Commonwealth of Australia Explanatory Memoranda

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ARCHIVES AMENDMENT BILL 2006 [2007]

                       2004-2005-2006


       The Parliament of the Commonwealth of Australia




                         The Senate




                Archives Amendment Bill 2006



 Explanatory Memorandum relating to amendments to be moved
by Senator Andrew Murray on behalf of the Australian Democrats




                 Circulated by Senator Murray
These amendments add to the Archives Amendment Bill 2006 further amendments of
the Freedom of Information Act 1982 to overcome the difficulty arising from a recent
judgment of the High Court, and to make other improvements to the review
jurisdiction of the Administrative Appeals Tribunal recommended by the Australian
Law Reform Commission and the Administrative Review Council.

The amendments will preserve the higher level of protection for documents relating to
national security and cabinet documents, while facilitating review of decisions
relating to documents concerning relations with the states, executive council
documents and internal working documents.

Subsection 58(5) of the Freedom of Information Act provides:

     Where application is or has been made to the Tribunal for the review of a
     decision refusing to grant access to a document in accordance with a request,
     being a document that is claimed to be an exempt document under section 36 and
     in respect of which a certificate is in force under that section, the Tribunal shall,
     in a case where it is satisfied that the document is a document to which paragraph
     36(1)(a) applies, if the applicant so requests, determine the question whether
     there exist reasonable grounds for the claim that the disclosure of the document
     would be contrary to the public interest.

Section 36 of the Act relates to internal working documents.

In McKinnon v Secretary, Department of Treasury [2006] HCA 45, a majority of the
High Court held on 6 September 2006 that this provision entitles the Administrative
Review Tribunal to determine only whether reasonable grounds for the withholding of
documents exist, and does not allow the tribunal to balance the competing grounds to
determine whether a document should be disclosed, so that "if one reasonable ground
for the claim of contrariety to the public interest exists, even though there may be
reasonable grounds the other way, the conclusiveness [of the decision that the
document should not be disclosed] will be beyond review."

The principal amendment, amendment (7), adding item 73K to Schedule 1 of the Bill,
repeals this subsection, so that, under section 58, the Tribunal will be able to
determine the reasonableness of the grounds for withholding internal working
documents.

The amendments would preserve the high level of protection and the limited capacity
of the Tribunal to review decisions in relation to documents concerning national
security and cabinet documents.

The effect of the other amendments are set out in tabular form below.

Amendment               Subject                 Relevant provision -                Item no.
   no.                                             principal Act
     (1)        Removing the                Subsection 54(1)                           73A
                application fee.
     (2)        Removing limitations        Subsection 55(2) and (3)                   73B
                on review by the
                Tribunal.
(3)    Consequential to         Paragraph 55(4)(a)           73C
       removing the time
                                Paragraph 55(4)(b)           73D
       limit for applications
       to the Tribunal after
       receiving a response
       from the
       Ombudsman.
(4)    Removing the time        Paragraph 55(4)(c)           73E
       limit for applications
       to the Tribunal after
       receiving a response
       from the
       Ombudsman.
(5)    Reduction of waiting     Paragraph 56(1)(b)           73F
       period.
                                Paragraph 56(1A)(b)          73G
(6)    Removing limitations     Subsection 58(3)             73H
       on review by the
                                Subsection 58(3)             73I
       Tribunal.
                                Subsection 58(4)             73J
(7)    Removing limitation Subsection 58(5)                  73K
       on review by the
       Tribunal in relation to
       internal working
       documents.
(8)    Removing limitations     Subsection 58(5A)            73L
       on review by the
       Tribunal.
(9)    Consequential to (7).    Subsection 58A(1)            73M
(10)   Removing limitations     Paragraph 58A(2)(b)          73N
       on review by the
                                Subsection 58A(5)            73O
       Tribunal.
                                Subsection 58A(6)            73P
(11)   Consequential to (7).    Subsection 58B(1)            73Q
(12)   Changing provisions      Subparagraph 58C(2)(a)(iv)   73R
       for hearings in
       private in relation to
       classes of documents.
(13)   Changing provisions      Subparagraph 58C(2)(a)(v)    73S
       for hearings in
       private in relation to
       classes of documents.
(14)   Changing provisions      Subparagraph 58C(2)(a)(vi)   73T
       for hearings in
                                Subsection 58C (2A)          73U
       private in relation to
                                Subsection 58E(1)            73V
       classes of documents.
(15)   Consequential to (7).   Subsection 58E(2)    73W
                               Paragraph 60(c)      73X
(16)   Lodging of              Subsection 64(1)     73Y
       documents with the
                               Subsection 64(1)     73Z
       Tribunal by an
       agency or Minister.
(17)   Consequential to (7).   Subsection 64(3)     73AA
(18)   Removing limitations    Paragraph 64(3)(a)   73AB
       on review by the
                               Paragraph 64(3)(b)   73AC
       Tribunal.
                               Subsection 64(4)     73AD
(19)   Protection by the    Subsection 64(6)        73AE
       Tribunal of
       documents claimed to
       be exempt
       documents.
(20)   Removing limitations    Section 65           73AF
       on review by the
       Tribunal.
(21)   Discretion of the       Paragraph 66(2)      73AG
       Tribunal to determine
                               Subsection 66(3)     73AH
       payment of costs.