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

Schedule 4   Information Commissioner amendments

Part 1   Main amendments

Freedom of Information Act 1982

50   Before section 91

Insert:

Division 1 Vexatious applicants

89K Vexatious applicants - declaration

(1) The Information Commissioner may, by written instrument (a vexatious applicant declaration ), declare a person to be a vexatious applicant.

Note 1: Section 89L sets out the grounds on which a declaration may be made.

Note 2: For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) The Information Commissioner may make a declaration:

(a) on the application of an agency or Minister; or

(b) on the Information Commissioner's initiative.

(3) If an agency or Minister has applied for a declaration, the agency or Minister has the onus of establishing that the Information Commissioner should make the declaration.

(4) The Information Commissioner must, as soon as practicable, give written notice to the person in relation to whom the vexatious applicant declaration is made.

89L Vexatious applicants - grounds for declaration

(1) The Information Commissioner may make a vexatious applicant declaration in relation to a person only if the Information Commissioner is satisfied of any of the following:

(a) that:

(i) the person has repeatedly engaged in access actions; and

(ii) the repeated engagement involves an abuse of the process for the access action;

(b) a particular access action in which the person engages involves, or would involve, an abuse of the process for that access action;

(c) a particular access action in which the person engages would be manifestly unreasonable.

(2) A person engages in an access action if the person does any of the following:

(a) makes a request;

(b) makes an application under section 48;

(c) makes an application for internal review;

(d) makes an IC review application.

(3) The Information Commissioner must not make a declaration in relation to a person without giving the person an opportunity to make written or oral submissions.

(4) In this section:

abuse of the process for an access action includes, but is not limited to, the following:

(a) harassing or intimidating an individual or an employee of an agency;

(b) unreasonably interfering with the operations of an agency;

(c) seeking to use the Act for the purpose of circumventing restrictions on access to a document (or documents) imposed by a court.

89M Vexatious applicants - effect of declaration

(1) A vexatious applicant declaration has effect in accordance with the terms and conditions stated in the declaration.

(2) Without limiting subsection (1), a vexatious applicant declaration in relation to a person may provide that:

(a) an agency or Minister may refuse to consider any of the following if made by the person without the written permission of the Information Commissioner:

(i) a request;

(ii) an application under section 48 (amendment of records);

(iii) an application for internal review; and

(b) the Information Commissioner may refuse to consider an IC review application made by the person.

(3) If a decision is made as mentioned in subsection (2), the agency, Minister or the Information Commissioner (as the case requires) must, as soon as practicable, notify the vexatious applicant of the decision.

89N Vexatious applicants - review by Tribunal

An application may be made to the Tribunal for a review of a decision under section 89K of the Information Commissioner to make a vexatious applicant declaration.

Note 1: An application for the review of a decision may be made by a person whose interests are affected by the decision (see section 27 of the Administrative Appeals Tribunal Act 1975).

Note 2: Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets out the time within which the application for review must be made.

Note 3: Section 30 of the Administrative Appeals Tribunal Act 1975 sets out who the parties are to a proceeding before the Tribunal.

Division 2 General

89P Staff to hold appropriate security clearance

The Information Commissioner must take all reasonable steps to ensure that a member of the staff of the Office of the Australian Information Commissioner who performs functions or exercises powers for the purposes of this Act is given a security clearance at an appropriate level.

Note: Security clearances are given in accordance with the Australian Government Protective Security Manual.

90 Protection against civil liability - general

(1) No action for defamation, breach of confidence or infringement of copyright lies against the Commonwealth, a Minister, an agency or an officer of an agency because the Minister, or an officer of the agency:

(a) publishes a document in good faith, in the belief that the publication is required or permitted under Part II (information publication scheme) or section 11C (publication of information in accessed documents); or

(b) gives access to a document in good faith, in the belief that the access is required or permitted to be given in response to a request; or

(c) publishes, or gives access to, a document in good faith, in the belief that the publication or access is required or permitted otherwise than under this Act (whether or not under an express legislative power).

(2) No action for defamation, or breach of confidence, in respect of the publication of a document covered by subsection (3), lies against a person (including the author of the document) because the person supplied the document to a Minister or an agency.

(3) The publication of a document is covered by this subsection if:

(a) it is published as mentioned in paragraph (1)(a) or (c); or

(b) its publication is involved in, or results from, the giving of access to the document (or another document) as mentioned in paragraph (1)(b) or (c).