonably practicable to notify the qualified person.
(6) Without limiting the matters that may be
considered in deciding whether it is not reasonably practicable to notify the
qualified person, consideration is to be given to:
(a) the length of time since the
information was provided by, or originated from, the qualified person; and
(b) the likelihood that the qualified
person is still carrying on the same occupation; and
(c) the frequency with which, but for subsection (5),
the principal officer or Minister would be required to make notifications under
subsection (4); and
(d) the resources available to make
such notifications.
(7) The powers and functions of the principal
officer of an agency under this section may be exercised by an officer of the
agency acting within his or her scope of authority in accordance with
arrangements referred to in section 23.
(8) In this section:
qualified person means a person who carries
on, and is entitled to carry on, an occupation that involves the provision of
care for the physical or mental health of people or for their well‑being,
and, without limiting the generality of the foregoing, includes any of the
following:
(a) a medical practitioner;
(b) a psychiatrist;
(c) a psychologist;
(d) a marriage guidance counsellor;
(e) a social worker.
42
Documents subject to legal professional privilege
(1) A document is an exempt document if it is
of such a nature that it would be privileged from production in legal
proceedings on the ground of legal professional privilege.
(2) A document of the kind referred to in
subsection 9(1) is not an exempt document by virtue of subsection (1) of
this section by reason only of the inclusion in the document of matter that is
used or to be used for the purpose of the making of decisions or
recommendations referred to in subsection 9(1).
43
Documents relating to business affairs etc.
(1) A document is an exempt document if its
disclosure under this Act would disclose:
(a) trade secrets;
(b) any other information having a
commercial value that would be, or could reasonably be expected to be,
destroyed or diminished if the information were disclosed; or
(c) information (other than trade
secrets or information to which paragraph (b) applies) concerning a person
in respect of his or her business or professional affairs or concerning the
business, commercial or financial affairs of an organization or undertaking,
being information:
(i) the disclosure of
which would, or could reasonably be expected to, unreasonably affect that
person adversely in respect of his or her lawful business or professional
affairs or that organization or undertaking in respect of its lawful business,
commercial or financial affairs; or
(ii) the disclosure of
which under this Act could reasonably be expected to prejudice the future
supply of information to the Commonwealth or an agency for the purpose of the
administration of a law of the Commonwealth or of a Territory or the administration
of matters administered by an agency.
(2) The
provisions of subsection (1) do not have effect in relation to a request
by a person for access to a document:
(a) by reason only of the inclusion in
the document of information concerning that person in respect of his or her
business or professional affairs;
(b) by
reason only of the inclusion in the document of information concerning the
business, commercial or financial affairs of an undertaking where the person
making the request is the proprietor of the undertaking or a person acting on
behalf of the proprietor; or
(c) by reason only of the inclusion in
the document of information concerning the business, commercial or financial
affairs of an organization where the person making the request is the
organization or a person acting on behalf of the organization.
(3) A reference in this section to an
undertaking includes a reference to an undertaking that is carried on by, or by
an authority of, the Commonwealth or a State or by a local government
authority.
(4) For the purposes of paragraph (1)(c),
information is not taken to concern a person in respect of the person’s
professional affairs merely because it is information concerning the person’s
status as a member of a profession.
43A
Documents relating to research
(1) A document is an exempt document if:
(a) it contains information relating
to research that is being, or is to be, undertaken by an officer of an agency
specified in Schedule 4; and
(b) disclosure of the information
before the completion of the research would be likely unreasonably to expose
the agency or officer to disadvantage.
(2) This section does not apply to a document
that, so far as it contains information relating to research, only contains
information relating to research that has been completed.
44
Documents affecting national economy
(1) A document is an exempt document if its
disclosure under this Act would be contrary to the public interest by reason
that it:
(a) would, or could reasonably be
expected to, have a substantial adverse effect on the ability of the Government
of the Commonwealth to manage the economy of Australia; or
(b) could reasonably be expected to
result in an undue disturbance of the ordinary course of business in the
community, or an undue benefit or detriment to any person or class of persons,
by reason of giving premature knowledge of or concerning proposed or possible
action or inaction of the Government or Parliament of the Commonwealth.
(2) The kinds of documents to which subsection (1)
may apply include, but are not limited to, documents containing matter relating
to:
(a) currency or exchange rates;
(b) interest rates;
(c) taxes, including duties of customs
or of excise;
(d) the regulation or supervision of
banking, insurance and other financial institutions;
(e) proposals for expenditure;
(f) foreign investment in Australia;
or
(g) borrowings by the Commonwealth, a
State or an authority of the Commonwealth or of a State.
45
Documents containing material obtained in confidence
(1) A document is an exempt document if its
disclosure under this Act would found an action, by a person (other than an
agency or the Commonwealth), for breach of confidence.
(2) Subsection (1) does not apply to any
document to the disclosure of which paragraph 36(1)(a) applies or would apply,
but for the operation of subsection 36(2), (5) or (6), being a document
prepared by a Minister, a member of the staff of a Minister, or an officer or
employee of an agency, in the course of his or her duties, or by a prescribed
authority in the performance of its functions, for purposes relating to the
affairs of an agency or a Department of State unless the disclosure would
constitute a breach of confidence owed to a person or body other than:
(a) a person in the capacity of
Minister, member of the staff of a Minister or officer of an agency; or
(b) an agency or the Commonwealth.
46
Documents disclosure of which would be contempt of Parliament or contempt of
court
A document is an exempt document if
public disclosure of the document would, apart from this Act and any immunity
of the Crown:
(a) be in contempt of court;
(b) be contrary to an order made or
direction given by a Royal Commission or by a tribunal or other person or body
having power to take evidence on oath; or
(c) infringe the privileges of the
Parliament of the Commonwealth or of a State or of a House of such a Parliament
or of the Legislative Assembly of the Northern Territory or of Norfolk Island.
47
Certain documents arising out of companies and securities legislation
(1) A document is an exempt document if it
is, or is a copy of or of a part of, or contains an extract from:
(a) a document for the purposes of the
Ministerial Council for Companies and Securities prepared by, or received by an
agency or Minister from, a State or an authority of a State;
(b) a document the disclosure of which
would disclose the deliberations or decisions of the Ministerial Council for
Companies and Securities, other than a document by which a decision of that
Council was officially published;
(c) a document furnished to the
National Companies and Securities Commission by a State or an authority of a
State and relating solely to the functions of the Commission in relation to the
law of a State or the laws of 2 or more States; or
(d) a
document, other than a document referred to in paragraph (c), that is in
the possession of the National Companies and Securities Commission and relates
solely to the exercise of the functions of that Commission under a law of a
State or the laws of 2 or more States.
(2) On and after the abolition of the
National Companies and Securities Commission:
(a) subsection (1) is taken to
have effect as if paragraphs (1)(c) and (d) were omitted; and
(b) a document that:
(i) was an exempt document
because of paragraph (1)(c) or (d) immediately before that day; or
(ii) is
a copy of or a part of, or contains an extract from, such an exempt document;
is an exempt document if it is
in the possession of a Minister or an agency.
Note: The National Companies and Securities
Commission was abolished on 31 July 1992, being a day fixed by
Proclamation in accordance with subsection 2(10) of the Corporations
Legislation Amendment Act 1991.
47A
Electoral rolls and related documents
(1) In this section:
Electoral Act means the Commonwealth
Electoral Act 1918.
electoral roll
means:
(a) a
Roll of the electors of:
(i) a State or Territory;
or
(ii) a Division (within the
meaning of the Electoral Act); or
(iii) a
Subdivision (within the meaning of the Electoral Act);
prepared under the Electoral
Act; or
(b) any part of a Roll referred to in paragraph (a).
(2) Subject to
this section, a document is an exempt document if it is:
(a) an electoral roll; or
(b) a print, or a copy of a print, of
an electoral roll; or
(c) a microfiche of an electoral roll;
or
(d) a copy on tape or disk of an
electoral roll; or
(e) a document that:
(i) sets out particulars
of only one elector; and
(ii) was used to prepare an
electoral roll; or
(f) a document that:
(i) is a copy of a
document referred to in paragraph (e); or
(ii) contains only copies
of documents referred to in paragraph (e); or
(g) a document (including a habitation
index within the meaning of the Electoral Act) that:
(i) sets out particulars
of electors; and
(ii) was derived from an
electoral roll.
(3) The part of an electoral roll that sets
out the particulars of an elector is not an exempt document in relation to the
elector.
(4) Any print, copy of a print, microfiche,
tape or disk that sets out or reproduces only the particulars entered on an
electoral roll in respect of an elector is not an exempt document in relation
to the elector.
(5) A document that sets out only the
particulars of one elector and:
(a) is a copy of a document referred
to in paragraph (2)(e); or
(b) is
a copy, with deletions, of a document referred to in paragraph (2)(e), (f)
or (g);
is not an exempt document in relation to the elector.
Part V—Amendment and annotation of personal records
48
Application for amendment or annotation of personal records
Where a person claims that a document of
an agency or an official document of a Minister to which access has been
lawfully provided to the person, whether under this Act or otherwise, contains
personal information about that person:
(a) that is incomplete, incorrect, out
of date or misleading; and
(b) that
has been used, is being used or is available for use by the agency or Minister
for an administrative purpose;
the person may apply to the agency or Minister for:
(c) an amendment; or
(d) an
annotation;
of the record of that information kept by the agency or
Minister.
49
Requirements of an application for amendment
An application for amendment must:
(a) be in writing; and
(b) as far as practicable, specify:
(i) the document or
official document containing the record of personal information that is claimed
to require amendment; and
(ii) the information that
is claimed to be incomplete, incorrect, out of date or misleading; and
(iii) whether the
information is claimed to be incomplete, incorrect, out of date or misleading;
and
(iv) the applicant’s reasons
for so claiming; and
(v) the amendment requested
by the applicant; and
(c) specify an address in Australia to
which a notice under this Part may be sent to the applicant; and
(d) be
sent by post to the agency or Minister, or delivered to an officer of the
agency or a member of the staff of the Minister, at the address of the office
of the agency or Minister (as the case may be) determined in accordance with
paragraph 15(2)(d).
50
Amendment of records
(1) Subject to section 51C, where the
agency or Minister to whom such an application is made is satisfied that:
(a) the record of personal information
to which the request relates is contained in a document of the agency or an
official document of the Minister, as the case may be; and
(b) the information is incomplete,
incorrect, out of date or misleading; and
(c) the
information has been used, is being used or is available for use by the agency
or Minister for an administrative purpose;
the agency or Minister may amend the record of
information.
(2) The agency or Minister may make the
amendment:
(a) by altering the document or
official document concerned to make the information complete, correct, up to
date or not misleading; or
(b) by adding to that document or
official document a note:
(i) specifying the
respects in which the agency or Minister is satisfied that the information is
incomplete, incorrect, out of date or misleading; and
(ii) in a case where the
agency or Minister is satisfied that the information is out of date—setting out
such information as is required to bring the information up to date.
(3) To the extent that it is practicable to
do so, the agency or Minister must, when making an amendment under paragraph (2)(a),
ensure that the record of information is amended in a way that does not
obliterate the text of the record as it existed prior to the amendment.
51
Annotations of records etc. following unsuccessful applications for amendments
of records
(1) Where an agency or Minister decides not
to amend a document or official documents wholly or partly in accordance with
an application under section 48, the agency or Minister must:
(a) take such steps as are reasonable
in the circumstances to enable the applicant to provide a statement of the kind
mentioned in paragraph 51A(c); and
(b) subject to subsection (2),
annotate the document or official document concerned by adding to it the
statement so provided.
(2) Paragraph (1)(b) does not apply if
the agency or Minister considers the statement to be irrelevant, defamatory or
unnecessarily voluminous.
(3) For the purposes of this Act, the
provision by the applicant of a statement under subsection (1) is taken to
be an application made under section 51A on the day the statement is so
provided.
51A
Requirements of an application for annotation
An application for annotation must:
(a) be in writing; and
(b) as far as practicable, specify the
document or official document containing the record of personal information
that is claimed to require annotation; and
(c) be accompanied by a statement by
the applicant that specifies:
(i) the information that
is claimed to be incomplete, incorrect, out of date or misleading; and
(ii) whether the information
is claimed to be incomplete, incorrect, out of date or misleading; and
(iii) the applicant’s
reasons for so claiming; and
(iv) such other information
as would make the information complete, correct, up to date or not misleading;
and
(d) specify an address in Australia to
which a notice under this Part may be sent to the applicant; and
(e) be sent by post to the agency or
Minister, or delivered to an officer of the agency or a member of the staff of
the Minister, at the address of the office of the agency or Minister (as the
case may be) determined in accordance with paragraph 15(2)(d).
51B
Annotation of records
(1) Subject to section 51C, where the
agency or Minister to whom such an application is made is satisfied that the
record of personal information to which the request relates is contained in a
document of the agency or an official document of the Minister (as the case may
be), the agency or Minister must annotate the document or official document by
adding to it the statement provided by the applicant under paragraph 51A(c).
(2) Subsection (1) does not apply if the
agency or Minister considers the statement to be irrelevant, defamatory or
unnecessarily voluminous.
51C
Transfer of requests
(1) Where an application is made under
section 48 to an agency or a Minister and:
(a) the document containing the record
of personal information to which the request relates is not in the possession
of that agency or Minister, but is, to the knowledge of the agency or Minister,
in the possession of another agency or Minister; or
(b) the
subject matter of that document is more closely connected with the functions of
another agency or Minister than with those of the agency or Minister to whom
the application is made;
the agency or Minister to whom the application is made
may, with the agreement of the other agency or Minister, transfer the
application to the other agency or Minister.
(2) Where an application is made under
section 48 to an agency or Minister and the document containing the record
of personal information to which the application relates:
(a) originated with, or has been
received from, a body or person specified in Part I of Schedule 2;
and
(b) is
more closely connected with the functions of that body or person than with
those of the agency or Minister to whom the application is made;
the agency or Minister to whom the application is made
must transfer the application:
(c) to the Department corresponding to
the Department of State administered by the Minister who administers the
enactment by or under which the body or person is established, continued in
existence or appointed; or
(d) if the application relates to a
document that originated with, or has been received from, a part of the
Department of Defence specified in Division 2 of Part I of Schedule 2—to
that Department.
(3) Where an application is made under
section 48 to an agency or a Minister and the document containing the
record of personal information to which the application relates:
(a) originated in, or has been
received from, another agency, being an agency specified in Part II of
Schedule 2 or an agency that is a body corporate established by or under
an Act specified in Part III of Schedule 2; and
(b) is
more closely connected with the functions of the other agency in relation to
documents in respect of which the other agency is exempt from the operation of
this Act than with the functions of the agency or Minister to whom the
application is made;
the agency or Minister to whom the application is made
must transfer the application to the other agency.
(4) Where:
(a) an application made under section 48
to an agency or a Minister concerns records of personal information contained
in more than one document; and
(b) one
or more of those documents is a document to which subsection (1), (2) or
(3) applies;
this section applies to each of those documents as if
separate applications had been made to the agency or Minister in respect of
records of personal information contained in each of those documents.
(5) Where an application is transferred to an
agency or Minister under this section, the agency or Minister making the
transfer must:
(a) inform the person making the
application of the transfer; and
(b) if it is necessary to do so in
order to enable the other agency or Minister to deal with the application, send
the document concerned to the other agency or Minister.
(6) Where an application is transferred to an
agency or a Minister under this section, the application is to be taken to be
an application:
(a) made to that agency or Minister
under section 48; and
(b) received by the agency or Minister
at the time at which it was first received by an agency or Minister.
(7) Where:
(a) an application has been
transferred to an agency or Minister in accordance with this section; and
(b) the
agency or Minister to whom the application has been transferred decides to
amend or annotate, under this Part, a record of personal information to which
the application relates;
the agency or Minister must, by written notice, notify the
agency or Minister who made the transfer:
(c) of that decision; and
(d) of any amendment or annotation
made by the first‑mentioned agency or Minister in relation to that
record.
(8) Where the agency or Minister receiving a
notice under subsection (7) is in possession of a document containing the
record of personal information to which the application relates, the agency or
Minister must, upon receiving the notice, amend or annotate the record in the
same manner as the record was amended or annotated by the agency or Minister to
whom the application was transferred.
51D
Notification etc. of a decision under this Part
(1) Where an application is made to an agency
or Minister under this Part, the agency or Minister must take all reasonable
steps to enable the applicant to be notified of a decision on the application
as soon as practicable but in any case not later than 30 days after the day on
which the request is received by or on behalf of the agency or Minister.
(2) Section 23 applies in relation to a
decision on an application made under section 48.
(3) Section 26 applies in relation to a
decision made under this Part refusing to amend or annotate a record as if that
decision were a decision made under Part III refusing to grant access to a
document in accordance with a request made under subsection 15(1).
51E
Comments on annotations
Nothing in this Part prevents an agency
or Minister adding the agency’s or Minister’s comments to an annotation made to
a record of information under section 51 or 51B.
Part VI—Review of decisions
53
Interpretation
For the purposes of this Part, unless
the contrary intention appears:
(a) a certificate given under
subsection 33(4), 33A(4), 34(4) or 35(4) in respect of a document as described
in a request shall be deemed to be a certificate given in respect of the
document so described notwithstanding that the certificate does not acknowledge
the existence or non‑existence of the document so described; and
(b) a claim that a document would, if
it exists, be an exempt document under section 33, 33A, 34 or 35 shall be
deemed to be a claim that the document is an exempt document under that section
notwithstanding that the existence or non‑existence of the document is
not acknowledged.
54
Internal review
(1) Subject to subsection (1A), where a
decision has been made, in relation to a request to an agency, otherwise than
by the responsible Minister or principal officer of the agency, being:
(a) a decision refusing to grant
access to a document in accordance with a request; or
(b) a decision granting access to a
document but not granting, in accordance with the request, access to all
documents to which the request relates; or
(ba) a decision purporting to grant, in
accordance with a request, access to all documents to which the request
relates, but not actually granting that access; or
(c) a decision to defer the provision
of access to a document; or
(d) a decision under section 29
relating to imposition of a charge or the amount of a charge; or
(e) a decision under section 30A
relating to remission of an application fee; or
(f) a decision to grant access to a
document only to a qualified person under subsection 41(3); or
(g) a decision refusing to amend a
record of personal information in accordance with an application made under
section 48; or
(h) a
decision refusing to annotate a record of personal information in accordance
with an application made under section 48;
the applicant may, by application in writing to the agency
accompanied by any application fee in respect of the application, request a
review of the decision.
(1A) The application must be made:
(a) in the case of a decision of a
kind mentioned in paragraphs (1)(a), (c), (d), (e), (g) and (h)—within 30
days, or such further period as the agency allows, after the day on which the
decision is notified to the applicant; or
(b) in the case of a decision of a
kind mentioned in paragraph (1)(b), (ba) or (f):
(i) within 30 days, or
such further period as the agency allows, after the day on which the decision
is notified to the applicant; or
(ii) within
15 days after the day on which the access referred to in that paragraph was
granted;
whichever period is longer.
(1B) A decision by an agency to allow a further
period for making an application may be made whether or not the time for making
such an application has already expired.
(1C) Subject to subsection (1F), where:
(a) arrangements of the kind mentioned
in section 26A have been entered into between the Commonwealth and a
State; and
(b) an agency has decided, in relation
to a request to the agency for access to a document that relates to the State
in a way mentioned in paragraph 26A(1)(a), that the document, or an edited copy
of the document, is not an exempt document under section 33A; and
(c) the
decision was not made by the responsible Minister or principal officer of the
agency;
the State may, by application in writing to the agency,
request a review of the decision.
(1D) Subject to subsection (1F), where:
(a) on a request of a kind mentioned
in subsection 27(1) being made to an agency, the agency has decided that the
document to which the request relates, or an edited copy of the document, being
a document or edited copy that contains information concerning a person,
organisation or proprietor of an undertaking, is not an exempt document under
section 43 by virtue of containing that information; and
(b) the
decision was not made by the responsible Minister or principal officer of the
agency;
the person, organisation or proprietor may, by application
in writing to the agency, request a review of the decision.
(1E) Subject to subsection (1F), where:
(a) on a request of a kind mentioned
in subsection 27A(1AA) being made to an agency, the agency has decided that the
document to which the request relates, or an edited copy of the document, being
a document or edited copy that contains personal information about a person, is
not an exempt document under section 41 by virtue of containing that
information; and
(b) the
decision was not made by the responsible Minister or principal officer of the
agency;
the person may, by application in writing to the agency,
request a review of the decision.
(1F) An application under subsection (1C),
(1D) or (1E) must be made within 30 days, or such further period as the agency
allows, after the day on which notice of the decision was given to the
applicant.
(1G) An agency’s power under subsection (1A)
or (1F) to allow a further period for making an application may be exercised by
an officer of the agency acting within the scope of authority exercisable by
him or her in accordance with the arrangements approved by the responsible
Minister or principal officer of the agency.
(2) Subject to subsection (3), where an
application for a review of a decision is made to the agency under this
section, it must as soon as practicable arrange for a person (not being the
person who made the decision) to conduct such reviews to review the decision
and make a fresh decision.
(3) Subsections (1), (1C), (1D) and (1E)
do not apply in relation to:
(a) a decision made on a review under
this section; or
(b) a decision in relation to the
provision of access to a document upon a request that is, under subsection
56(1) or (3), to be deemed to have been given.
(4) The provisions of section 26 extend
to a decision made under this section.
55
Applications to Administrative Appeals Tribunal
(1) Subject to this section, an application
may be made to the Administrative Appeals Tribunal for review of:
(a) a decision refusing to grant
access to a document in accordance with a request; or
(aa) a decision granting access to a
document but not granting, in accordance with a request, access to all
documents to which the request relates; or
(ab) a decision purporting to grant, in
accordance with a request, access to all documents to which the request
relates, but not actually granting that access; or
(b) a decision to defer the provision
of access to a document; or
(c) a decision refusing to allow a
further period for making an application under subsection 54(1) for a review of
a decision; or
(d) a decision under section 29
relating to imposition of a charge or the amount of a charge; or
(e) a decision under section 30A
relating to remission of an application fee; or
(f) a decision to grant access to a
document only to a qualified person under subsection 41(3); or
(g) a decision refusing to amend a
record of personal information in accordance with an application made under
section 48; or
(h) a decision refusing to annotate a
record of personal information in accordance with an application made under
section 48.
(2) Subject to subsection (3), where, in
relation to a decision referred to in subsection (1), a person is or has
been entitled to apply under section 54 for a review of the decision, that
person is not entitled to make an application under subsection (1) in
relation to that decision, but may make such an application in respect of the
decision made on such a review.
(3) Subsection (2) does not prevent an
application to the Tribunal in respect of a decision where:
(a) the person concerned has applied
under section 54 for a review of the decision;
(b) a period of 30 days has elapsed
since the day on which that application was received by or on behalf of the
agency concerned; and
(c) he
or she has not been informed of the result of the review;
and such an application to the Tribunal may be treated by
the Tribunal as having been made within the time allowed by subsection (4)
if it appears to the Tribunal that there was no unreasonable delay in making
the application to the Tribunal.
(4) Notwithstanding section 29 of the Administrative
Appeals Tribunal Act 1975, the period within which (subject to any
extension granted by the Tribunal) an application under subsection (1) of
this section is to be made in respect of a decision is:
(a) except where paragraph (b) or
(c) applies—the period commencing on the day on which notice of the decision
was given to the applicant in accordance with section 26 and ending on the
sixtieth day after that day;
(b) where the decision is a decision
that is to be deemed by subsection 56(1) or (3) to have been made—the period
commencing on the day on which the decision is to be deemed to have been made
and ending on the sixtieth day after that day; or
(c) where subsection 57(3) is
applicable—the period commencing on the day on which the Ombudsman has informed
the applicant as referred to in that subsection and ending on the sixtieth day
after that day.
(5) The Tribunal’s power to make a decision
on a review of a decision refusing to grant access to a document on a ground
mentioned in section 24A includes a power to require the agency or
Minister concerned to conduct further searches for the document.
(5A) The Tribunal’s power to make a decision on
a review of a decision of a kind mentioned in paragraph (1)(ab) includes a
power to require the agency or Minister concerned to conduct further searches
for the document.
(6) The Tribunal must not, on a review of a
decision of a kind mentioned in paragraph (1)(g), make a decision that requires,
or has the effect of requiring, an amendment to be made to a record if it is
satisfied that:
(a) the record is a record of a
decision, under an enactment, by a court, tribunal, authority or person; or
(b) the decision whether to amend the
document involves a determination of a question that the applicant concerned
is, or has been, entitled to have determined by a court or tribunal (other than
the Tribunal); or
(c) the amendment relates to a record
of an opinion to which neither of the following applies;
(i) the opinion was based
on a mistake of fact;
(ii) the author of the
opinion was biased, unqualified to form the opinion or acted improperly in
conducting the factual inquiries that led to the formation of the opinion.
56
Application to Tribunal where decision delayed
(1) Subject to this section, where:
(a) a request has been made to an
agency or Minister in accordance with section 15; and
(b) the period of 30 days, in relation
to the request, mentioned in paragraph 15(5)(b), or that period as extended
under subsection 15(6), has expired since the day on which the request was
received by or on behalf of the agency or Minister; and
(c) notice
of a decision on the request has not been received by the applicant;
the principal officer of the agency or the Minister shall,
for the purpose of enabling an application to be made to the Tribunal under
section 55, be deemed to have made, on the last day of that period, a
decision refusing to grant access to the document.
(1A) Subject to this section, where:
(a) an application has been made to an
agency or Minister under section 48; and
(b) a period of 30 days, in relation
to the application, mentioned in section 51D has expired since the day on
which the application was received by or on behalf of the agency or Minister;
and
(c) notice
of a decision on the request has not been received by the applicant;
the principal officer of the agency or the Minister is,
for the purpose of enabling an application to be made to the Tribunal under
section 55, taken to have made, on the last day of that period, a decision
refusing to amend or annotate the record of personal information to which the
application relates.
(2) Where a complaint is made to the
Ombudsman under the Ombudsman Act 1976 concerning failure to make and
notify to the applicant a decision on a request (whether the complaint was made
before or after the expiration of the period referred to in subsection (1)
or (1A), as the case may be), an application to the Tribunal under section 55
of this Act by virtue of this section shall not be made before the Ombudsman
has informed the applicant of the result of the complaint in accordance with
section 12 of the Ombudsman Act 1976.
(3) Where such a complaint is made before the
expiration of the period referred to in subsection (1) or (1A), as the
case may be, the Ombudsman, after having investigated the complaint, may, if he
or she is of the opinion that there has been unreasonable delay by an agency in
connection with the request, grant to the applicant a certificate certifying
that he or she is of that opinion, and, if the Ombudsman does so, the principal
officer of the agency or the Minister, as the case requires, shall, for the
purpose of enabling application to be made to the Tribunal under section 55,
be deemed to have made, on the day on which the certificate is granted, a
decision refusing to grant access to the document.
(4) The Ombudsman shall not grant a
certificate under subsection (3) where the request to which the complaint
relates was made to, or has been referred to, a Minister and is awaiting
decision by him or her.
(5) Where, after an application has been made
to the Tribunal by virtue of this section but before the Tribunal has finally
dealt with the application, a decision is given, other than a decision:
(a) to grant, without deferment,
access to the document in accordance with the request; or
(b) to
amend or annotate the record of personal information to which the application
relates;
the Tribunal may treat the proceedings as extending to a
review of that decision in accordance with this Part.
(6) Before dealing further with an
application made by virtue of this section, the Tribunal may, on the
application of the agency or Minister concerned, allow further time to the
agency or Minister to deal with the request.
57
Complaints to Ombudsman
(1) Subject to this Act, a person may
complain to the Ombudsman concerning action taken by an agency to which this
section applies in the exercise of powers or the performance of functions under
this Act.
(2) In spite of anything contained in this
Act, but subject to subsection 6(2) of the Ombudsman Act, the exercise of the
powers of the Ombudsman under the Ombudsman Act in respect of matters arising
under this Act is not precluded or restricted because of the rights conferred
on persons by this Act to make applications to the Tribunal.
(3) Where a complaint is made to the
Ombudsman under the Ombudsman Act concerning a decision under this Act, an
application to the Tribunal for a review of the decision must not be made
before the Ombudsman has informed the applicant of the result of the complaint
under section 12 of the Ombudsman Act.
(4) In spite of anything contained in the
Ombudsman Act, a report under that Act to a complainant in respect of a complaint
arising out of a request under this Act must not contain information of the
kind referred in subsection 25(1) of this Act.
(5) Where:
(a) the Ombudsman has commenced an
investigation of a decision made under this Act not to grant a request for access
to a document; and
(b) a
certificate is furnished to the Ombudsman under paragraph 9(3)(a), (c) or (d)
of the Ombudsman Act in relation to that investigation;
the certificate is not regarded as affecting the
Ombudsman’s right to seek from any person the reasons for any decision made
under this Act that the document is an exempt document or to require any person
to furnish any information or to answer any questions concerning the decision.
(6) The Ombudsman must not, in a report under
section 15 of the Ombudsman Act, recommend that an amendment be made to a
record if he or she is satisfied that:
(a) the record is a record of a
decision, under an enactment, by a court, tribunal, authority or person; or
(b) the decision whether to amend the
document involves determination of a question that the person seeking amendment
of the record is, or has been, entitled to have determined by a court or
tribunal; or
(c) the amendment relates to a record
of an opinion to which neither of the following applies:
(i) the opinion was based
on a mistake of fact;
(ii) the author of the
opinion was biased, unqualified to form the opinion or acted improperly in
conducting the factual inquiries that led to the formation of the opinion.
(7) In this section:
(a) a reference to the taking of
action has the same meaning as it has for the purposes of the Ombudsman Act;
and
(b) action is regarded as having been
taken by an agency to which this section applies in the circumstances in which
it would be regarded as having been taken for the purposes of the Ombudsman
Act.
(8) In this
section:
agency to which this
section applies means an agency that is a prescribed authority within
the meaning of the Ombudsman Act.
Ombudsman Act means the Ombudsman Act 1976.
58
Powers of Tribunal
(1) Subject to this section, in proceedings
under this Part, the Tribunal has power, in addition to any other power, to
review any decision that has been made by an agency or Minister in respect of
the request and to decide any matter in relation to the request that, under
this Act, could have been or could be decided by an agency or Minister, and any
decision of the Tribunal under this section has the same effect as a decision
of the agency or Minister.
(2) Where, in proceedings under this Act, it
is established that a document is an exempt document, the Tribunal does not
have power to decide that access to the document, so far as it contains exempt
matter, is to be granted.
(3) Where there is in force in respect of a
document a certificate under section 33, 33A, 34, 35 or 36, the powers of
the Tribunal do not extend to reviewing the decision to give the certificate,
but the Tribunal, constituted in accordance with section 58B, may
determine such question in relation to that certificate as is provided for in
whichever of subsections (4), (5) and (5A) applies in relation to that
certificate.
(4) Where application is or has been 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, 33A, 34 or 35 and in respect of which
a certificate (other than a certificate of a kind referred to in subsection (5A))
is in force under that section, the Tribunal shall, if the applicant so requests,
determine the question whether there exist reasonable grounds for that claim.
(5) Where application is or has been 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 36 and in respect of which a certificate
is in force under that section, the Tribunal shall, in a case where it is
satisfied that the document is a document to which paragraph 36(1)(a) applies,
if the applicant so requests, determine the question whether there exist
reasonable grounds for the claim that the disclosure of the document would be
contrary to the public interest.
(5A) Where application is or has been 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 as described in the
request in respect of which a certificate is in force under subsection 33(4) or
33A(4), the Tribunal shall, if the applicant so requests, determine the
question whether there exist reasonable grounds for the claim that information
as to the existence or non‑existence of the document as so described
would, if contained in a document of an agency:
(a) in a case where the certificate
was given under subsection 33(4)—cause that document of an agency to be an
exempt document for a reason referred to in subsection 33(1); or
(b) in a case where the certificate
was given under subsection 33A(4):
(i) cause that document of
an agency to be an exempt document for a reason referred to in subsection
33A(1); and
(ii) not cause that
document of an agency to be a document containing matter the disclosure of
which under this Act would be, on balance, in the public interest.
(6) The powers of the Tribunal under this
section extend to matters relating to charges payable under this Act in
relation to a request.
(7) Where:
(a) application is or has been made to
the Administrative Appeals Tribunal for review of a decision refusing to grant
a person access to a document in accordance with a request; and
(b) the agency to which or the
Minister to whom the request was made:
(i) has given to the
applicant a notice under this Act of the decision, being a notice that does not
include a statement (in whatever terms expressed) to the effect that access to
the document is being refused for the reason that, by virtue of the operation
of subsection 12(2) or of that subsection as modified by regulations in
pursuance of subsection 12(3), the applicant is not entitled to access to that
document; or
(ii) informs
or has informed the Tribunal, either before or in the course of the proceeding
for the review of the decision, that the agency or the Minister, as the case
requires, does not intend, or does not any longer intend, to refuse access to
the document for the reason referred to in subparagraph (i);
then, for the purposes of the review by the Tribunal of
that decision, this Act has effect as if subsection 12(2), or that subsection
as so modified, as the case requires, had not been enacted.
58A
Proceedings upon exercise of powers under subsection 58(4), (5) or (5A)
(1) Where, in considering a question referred
to in subsection 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 or her, make a decision:
(a) to revoke the certificate; or
(b) not to revoke the certificate.
(2) Where a Minister makes a decision under subsection (1)
to revoke a certificate:
(a) any claim made in the certificate
is to be taken, for the purposes of this Act, to have been withdrawn; and
(b) in a case where the certificate
was given under subsection 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 subsection (1)
not to revoke a certificate, he or she 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; and
(c) on having caused a copy of the
notice to be laid in the House in which the Minister sits, read the notice to
the House.
(4) A notice under subsection (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 subsection (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 subsection (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 subsection 33, 33A, 34, 35 or 36 may not be
revoked otherwise than in pursuance of a decision under subsection (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.
58B
Constitution of Tribunal for purposes of proceedings under subsection 58(4),
(5) or (5A)
(1) Where a request is made to the Tribunal
in accordance with subsection 58(4), (5) or (5A), the Tribunal shall be
constituted in accordance with subsection (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 subsection (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 subsection (1), section 21A of the Administrative
Appeals Tribunal Act 1975 applies as if:
(a) subsection (1) of that
section were omitted and the following subsection substituted:
“(1) At any time during the
hearing of a proceeding before the Tribunal constituted in accordance with
subsection 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) subsection (3) of that
section were omitted and the following subsection substituted:
“(3) 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 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 subsection (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;”.
58C
Hearing of certain proceedings before the Tribunal
(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 subsection 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
subsection 7(1) or the person referred to in that subsection;
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 subsection
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 subsection 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 subsection 33(4)—cause that document
of an agency to be an exempt document for a reason referred to in subsection
33(1); or
(B) in a
case where the certificate was given under subsection 33A(4)—cause subsection (2A)
to apply to that document of an agency; and
(b) subject to subsection (4),
shall hold the hearing of any other part of the proceeding in public.
(2A) For the purpose of sub‑subparagraph 58C(2)(a)(vi)(B),
this subsection applies to a document of an agency if the information (as
mentioned in subparagraph 58C(2)(a)(vi)) would:
(a) cause that document of an agency
to be an exempt document for a reason referred to in subsection 33A(1); and
(b) not cause that document of an
agency to be a document containing matter the disclosure of which under this
Act would be, on balance, in the public interest.
(3) Where the hearing of any part of a
proceeding is held in private in accordance with subsection (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 subsection 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 subsection, 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 subsection (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 subparagraph (2)(a)(i), (ii) or (iii) from
disclosing, in the course of the performance of his or her duties, any matter
to any other person.
58D
Modification of section 42 of the Administrative Appeals Tribunal Act
1975
In its application to a proceeding
referred to in subsection 58B(1) of this Act, section 42 of the Administrative
Appeals Tribunal Act 1975 applies as if subsection (3) of that section
were omitted and the following subsection substituted:
“(3) A question of law arising in a
proceeding before the Tribunal constituted in accordance with subsection 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.”.
58E
Production to the Tribunal of documents in relation to which a certificate has
been issued
(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 subsection 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 or her duties as a member
of that staff, to have access to the document or disclosing the contents of the
document to any such person.
58F
Review of certain decisions in respect of documents relating to the Government
of a State
(1) Where:
(a) arrangements of the kind referred
to in section 26A have been entered into between the Commonwealth and a
State; and
(b) on
a request having been made for access to a document that relates to the State
in a way mentioned in paragraph 26A(1)(a), an agency or Minister decides that
the document to which the request relates, or an edited copy of the document,
is not an exempt document under section 33A;
the State may apply to the Tribunal for a review of the
decision.
(2) Where an application is made in
accordance with subsection (1):
(a) the provisions of this Part (other
than section 55) 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.
(2A) In spite of
section 29 of the Administrative Appeals Tribunal Act 1975, an
application under subsection (1) must be made within 30 days after the day
on which notice of the decision was given to the State.
(3) Where:
(a) arrangements of the kind referred
to in section 26A have been entered into between the Commonwealth and a
State; and
(b) on a request having been made for
access to a document that relates to the State in a way mentioned in paragraph 26A(1)(a),
an agency or Minister decides not to grant access to the document to which the
request relates; and
(c) an
application is made to the Tribunal for a review of the decision;
the agency or Minister must, as soon as practicable,
inform the State of the application.
59
Review of certain decisions in respect of documents relating to business
affairs etc.
(1) Where, on a request having been made for
access to a document containing information concerning:
(a) a person’s business or
professional affairs; or
(b) the
business, commercial or financial affairs of an organisation or undertaking;
an agency or Minister decides that the document to which
the request relates, or an edited copy of the document, is not an exempt
document under section 43, the person or organisation, or the proprietor
of the undertaking, may apply to the Tribunal for a review of the decision.
(2) Where an application is made in
accordance with subsection (1):
(a) the provisions of this Part (other
than section 55) 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.
(2A) In spite of
section 29 of the Administrative Appeals Tribunal Act 1975, an
application by a person, organisation or proprietor under subsection (1)
must be made within 30 days after the day on which notice of the decision was
given to the person, organisation or proprietor, as the case may be.
(3) Where:
(a) on a request having been made for
access to a document containing information concerning:
(i) a person’s business or
professional affairs; or
(ii) the
business, commercial or financial affairs of an organisation or undertaking;
an agency or Minister decides
not to grant access to the document; and
(b) an
application is made to the Tribunal for a review of the decision;
the agency or Minister must, as soon as practicable, take
all reasonable steps to inform the person or organisation, or the proprietor of
the undertaking, of the application.
59A
Review of certain decisions in respect of documents containing personal
information
(1) Where, on a request having been made for
access to a document containing personal information about a person (including
a deceased person), an agency or Minister decides that the document to which
the request relates, or an edited copy of the document, is not an exempt
document under section 41, the person, or, if the person is deceased, the
legal personal representative of the person, may apply to the Tribunal for a
review of the decision.
(2) Where an application is made in
accordance with subsection (1):
(a) the provisions of this Part (other
than section 55) 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.
(2A) In spite of section 29 of the Administrative
Appeals Tribunal Act 1975, an application by a person under subsection (1)
must be made within 30 days after the day on which notice of the decision was
given to the person.
(3) Where:
(a) on a request having been made for
access to a document containing personal information about a person (including
a deceased person), an agency or Minister decides not to grant access to the
document; and
(b) an
application is made to the Tribunal for a review of the decision;
the agency or Minister must, as soon as practicable, take
all reasonable steps to inform the person, or, if the person is deceased, the
legal personal representative of the person, of the application.
60
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) a decision given by a person on
behalf of an agency shall be deemed to have been given by the agency;
(b) in proceedings by virtue of
section 56, the agency or Minister to which or to whom the request was
made shall be a party to the proceedings; and
(c) in proceedings for the
determination of a question referred to in subsection 58(4), (5) or (5A) in
relation to a document, the Minister who is the appropriate Minister for the
purposes of section 58A in respect of that document shall, upon
application to the Tribunal, be entitled to be a party to the proceedings.
61
Onus
(1) Subject to subsection (2), in
proceedings under this Part, the agency or Minister to which or to whom the
request was made has the onus of establishing that a decision given in respect
of the request was justified or that the Tribunal should give a decision
adverse to the applicant.
(2) In proceedings under section 58F, 59
or 59A, the party to the proceedings that opposes access being given to a
document in accordance with a request has the onus of establishing that a
decision refusing the request is justified or that the Tribunal should give a
decision adverse to the applicant.
62
Application of section 28 of Administrative Appeals Tribunal Act etc.
(1) Where, in relation to a decision in
respect of a request, the applicant has been given a notice in writing under
section 26, section 28 of the Administrative Appeals Tribunal Act
1975 does not apply to that decision.
(2) If the Tribunal, upon application for a
declaration under this subsection made to it by a person to whom a notice has
been furnished in pursuance of subsection 26(1), considers that the notice does
not contain adequate particulars of findings on material questions of fact, an
adequate reference to the evidence or other material on which those findings
were based or adequate particulars of the reasons for the decision, the
Tribunal may make a declaration accordingly, and, where the Tribunal makes such
a declaration, the person responsible for furnishing the notice shall, as soon
as practicable but in any case within 28 days after the Tribunal makes the
declaration, furnish to the applicant an additional notice or additional
notices containing further and better particulars in relation to matters
specified in the declaration with respect to those findings, that evidence or
other material or those reasons.
63
Tribunal to ensure non‑disclosure of certain matters
(1) In proceedings under this Part, the
Tribunal shall make such order or orders under subsection 35(2) of the Administrative
Appeals Tribunal Act 1975 as it thinks necessary having regard to the
nature of the proceedings and, in particular, to the necessity of avoiding the
disclosure to the applicant of:
(a) exempt matter contained in a
document to which the proceedings relate; or
(b) information of the kind referred
to in subsection 25(1).
(2) Notwithstanding anything contained in the
Administrative Appeals Tribunal Act 1975:
(a) the Tribunal shall not, in its
decision, or reasons for a decision, in a matter arising under this Act,
include any matter or information of a kind referred to in subsection (1);
and
(b) the Tribunal may receive evidence,
or hear argument, in the absence of the applicant or his or her representative
where it is necessary to do so in order to prevent the disclosure to the
applicant of matter or information of a kind referred to in subsection (1).
64
Production of exempt documents
(1) Where there are proceedings before the
Tribunal under this Act in relation to a document that is claimed to be an
exempt document, section 37 of the Administrative Appeals Tribunal Act
1975 does not apply in relation to the document but the Tribunal, for the
purpose of deciding whether the document is an exempt document, may require the
document to be produced for inspection by members of the Tribunal only and if,
upon the inspection, the Tribunal is satisfied that the document is an exempt
document, the Tribunal shall return the document to the person by whom it was
produced without permitting any person other than 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 or her duties as a member of
that staff, to have access to the document or disclosing the contents of the
document to any such person.
(1A) If, for the purposes of proceedings before
the Tribunal under this Act in relation to a document that is claimed to be an
exempt document, the document is voluntarily produced to the Tribunal, then
only:
(a) the members of the Tribunal as
constituted for the purposes of the review; 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;
may inspect, or have access to, the document.
(2) The Tribunal may require the production,
for inspection by members of the Tribunal only, of an exempt document for the
purpose of determining whether it is practicable for an agency or a Minister to
grant access to a copy of the document with such deletions as to make the copy
not an exempt document and, where an exempt document is produced by reason of
such a requirement, the Tribunal shall, after inspection of the document by the
members of the Tribunal as constituted for the purposes of the proceeding,
return the document to the person by whom it was produced without permitting
any person other than such a member of the Tribunal, or 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, to have access to the document or disclosing the contents
of the document to any such person.
(3) Notwithstanding subsections (1) and
(2), but subject to subsection (4), the Tribunal is not empowered, in any
proceedings other than proceedings to determine a question referred to in
subsection 58(4), (5) or (5A), to require:
(a) the production of a document in
respect of which there is in force a certificate under section 33, 33A,
34, 35 or 36; or
(b) the giving of information in
respect of which a certificate is in force under subsection 33(4) or 33A(4).
(4) Where a certificate of a kind referred to
in paragraph (3)(a) identifies a part or parts of the document concerned
in the manner provided in subsection 33(3), 34(3), 35(3) or 36(4), subsection (3)
does not prevent the Tribunal from requiring the production, in any proceedings
before the Tribunal under this Act in relation to the document, of a copy of so
much of the document as is not included in the part or parts so identified.
(4A) In making an order for the purposes of subsection (1),
(2) or (4), the Tribunal may require the relevant document to be produced at
any time later than 28 days after the decision‑maker was given notice of
the application, even if that time is before the Tribunal has begun to hear
argument or otherwise deal with the matter.
(5) Subsections (1), (1A) and (2) apply
in relation to a document in the possession of a Minister that is claimed by
the Minister not to be an official document of the Minister as if references in
those subsections to an exempt document were references to a document in the
possession of a Minister that is not an official document of the Minister.
(6) Subsection (1),
(1A) or (2) does not operate so as to prevent the Tribunal from causing a
document produced in accordance with that subsection to be sent to the Federal
Court of Australia in accordance with section 46 of the Administrative
Appeals Tribunal Act 1975, but, where such a document is so sent to the
Court, the Court shall do all things necessary to ensure that the contents of
the document are not disclosed (otherwise than in accordance with this Act) to
any person other than a member of the Court as constituted for the purpose of
the proceeding before the Court or a member of the staff of the Court in the
course of the performance of his or her duties as a member of that staff.
(7) Subsection (6) does not prevent the
Federal Court of Australia from causing the document concerned to be sent to
the Federal Magistrates Court as mentioned in subparagraph 46(1)(c)(i) of the Administrative
Appeals Tribunal Act 1975.
(8) If a document produced in accordance with
subsection (1), (1A) or (2) is sent to the Federal Magistrates Court as
mentioned in subparagraph 46(1)(c)(i) of the Administrative Appeals Tribunal
Act 1975, the Federal Magistrates Court must do all things necessary to
ensure that the contents of the document are not disclosed (otherwise than in
accordance with this Act) to any person other than:
(a) the Federal Magistrate who
constitutes the Federal Magistrates Court for the purposes of the proceeding
before the Federal Magistrates Court; or
(b) a member of the staff of the
Federal Magistrates Court in the course of the performance of his or her duties
as a member of that staff.
65
Evidence of certificates
In proceedings before the Tribunal under
this Part, evidence of a certificate under section 33, 33A, 34, 35 or 36,
including evidence of the identity or nature of a document to which the
certificate relates, may be given by affidavit or otherwise and such evidence
is admissible without production of the certificate or of a document to which
it relates.
66
Tribunal may make recommendation that costs be available in certain
circumstances
(1) Where:
(a) a person makes application to the
Tribunal under section 55 for review of a decision constituting the action
to which the complaint relates; and
(b) the
person is successful, or substantially successful, in his or her application
for review;
the Tribunal may, in its discretion, recommend to the
Attorney‑General that the costs of the applicant in relation to the
proceedings be paid by the Commonwealth.
(2) Without limiting the generality of the
matters to which the Tribunal may have regard in deciding whether to make a
recommendation under subsection (1), the Tribunal shall have regard to:
(a) the question whether payment of
the costs or any part of the costs would cause financial hardship to the
applicant;
(b) the question whether the decision
of the Tribunal on review will be of benefit to the general public;
(c) the question whether the decision
of the Tribunal on review will be of commercial benefit to the person making
application to the Tribunal; and
(d) the reasonableness of the decision
reviewed by the Tribunal.
(3) The Attorney‑General may, pursuant
to a recommendation of the Tribunal under subsection (1), authorize the
payment of costs to an applicant.
Part VIII—Miscellaneous
91
Protection against certain actions
(1) Where access has been given to a document
and:
(a) the access was required by this
Act to be given or would, but for the operation of subsection 12(2) or of that
subsection as modified by regulations made in pursuance of subsection 12(3),
have been so required to be given; or
(b) the
access was authorized by a Minister, or by an officer having authority, in
accordance with section 23 or 54, to make decisions in respect of
requests, in the bona fide belief that the access was required by this
Act to be given;
no action for defamation, breach of confidence or
infringement of copyright lies against the Commonwealth, an agency, a Minister
or an officer by reason of the authorizing or giving of the access, and no
action for defamation or breach of confidence in respect of any publication
involved in, or resulting from, the giving of the access lies against the
author of the document or any other person by reason of that author or other
person having supplied the document to an agency or Minister.
(1A) Subsection (1) applies in relation to
the giving of access to a document even if, in giving access, there has been a
failure to comply with section 26A, 27 or 27A.
(1B) No action lies against the Commonwealth, an
agency, a Minister or an officer merely because of a failure to comply with
section 26A, 27 or 27A in relation to giving access to a document.
(1C) If a document has been shown to a person,
organisation or proprietor for any of the following purposes:
(a) consultation with a State under
subsection 26A(1);
(b) enabling the person, organisation
or proprietor to make a submission under subsection 27(1);
(c) enabling
the person or the person’s legal personal representative to make a submission
under subsection 27A(1);
then:
(d) no action for defamation, breach
of confidence or infringement of copyright lies against the Commonwealth, an
agency, a Minister or an officer because of the showing of the document; and
(e) no action for defamation or breach
of confidence in respect of any publication involved in, or resulting from, the
showing of the document lies against the author of the document or any other
person because of that author or other person having shown the document.
(2) The giving of access to a document
(including an exempt document) in consequence of a request shall not be taken
to constitute an authorization or approval:
(a) for the purposes of the law
relating to defamation or breach of confidence—of the publication of the
document or its contents by the person to whom access is given;
(b) for the purposes of the law of
copyright—of the doing, by the person to whom access is given, of any act
comprised within the copyright in:
(i) any literary,
dramatic, musical or artistic work;
(ii) any sound recording,
cinematograph film, television broadcast or sound broadcast; or
(iii) a
published edition of a literary, dramatic, musical or artistic work;
contained in the document.
(2A) If a document has been shown to a person,
organisation or proprietor for any of the following purposes:
(a) consultation with a State under
subsection 26A(1);
(b) enabling the person, organisation
or proprietor to make a submission under subsection 27(1);
(c) enabling
the person or the person’s legal personal representative to make a submission
under subsection 27A(1);
the showing of the document is not taken to constitute an
authorisation or approval:
(d) for the purposes of the law
relating to defamation or breach of confidence—of the publication of the
document or its contents by the person, organisation or proprietor to whom the
document is shown; and
(e) for the purposes of the law of
copyright—of the doing, by the person, organisation or proprietor to whom the
document is shown, of any act comprised within the copyright in:
(i) any literary,
dramatic, musical or artistic work; or
(ii) any sound recording,
cinematograph film, television broadcast or sound broadcast; or
(iii) a
published edition of a literary, dramatic, musical or artistic work;
contained in the document.
(3) Expressions used in paragraph (2)(b)
or (2A)(e) have the same meaning as in the Copyright Act 1968.
92
Protection in respect of offences
(1) Where access has been given to a document
and:
(a) the access was required by this
Act to be given or would, but for the operation of subsection 12(2) or of that
subsection as modified by regulations made in pursuance of subsection 12(3),
have been so required to be given; or
(b) the
access was authorized by a Minister, or by an officer having authority, in
accordance with section 23 or 54, to make decisions in respect of
requests, in the bona fide belief that the access was required by this
Act to be given;
neither the person authorizing the access nor any person
concerned in the giving of the access is guilty of a criminal offence by reason
only of the authorizing or giving of the access.
(2) If a document has been shown to a person,
organisation or proprietor for any of the following purposes:
(a) consultation with a State under
subsection 26A(1); or
(b) enabling the person, organisation
or proprietor to make a submission under subsection 27(1); or
(c) enabling
the person or the person’s legal personal representative to make a submission
under subsection 27A(1);
neither the person showing the document nor any person
concerned in showing it is guilty of a criminal offence only because of the
showing of the document.
92A
Notices etc. may be given by post
(1) This section applies if a notice or other
document is required or permitted to be given to a person under this Act (whether
the expression give, or any other expression, is used).
(2) The notice or document may be given by
post.
93
Reports to Parliament
(1) The Minister shall:
(a) as soon as practicable after 30 June
in each year (but, in respect of 30 June 1985 or any subsequent 30 June,
not later than 31 October next following that 30 June) prepare a
report on the operation of this Act during the year that ended on that 30 June;
and
(b) cause that report to be laid
before each House of the Parliament within 15 sitting days of that House after
the preparation of that report is completed.
(2) Each agency shall, in relation to the
agency, and each Minister shall, in relation to his or her official documents,
furnish to the Minister administering this Act such information as he or she
requires for the purposes of the preparation of reports under this section and
shall comply with any prescribed requirements concerning the furnishing of that
information and the keeping of records for the purposes of this section.
(3) Without limiting the generality of subsection (1)
or the kinds of information which an agency or a Minister might be required, in
pursuance of subsection (2), to furnish to the Minister administering this
Act, a report of the Minister administering this Act shall set out:
(a) particulars of the operations of
each agency and Minister under this Act during the year to which the report
relates, including, in relation to each agency and Minister:
(i) the number of requests
under section 15 for access to documents received during the year;
(ii) the number of requests
received at any time in respect of which during the year:
(A) access
other than partial access was granted to the document or all of the documents
to which the request related;
(B) access
was refused to the document or all of the documents to which the request
related; or
(C) partial
access was granted;
(iii) the number of
applications made during the year for the review of decisions under section 54
and particulars of the results of such reviews;
(iv) the number of
applications made during the year to the Tribunal for the review of decisions
and particulars of the results of such reviews;
(v) particulars of the
total charges and application fees collected during the year in dealing with
requests and other applications whenever received; and
(vi) the number of requests
received during the year to amend records under section 48 and particulars
of the results of such requests;
(b) an identification of the
guidelines, if any, issued during the year to which the report relates by the
Minister administering this Act, or by the Department administered by that
Minister, in relation to the manner in which agencies should comply with their
obligations under this Act; and
(c) a description of any other efforts
by the Department referred to in paragraph (b) to assist agencies to
comply with their obligations under this Act.
(3A) For the purposes of subparagraph (3)(a)(ii),
partial access shall be taken to have been granted in respect of a request if
either or both of the following conditions are satisfied in relation to the
request:
(a) access was granted to a copy of
the document or of any of the documents to which the request related with
deletions;
(b) the request related to 2 or more
documents and access was refused to any one or more of the documents.
(4) The first report by the Minister under subsection (1)
shall include particulars of the extent to which the responsible Minister of
each agency, and each agency, has, respectively, complied with sections 8
and 9 of this Act.
94
Regulations
(1) The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters that are
required or permitted by this Act to be prescribed, or are necessary or
convenient to be prescribed for carrying out or giving effect to this Act, and,
in particular, making provision for or in relation to:
(a) the making of charges of amounts,
or at rates, fixed by or in accordance with the regulations in respect of
requests for access to documents or in respect of the provision of access to
documents (including the provision of copies or transcripts) in accordance with
this Act, including requiring deposits on account of such charges; and
(b) the officers who may give
decisions on behalf of an agency.
(2) Without limiting the generality of subsection (1),
regulations under that subsection making provision for or in relation to the
making of charges:
(a) shall not be such that the amount
or rate of charge varies according to whether the applicant is included in one
class of applicant or another class of applicant or according to whether a
document is a document of one agency or of an agency included in one class of
agency or is a document of another agency or of an agency included in another
class of agency;
(b) shall, if a charge is made for
time that is spent by an agency or a Minister in undertaking any of the
following activities:
(i) searching for or
retrieving a document;
(ii) making,
or doing things related to making, a decision on a request for access;
provide for the charge in
respect of that activity to be calculated at a single hourly rate that shall be
applied by the agency or Minister in respect of any request, regardless of the
classification or designation of the officer who undertakes the work involved;
and
(d) may provide for a charge to be
made that takes into account the direct costs incurred by an agency or a
Minister in making available an officer to supervise the inspection by a person
of any document for which a request for access has been made under this Act.
(3) Where, as a result of a request, access
is given to a document in respect of which the applicant would not be entitled
to access under this Act, regulations under this Act relating to charges apply
as if the applicant had been given access to that document in accordance with
an entitlement under this Act.