Senate

Explanatory Memorandum

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

General Outline

The primary purpose of the Bill is to repeal the power to issue conclusive certificates in the Freedom of Information Act 1982 (the FOI Act) and the Archives Act 1983 (the Archives Act) for all exemption provisions where certificates may be issued.

The proposal to repeal the power to issue conclusive certificates forms part of the Government's 2007 election commitments made in its policy statement , Government information: restoring trust and integrity.

The effect of the repeal of the certificate power will be that the AAT may undertake full merits review of all exemption claims.

This Bill does not seek to alter the exemption provisions in Part IV of the FOI Act or in Division 3 Part V of the Archives Act, except to the extent that it repeals the power to issue conclusive certificates. Where a document or record properly falls within an exemption category in those Acts (for example, documents affecting personal privacy or documents whose release could damage national security, defence or international relations), access may be refused.

Existing conclusive certificates will be revoked if and when a new request for access to a document or record covered by a certificate is received.

The Bill will introduce a number of procedural measures which are directed to protecting particularly sensitive information in the conduct of proceedings before the AAT, including against unnecessary disclosure. These measures do not affect substantive rights of access to documents or records.

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The AAT will be required, in the first instance, to consider evidence on affidavit or otherwise when determining whether a document is exempt under a national security, defence or international relations exemption, or a confidential foreign government communication exemption (subsection 33(1) of the FOI Act) or the cabinet exemption (section 34 of the FOI Act). Where the AAT is not satisfied that such a document is exempt on that evidence, the AAT has the discretion to inspect the document. A similar measure exists now in the Archives Act (subsection 53(1)).

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Upon exercising its discretion to make confidentiality orders under subsection 35(2) of the Administrative Appeals Tribunal Act 1975, the AAT will be directed to give particular weight to a submission by an agency, Minister or the National Archives that it should make such orders where the proceedings relate to a document or record that is claimed to be exempt under a national security, defence or international relations exemption, or confidential foreign government communication exemption (subsection 33(1) of the FOI Act and paragraphs 33(1)(a) and (b) of the Archives Act).

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The Inspector-General of Intelligence and Security will be asked by the AAT to give evidence as to any damage that could result from disclosure of documents or records claimed to fall within a national security, defence, or international relations exemption, or a confidential foreign government communication exemption (subsection 33(1) of the FOI Act and paragraphs 33(1)(a) and (b) of the Archives Act) before determining that such a document is not exempt.

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Presidential members of the AAT will hear applications for review of a decision to refuse access to a document or record under a national security, defence, or international relations exemption or a confidential foreign government communication exemption (subsection 33(1) of the FOI Act and paragraphs 33(1)(a) and (b) of the Archives Act) and the cabinet exemption (section 34 of the FOI Act).

Other measures in the Bill are as follows.

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In certain cases where notification may not be appropriate, an agency or Minister will be able to apply to the AAT for an order that it be excused from informing certain third parties of an application by an FOI applicant for AAT review. The measure would apply to sections 59 and 59A of the FOI Act.

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Where an appeal is instituted in the Federal Court against an AAT decision to give access to a document or record, the AAT decision will be automatically stayed until the Court decision on the appeal takes effect or such other time determined by the Court, whichever is the earlier.

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Access to a record, by staff of the National Archives, will be limited where those staff do not have appropriate security clearance. This measure will apply to subsections 29(6) and (7) of the Archives Act. This will replace the existing restriction that operates in respect of those documents which are the subject of conclusive certificates.

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The exclusion that applies to publication in the Australian National Guide to Archival Material of particulars of records to which a conclusive certificate is in force will be repealed. This measure will apply to subsection 66(2) of the Archives Act. The existing exclusion that applies to publication of exempt information in the Guide will not be changed.

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A document in the possession of a Minister that has originated with, or has been received from, an intelligence agency will be exempt from the operation of the FOI Act. An equivalent exemption currently applies to documents in the possession of an agency.

Financial Impact Statement

The amendments in this Bill have no financial impact on Government revenue.

Regulation Impact Statement

No Regulation Impact Statement is required for the measures contained in this Bill.