Senate

Explanatory Memorandum

Circulated By Authority of the Cabinet Secretary, Senator the Hon John Faulkner

Schedule 1 - amendments to the FOI Act

Item 1- subsection 4(1) (paragraph (b) of the definition of exempt document)

This item amends the definition of exempt document in the FOI Act so that it consistently identifies all of the entities addressed in section 7 of the Act. Currently, the definition only mentions an agency as being exempt under section 7. It should also mention persons or bodies, as these are also the subject of exemptions under that section. This item is not related to the removal of conclusive certificates and addresses a cross-reference omission.

Item 2 - after subsection 7(2A)

The purpose of this item is to provide for consistency in the application of the FOI Act to a document of an intelligence agency or the IGIS, which are agencies that are excluded from the operation of the Act. This item makes a document in the possession of a Minister exempt from the FOI Act where it has originated with, or been received from, the listed intelligence agencies and the IGIS. This amendment rectifies an anomaly in the FOI Act, insofar as such documents are currently exempt when in the possession of an agency but are not exempt when in the possession of a Minister.

Item 3 - subsection 12(3)

Item 3 is a minor editorial amendment.

Item 4 - subsection 33(1)

Item 4 is a re-numbering provision which arises as a consequence of the repeals addressed by item 5.

Item 5 - subsections 33(2) to (7)

This item repeals subsections 33(2) to (7) which are provisions related to the power to issue a conclusive certificate.

Item 6 - subsections 33A(2) to (4A)

Item 6 repeals subsections 33A(2) to (4A) which are provisions related to the power to issue a conclusive certificate.

Item 7 - subsections 33A(6) to (8)

Item 7 repeals subsections 33A(6) to (8) which are provisions related to the power to issue a conclusive certificate.

Item 8 - subsections 34(2) to (5)

Item 8 repeals subsections 34(2) to (5) which are provisions related to the power to issue a conclusive.

Item 9 - subsections 35(2) to (5)

Item 9 repeals subsections 35(2) to (5) which are provisions related to the power to issue a conclusive certificate.

Item 10 - subsections 36(3), (4), (8), (9) and (10)

Item 10 repeals subsections 36(3), (4), (8), (9) and (10) which are provisions related to the power to issue a conclusive certificate.

Item 11 - section 36A

This item repeals section 36A which is a provision related to the power to issue a conclusive certificate.

Item 12 - section 53

Item 12 repeals only that part of section 53 which is an interpretative provision related to the power to issue conclusive certificates.

Item 13 - subsections 58(3) to (5A)

This item repeals subsections 58(3) to (5A) which are provisions related to the power to issue a conclusive certificate. The effect of the repeal of these subsections will be that the AAT will be able to undertake full merits review of all exemption claims in accordance with subsection 58(1).

Item 14 - section 58A

Item 14 repeals section 58A, which is a conclusive certificate related provision.

Item 15 - subsection 58B(1)

Item 15 repeals subsection 58B(1) which is a conclusive certificate related provision, and substitutes a new special constitution requirement for the AAT. The requirement will apply to an application to the AAT for review of a decision to refuse access to a document on grounds of a Cabinet exemption (section 34), or a national security, defence or international relations exemption or a confidential foreign government communication exemption (subsection 33(1)). The effect of this proposed amendment will be that presidential members of the AAT will hear a review application relating to those exemption decisions. A presidential member means the President, Deputy President or member who is a Judge. In light of the special sensitivity of Cabinet and national security-related information, it is intended that the most senior members of the AAT preside at these hearings.

Item 16 - section 58C

Item 16 repeals section 58C which is a conclusive certificate related provision.

Item 17 - section 58E

Item 17 repeals section 58E which is a conclusive certificate related provision, and substitutes a new provision dealing with the AAT's power to require the production of a document the subject of a national security, defence or international relations exemption or a confidential foreign government communication exemption (subsection 33(1)) or the Cabinet exemption (section 34). It is intended that the AAT exercise its discretion to call for the production of these types of exempt documents if it is not satisfied on affidavit evidence or otherwise that the document is exempt. The purpose of the amendment is to protect against the unnecessary disclosure of sensitive information.

Item 18 - at the end of subsection 59(3)

Item 18 inserts a qualification to the notification requirement imposed upon an agency or Minister in subsection 59(3). That provision is part of a broader regime in the FOI Act to give certain rights to third parties where a request is made for access to a document containing information about the third party's business affairs. The proposed amendment will give the AAT discretion to order that an agency or Minister does not need to give notice to the third party of an AAT review application if it would not be appropriate to do so in the circumstances. An example of when it may not be appropriate to give notice would be where a document includes information about a person under criminal investigation. An agency or Minister will need to apply to the AAT for an order to be excused from the requirement to give notice. Item 19 sets out the matters that the AAT must take into account for the purposes of determining whether to make such an order.

Item 19 - at the end of section 59

Item 19 is related to the amendment proposed at item 18. It sets out the matters that the AAT must have regard to for the purposes of determining whether it would not be appropriate to inform a third party of an application made to the AAT for review of a decision to refuse access to documents containing information about the third party's business, professional or financial affairs.

Item 20 - at the end of subsection 59A(3)

This item inserts a qualification to the notification requirement imposed upon an agency or Minister in subsection 59A(3). That provision is part of a broader regime in the FOI Act to give certain rights to third parties where a request is made for access to a document containing personal information about the third party. The proposed amendment will give the AAT discretion to order that an agency or Minister does not need to give notice to the third party of an AAT review application if it would not be appropriate to do so in the circumstances. An example of when it may not be appropriate to give notice would be where a document includes information about a person under criminal investigation. An agency will need to apply to the AAT for an order. Item 21 sets out the matters that the AAT must take into account for the purposes of determining whether to make an order not to give notice to a third party.

Item 21 - at the end of section 59A

Item 21 is related to the amendment proposed at item 20. It sets out the matters that the AAT must have regard to for the purposes of determining whether it would not be appropriate to inform a third party of an application made to the AAT for review of a decision to refuse access to documents containing personal information about them.

Items 22 - 24

Item 24 repeals paragraph 60(c) which is a conclusive certificate related provision. Items 22 and 23 are minor editorial changes that arise as a consequence of the repeal of paragraph 60(c).

Item 25 - after section 60

This item inserts a new procedural requirement in the conduct of proceedings in the AAT involving review of a national security, defence or international relations exemption or a confidential foreign government communication exemption (subsection 33(1)). Before making a determination that a document is not exempt, the AAT will be required to request the IGIS to give evidence as to the damage that could result from its disclosure. If the AAT is satisfied that the exemption claim should be upheld on other evidence, it is intended that the AAT will not seek evidence from the IGIS.

The purpose of this proposed amendment is to assist the AAT through the provision of expert advice, which would be independent to an agency's submissions in support of its decision to claim an exemption. However, proposed subsection 60A(8) makes it clear that the AAT is not bound by any opinion expressed by the IGIS upon giving evidence. This measure is not intended to affect the ability of agencies to give evidence before the AAT on the harm that could result from the disclosure of the documents. Subsection 60A(4), makes it clear that the IGIS could only be called to give evidence after the relevant agency or Minister has given evidence or made submissions.

Proposed subsection 60A(5) requires the IGIS to give evidence if requested, unless in the IGIS's view he or she is not qualified to give expert evidence. That could arise for example where the claim is that disclosure of the document could cause damage to the international relations of the Commonwealth in a matter that is not related to the IGIS's intelligence and security oversight functions.

Proposed subsection 60A(6) enables the IGIS to have access to documents so that the IGIS may properly inform himself or herself with a view to giving evidence. The IGIS could give evidence by telephone or other means of communication if permitted by the AAT consistent with section 35A of the AAT Act.

Item 26 - subsection 63(1)

This item repeals subsection 63(1) and substitutes a similar provision with a new direction relating to documents the subject of an exemption claim under section 33. Like existing subsection 63(1), the intention of this provision is to direct the AAT to the necessity of avoiding disclosure of exempt material to the applicant. Under subsection 35(2) of the AAT Act, the AAT has discretionary power to make confidentiality orders including to direct that a hearing be held in private, or to restrict the disclosure of evidence to a party to the proceeding. Proposed paragraph 63(1)(b) inserts a new direction where the proceedings relate to a document that is claimed to be exempt under section 33. The intention of this provision is to give direction to the AAT that it should be particularly open to considering submissions that it should exercise its discretion to make confidentiality orders for documents of this kind.

Item 27 - paragraphs 63(2)(a) and (b)

Item 27 is a renumbering provision which arises as a consequence of the proposed amendment at item 26.

Item 28 - subsection 64(1)

This item repeals subsection 64(1) and substitutes a similar subsection that is extended to take into account the proposed new role for the IGIS addressed at item 25.

Item 29 - subsection 64(2)

Item 29 amends subsection 64(2) to take into account the proposed new role for the IGIS addressed at item 25.

Item 30 - subsections 64(3) and (4)

This item repeals subsections 64(3) and 64(4) which are certificate related provisions.

Item 31 - subsection 64(4A)

This item is a re-numbering provision which arises as a consequence of the proposed repeal of subsection 64(4) addressed by item 30.

Item 32 - section 65

Item 32 repeals section 65 which is a conclusive certificate related provision.

Item 33 - at the end of Part VI

Item 33 inserts section 67, which provides for the automatic stay of an AAT decision to give access to a document where an agency or Minister institutes an appeal in the Federal Court against that decision. Subsection 44A(1) of the AAT Act provides that the institution of an appeal does not affect the operation of the AAT decision or prevent action to implement the decision. The purpose of item 33 is to make clear that an applicant cannot seek to compel disclosure of a document where an appeal to the Federal Court has been instituted. Giving access to the document would render any appeal redundant. However, it is intended that an agency or Minister could still give access to the document if electing to do so. The stay would cease to have effect until the earlier of either the time when the Federal Court makes a decision on the appeal application or such other time determined by the Court. Equivalent provision is made where an appeal is transferred from the Federal Court to the Federal Magistrates Court.

Item 34 - application provision - items 4 to 32

Subitem 34(2) deals with the treatment of conclusive certificates that remain in force at the commencement of this Bill. The manner in which existing certificates are proposed to be dealt with is consistent with the notion that access to a document under the FOI Act is tied to an application. Existing certificates will be revoked on and from the time the first request for access to a document covered by the certificate is made. If a certificate covers more than one document, and access is not sought to all documents, it is intended that the certificate will continue to have effect in relation to those documents not subject to the access request.

Subitem 34(3)(b) confirms that a person can make a new request for a document covered by a certificate after the commencement of Schedule 1 notwithstanding that a prior request was refused in reliance on a certificate.

Item 35 - application provision - item 33

Item 33, which introduces an automatic stay on certain AAT decisions if an appeal to the Federal Court has been instituted, applies to an AAT decision made on or after the commencement of Schedule 1.