Freedom of Information Amendment Act

1991

No. 137 of 1991

TABLE OF PROVISIONS

TABLE OF PROVISIONS—continued

Freedom of Information Amendment Act

1991

No. 137 of 1991

An Act to amend the Freedom of Information Act 1982, and for related purposes

[Assented to 27 September 1991]

[Date of commencement 25 October 1991]

The Parliament of Australia enacts:

Short title etc.

1.  (1) This Act may be cited as the Freedom of Information Amendment Act 1991.

(2) In this Act, “Principal Act” means the Freedom of Information Act 1982¹.

Object

2.  Section 3 of the Principal Act is amended by adding at the end of subsection (1) the following word and paragraph:

“; and (c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.”.

Interpretation

3. Section 4 of the Principal Act is amended:

(a)    by inserting “or an Order-in-Council” after “an enactment” (wherever occurring) in the definition of “prescribed authority” in subsection (1);

(b)    by inserting in paragraphs (b) and (c) of the definition of “responsible Minister” in subsection (1) “the part of after “administering”;

(c)     by omitting from subsection (1) the definition of “document” and substituting the following definition:

“ ‘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 library material maintained for reference purposes;”;

(d)  by inserting in subsection (1) the following definitions:

“ ‘edited copy’, in relation to a document, means a copy of the document from which deletions have been made under section 22;

‘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;”;

(e)  by adding at the end the following subsection:

“(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.”.

Exemption of certain bodies

4.  Section 7 of the Principal Act is amended:

(a)     by omitting from subsection (1) “the person holding and performing the duties of the office” and substituting “a person holding and performing the duties of an office”;

(b)     by omitting subsection (3) and substituting the following subsection:

“(3) In 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.”.

Certain documents to be available for inspection and purchase

5.  Section 9 of the Principal Act is amended by inserting in subsection (4) “, 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,” after “principal officer of the agency”.

Unpublished documents not to prejudice public

6.  Section 10 of the Principal Act is amended:

(a)    by omitting from subsection (1) “in the Gazette” and substituting “made available at each Information Access Office”;

(b)    by adding at the end the following subsection:

“(3) In subsection (1):

‘Information Access Office’ means a place that is an Information Access Office for the purposes of section 28.”.

Right of access

7.  Section 11 of the Principal Act is amended by adding at the end the following subsection:

“(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.”.

Part not to apply to certain documents

8.  Section 12 of the Principal Act is amended:

(a) by omitting from paragraph (1) (a) all the words after “contains”

and substituting “personal information (including personal information about a deceased person)”;

(b) by omitting paragraph (2) (a) and substituting the following paragraph:

“(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”.

Requests for access

9. Section 15 of the Principal Act is amended:

(a)  by omitting subsections (1) and (2) and substituting the following subsections:

“(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.”;

(b)  by adding at the end the following subsections:

“(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.”.

10.  After section 15 of the Principal Act the following section is inserted:

Request for access to personnel records

“15a. (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.”.

Transfer of requests

11.  Section 16 of the Principal Act is amended:

(a) by inserting after subsection (3) the following subsection:

“(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.”;

(b) by omitting subsection (5) and substituting the following subsection:

“(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.”.

Requests involving use of computers etc.

12.  Section 17 of the Principal Act is amended:

(a)    by inserting in paragraph (1) (b) “written” after “form in”;

(b)    by inserting after paragraph (1) (b) the following paragraph:

“(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”.

Repeal of section 19

13.  Section 19 of the Principal Act is repealed.

Deletion of exempt matter or irrelevant material

14.  Section 22 of the Principal Act is amended:

(a)  by omitting paragraphs (1) (a) and (b) and substituting the following paragraphs:

“(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”;

(b)  by omitting paragraph (2) (a) and substituting the following paragraph:

“(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”.

15. Section 24 of the Principal Act is repealed and the following sections are substituted:

Requests may be refused in certain cases

“24. (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.

Requests may be refused if documents cannot be found or do not exist

“24a. 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.”.

Procedure on request in respect of documents likely to affect Commonwealth-State relations

16.  Section 26a of the Principal Act is amended:

(a)    by inserting in subsection (1) “or an edited copy of the document” after “document” (last occurring);

(b)    by inserting in subsection (2) “or an edited copy of the document” after “document” (first occurring);

(c)     by inserting in subsection (2) “or edited copy” after “document” (second occurring);

(d)    by inserting in paragraph (2) (b) “or edited copy” after “document” (first, second and third occurring);

(e)     by inserting in subparagraph (2) (b) (i) “or edited copy” after “document” (first occurring);

(f)      by inserting in subparagraph (2) (b) (i) “(other than an application that has subsequently been withdrawn)” after “such an application”;

(g)    by inserting after subparagraph (2) (b) (i) the following subparagraph:

“(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”;

(h) by inserting in subparagraph (2) (b) (ii) “or edited copy” after “document” (first occurring);

(j) by adding at the end the following subsection:

“(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.”.

Procedure on request in respect of documents relating to business affairs etc.

17.  Section 27 of the Principal Act is amended:

(a) by omitting subsection (1) and substituting the following subsection:

“(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.”;

(b)    by omitting from subsection (2) “, so far as it contains the information referred to in paragraph (1) (a)” (twice occurring) and substituting “or edited copy, so far as it contains the information referred to in subsection (1)”;

(c)     by inserting in subparagraph (2) (b) (i) “(other than an application that has subsequently been withdrawn)” after “such an application”;

(d)    by inserting after subparagraph (2) (b) (i) the following subparagraph:

“(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”;

(e)  by adding at the end the following subsection:

“(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.”.

Procedure on request in respect of documents containing personal information

18. Section 27a of the Principal Act is amended:

(a) by omitting subsection (1) and substituting the following subsection:

“(1) Where a request is received by an agency or Minister in respect of a document containing personal information about a person (including a deceased person), 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.”;

(b)    by inserting in subsection (2) “or edited copy” after “document” (first occurring);

(c)     by inserting in paragraph (2) (b) “or edited copy” after “document”;

(d)    by inserting in subparagraph (2) (b) (i) “(other than an application that has subsequently been withdrawn)” after “such an application”;

(e)     by inserting after subparagraph (2) (b) (i) the following subparagraph:

“(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”;

(f)   by adding at the end the following subsection:

“(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.”.

19. Sections 29 and 30 of the Principal Act are repealed and the following section is substituted:

Charges

“29. (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 28 days after the day on which the applicant so notified the agency or Minister.

“(7) If:

(a)     that period of 28 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).”.

Remission of application fees

20.  Section 30a of the Principal Act is amended:

(a)     by omitting from paragraph (1) (b) “is satisfied that:” and substituting “considers that the fee or a part of the fee should be remitted for any reason, including either of the following reasons:”;

(b)     by omitting from subparagraph (1) (b) (i) “a part” and substituting “the part”;

(c)     by omitting subparagraph (1) (b) (ii);

(d)     by omitting from subsection (2) “15 (1)” and substituting “15 (2)”.

Certain periods to be disregarded for the purposes of processing requests

21.  Section 31 of the Principal Act is amended:

(a)     by omitting from subsection (1) “section 29” and substituting “subsection 29 (1) or (6)”;

(b)     by omitting from subsection (1) “period that is, for the purposes of section 19, the relevant period in relation to the request made by him” and substituting “period of 30 days mentioned in paragraph 15 (5) (b), or that period as extended under subsection 15 (6), in relation to that request”;

(c)     by omitting from subsection (1) “that relevant period” and substituting “that period”;

(d)     by omitting paragraphs (3) (a) and (b) and substituting the following paragraphs:

“(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”;

(e)    by omitting from paragraph (3) (c) “the decision referred to in section 29” (first occurring) and substituting “the decision to impose the payment of a charge”;

(f)     by omitting from paragraph (3) (c) “the decision referred to in section 29” (second and third occurring) and substituting “that decision”.

Documents affecting national security, defence or international relations

22. Section 33 of the Principal Act is amended:

(a)    by omitting from subsection (1) “would be contrary to the public interest for the reason that the disclosure”;

(b)    by omitting from subsection (2) “the disclosure under this Act of a document would be contrary to the public interest” and substituting “a document is an exempt document”;

(c)  by omitting from subsection (4) “the disclosure under this Act of the last-mentioned document to be contrary to the public interest” and substituting “the last-mentioned document to be exempt document under this section”.

Documents affecting relations with States

23.  Section 33a of the Principal Act is amended:

(a)  by omitting subsection (2) and substituting the following subsections:

“(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.”;

(b)  by omitting subsection (4) and substituting the following subsections:

“(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.”.

Cabinet documents

24.  Section 34 of the Principal Act is amended:

(a) by omitting subsection (2) and substituting the following subsection:

“(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.”;

(b) by omitting subsection (4) and substituting the following subsection:

“(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.”.

Executive Council documents

25. Section 35 of the Principal Act is amended:

(a) by omitting subsection (2) and substituting the following subsection:

“(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.”;

(b) by omitting subsection (4) and substituting the following subsection:

“(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.”.

26.  (1) After section 36 of the Principal Act the following section is inserted:

Periods for which certain certificates remain in force

“36a. (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.”.

Documents affecting enforcement of law and protection of public safety

27.  Section 37 of the Principal Act is amended by inserting in paragraph (1) (b) “, or the non-existence of a confidential source of information,” after “source of information”.

Documents to which secrecy provisions of enactments apply

28.  Section 38 of the Principal Act is amended:

(a) by omitting subsection (1) and substituting the following subsections:

“(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.”;

(b) by omitting from subsection (2) “information relating to the person’s personal affairs” and substituting “personal information about the person”.

Documents affecting personal privacy

29. (1) Section 41 of the Principal Act is amended:

(a)    by omitting from subsection (1) “information relating to the personal affairs of and substituting “personal information about”;

(b)    by omitting subsection (3) and substituting the following subsections:

“(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.”.

(2) The amendments made by this section apply to any documents in respect of which a request for access was or is made under this Act before or after the commencement of this section, other than a request that was finally disposed of before the commencement of this section.

Documents relating to business affairs etc.

30.  Section 43 of the Principal Act is amended by adding at the end the following subsection:

“(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.”.

31.  After section 43 of the Principal Act the following section is inserted:

Documents relating to research

“43a. (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.”.

Documents containing material obtained in confidence

32.    Section 45 of the Principal Act is amended by omitting from subsection (1) “constitute a” and substituting “found an action, by a person other than the Commonwealth, for”.

33.    Parts V and Va of the Principal Act are repealed and the following Part is substituted:

“PART V—AMENDMENT AND ANNOTATION OF PERSONAL RECORDS

Application for amendment or annotation of personal records

“48. 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.

Requirements of an application for amendment

“49. 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).

Amendment of records

“50. (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.

Annotations of records etc. following unsuccessful applications for amendments of records

“51. (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.

Requirements of an application for annotation

“51a. 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).

Annotation of records

“51b. (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.

Transfer of requests

“51c. (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 to the Department corresponding to the Department of State administered by the Minister who administered the enactment by or under which the body or person is established, continued in existence or is appointed.

“(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; 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.

Notification etc. of a decision under this Part

“51d. (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).

Comments on annotations

“51e. 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.”.

Internal review

34. Section 54 of the Principal Act is amended:

(a) by omitting subsection (1) and substituting the following subsections:

“(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

(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) 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 paragraph 27a (1) (a) 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.”;

(b)     by omitting from subsection (2) “principal officer in accordance with subsection (1), he shall forthwith arrange for himself or” and substituting “agency under this section, it must as soon as practicable arrange for”;

(c)     by omitting from subsection (2) “authorised by him”;

(d)     by omitting from subsection (3) “Subsection (1) does” and substituting “Subsections (1), (1c), (1d) and (1e) do”.

Applications to Administrative Appeals Tribunal

35. Section 55 of the Principal Act is amended:

(a) by omitting paragraphs (1) (a), (b) and (c) and substituting the following paragraphs:

“(a) a decision refusing to grant access to a document in accordance with a request (including 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

(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.”;

(b)    by omitting from subsection (2) “paragraph (1) (a) or (c)” and substituting “subsection (1)”;

(c)     by omitting from paragraph (3) (b) “14 days” and substituting “30 days”;

(d)    by omitting from paragraph (4) (c) “52b (3)” and substituting “57 (3)”;

(e)     by adding at the end the following subsections:

“(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.

“(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.”.

Application to Tribunal where decision delayed

36.  Section 56 of the Principal Act is amended:

(a)    by omitting from paragraph (1) (a) “section 19;” and substituting “section 15; and”;

(b)    by omitting from paragraph (1) (b) “the relevant period, in relation to that request, for the purposes of section 19” and substituting “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)”;

(c)     by inserting after subsection (1) the following subsection:

“(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.”;

(d)    by inserting in subsections (2) and (3) “or (1a), as the case may be,” after “subsection (1)”;

(e)     by omitting subsection (5) and substituting the following subsection:

“(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, at the applicant’s request, treat the proceedings as extending to a review of that decision in accordance with this Part.”.

37.  After section 56 of the Principal Act the following section is inserted:

Complaints to Ombudsman

“57. (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.”.

Proceedings upon exercise of powers under subsection 58 (4), (5) or (5a)

38.  Section 58a of the Principal Act is amended by omitting paragraph (2) (a) and substituting the following paragraph:

“(a) any claim made in the certificate is to be taken, for the purposes of this Act, to have been withdrawn; and”.

Review of certain decisions in respect of documents relating to the Government of a State

39.  Section 58f of the Principal Act is amended:

(a)  by omitting subsection (1) and substituting the following subsection:

“(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.”;

(b)     by omitting from paragraph (2) (a) “sections 55 and 61” and substituting “section 55”;

(c)     by omitting subsection (3) and substituting the following subsection:

“(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.”.

Review of certain decisions in respect of documents relating to business affairs etc.

40. Section 59 of the Principal Act is amended:

(a)  by omitting subsection (1) and substituting the following subsection:

“(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.”;

(b)    by omitting from paragraph (2) (a) “sections 55 and 61” and substituting “section 55”;

(c)     by omitting subsection (3) and substituting the following subsection:

“(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.”.

Review of certain decisions in respect of documents containing personal information

41.  Section 59a of the Principal Act is amended:

(a)  by omitting subsection (1) and substituting the following subsection:

“(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.”;

(b)    by omitting from paragraph (2) (a) “sections 55 and 61” and substituting “section 55”;

(c)     by omitting subsection (3) and substituting the following subsection:

“(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.”.

Onus

42.  Section 61 of the Principal Act is amended:

(a)    by omitting “In” and substituting “Subject to subsection (2), in;

(b)    by adding at the end the following subsection:

“(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.”.

Production of exempt documents

43.  Section 64 of the Principal Act is amended by omitting from subsection (1) “if the Tribunal is not satisfied, by evidence on affidavit or otherwise, that the document is an exempt document it” and

substituting “the Tribunal, for the purpose of deciding whether the document is an exempt document,”.

Protection against certain actions

44.  Section 91 of the Principal Act is amended by inserting after subsection (1) the following subsections:

“(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.”.

Reports to Parliament

45.  Section 93 of the Principal Act is amended by omitting from subparagraph (3) (a) (i) “section 19” and substituting “section 15”.

Schedule 2

46.  Schedule 2 to the Principal Act is amended:

(a)    by omitting from Part II “Australian Egg Board, in relation to documents in respect of its competitive commercial activities”;

(b)    by inserting after the item relating to the Health Insurance Commission the following item:

“ ‘National Health and Medical Research Council’, in relation to documents in the possession of members of the National Health and Medical Research Council who are not officers, or employees, within the meaning of the Public Service Act 1922”;

(c)  by omitting from Part II “competitive” (wherever occurring).

47.  The Principal Act is amended by adding at the end the following Schedules:

“SCHEDULE 3                                                  Section 38

SECRECY PROVISIONS

Australian Capital Territory Taxation (Administration) Act 1969, subsection 7(1)

Australian Institute of Health Act 1987, subsections 29 (1) and (3)

Australian Security Intelligence Organization Act 1979, subsections 92 (1) and (1a)

Broadcasting Act 1942, paragraph 125 (2) (a)

Child Support (Registration and Collection) Act 1988, paragraph 16 (2) (b)

Child Support (Assessment) Act 1989, paragraph 150 (2) (b)

Crimes (Taxation Offences) Act 1980, subsections 4 (1a), (1) and (1aa)

Debits Tax Administration Act 1982, subsection 7 (2)

SCHEDULE 3—continued

Designs Act 1906, subsection 40f (2)

Disability Services Act 1986, subsections 28 (2) and (6)

Epidemiological Studies (Confidentiality) Act 1981, sections 4 and 6

Fringe Benefits Tax Assessment Act 1986, subsection 5 (3)

Gift Duty Assessment Act 1941, subsections 10 (2) and (5)

Health Insurance Act 1973, subsections 130 (1), (4) and (9)

Income Tax Assessment Act 1936, subsections 16 (2), (4f), (4fa), (4jb) and (5c)

National Health Act 1953, subsections 135a (1), (4) and (9)

Patents Act 1990, paragraph 56 (1) (a) and subsection 173 (2)

Payroll Tax (Territories) Assessment Act 1971, subsection 8 (2)

Petroleum Resource Rent Tax Assessment Act 1987, subsection 17 (3)

Sales Tax Assessment Act (No. 1) 1930, subsection 10 (2)

Sales Tax Procedure Act 1934, subsection 4a (3)

Social Security Act 1991, subsections 1312 (1) and 1336 (3)

Stevedoring Industry Charge Assessment Act 1947, subsections 10 (2) and (5)

Taxation Administration Act 1953, subsection 3c (2), paragraph 8wb (1) (c) and subsection 8xb (1)

Taxation (Interest on Overpayments) Act 1983, subsection 8 (2)

Telecommunications (Interception) Act 1979, section 63

Tobacco Charges Assessment Act 1955, subsections 10 (2) and (5)

Wool Tax (Administration) Act 1964, subsections 8 (2) and (5)

Air Navigation Regulations, subregulation 283 (1)

Defence (Inquiry) Regulations, subregulation 63 (2).

“SCHEDULE 4                                       Section 43a

RESEARCH INSTITUTIONS

The Australian National University.”.

NOTE

1. No. 3, 1982, as amended. For previous amendments, see Nos. 7 and 81, 1983; No. 63, 1984; No. 187, 1985; Nos. 102 and 111, 1986; Nos. 6, 87, 109, 119, 121, 126, 127 and 129, 1988; Nos. 66 and 150, 1989; Nos. 26, 75, 77 and 118, 1990; and No. 99, 1991.

[Minister’s second reading speech made in—

Senate on 14 August 1991

House of Representatives on 3 September 1991]