Freedom of Information Amendment (Reform) Act 2010 (51 of 2010)

Schedule 4 Information Commissioner amendments

Part 1 Main amendments

Freedom of Information Act 1982

42 Section 61

Repeal the section, substitute:

61 Onus

(1) In proceedings under this Part for review of a decision in relation to a request, or in relation to an application under section 48 (a personal records application ):

(a) if an agency or a Minister applied for the review - the agency or Minister has the onus of establishing that the decision is not justified, or that the Tribunal should give a decision adverse to the applicant in relation to the request or the personal records application; or

(b) if the applicant in relation to the request or the personal records application applied for the review - the agency to which, or the Minister to whom, the request or personal records application was made has the onus of establishing that the decision is justified, or that the Tribunal should give a decision adverse to the applicant.

(2) However, in proceedings under this Part that relate to a decision to give access to a document to which a consultation requirement applies under section 26A, 27 or 27A, an affected third party for the document in relation to which the decision was made has, if the affected third party is a party to the proceeding, the onus of establishing that:

(a) a decision refusing to give access to the document is justified; or

(b) the Tribunal should give a decision adverse to the person who made the relevant request.

Note: For affected third party , see section 53C.

61A Modification of the Administrative Appeals Tribunal Act 1975

(1) The Administrative Appeals Tribunal Act 1975 applies to proceedings under this Part in the way set out in the following table:

Modification of the Administrative Appeals Tribunal Act 1975
Item	A reference to ...	in the following provision of the Administrative Appeals Tribunal Act 1975 :	is taken to be a reference to ...
1	the person who made the decision	subsection 29(11) (notification of review application)	each of the review parties.
2	the person who made the decision	(a) subsection 33(1AA) (requirement to assist Tribunal); (b) paragraph 33(2A)(b) (procedural directions)	the agency or Minister who made the IC reviewable decision.
3	the person who made the decision that is the subject of the application for a review by the Tribunal	subsection 37(1) or (1AF) (lodging material with Tribunal)	the agency or Minister who made the IC reviewable decision.
4	the person who made the decision	subsection 37(1A) or (1B) (deadlines for lodging documents)	the agency or Minister who made the IC reviewable decision.
5	the person who made the decision to which the relevant proceeding relates	subsection 41(4) (stay of decisions being reviewed)	each of the review parties.
6	the person who made the decision	subsection 41(5) (stay of decisions being reviewed)	each of the review parties.
7	the person who made the decision	subsection 42A(2) (dismissal for failure to appear)	the agency or Minister who made the IC reviewable decision.
8	the person who made a decision	section 67A (giving of notices)	the person who made the decision or an agency.

(2) The agency or Minister who made the IC reviewable decision is taken to have complied with the obligation under paragraph 37(1)(a) of the Administrative Appeals Tribunal Act 1975 if the agency or Minister gives the AAT the number of copies prescribed by the regulations of the decision under section 55K in relation to which an application has been made to the Tribunal.

(3) Subsection (2) does not limit the powers of the Tribunal under section 38 of the Administrative Appeals Tribunal Act 1975.

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