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PARLIAMENT OF VICTORIA
Freedom of Information Amendment Bill 2007
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purposes 1
2 Commencement 2
3 Principal Act 3
PART 2--PUBLICATION OF CERTAIN INFORMATION 4
4 New Part II substituted 4
PART II--PUBLICATION OF CERTAIN
INFORMATION 4
7 Publication of information concerning functions etc. of
agencies 4
8 Standards for publication of information by agencies 5
9 Persons not to be prejudiced by failure of agency to
comply with standards 7
10 Notices to require publication of information 7
5 Amendment of provisions relating to Part II 8
6 New section 69 inserted 10
69 Transitional--Part 2 of Freedom of Information
Amendment Act 2007 10
PART 3--GENERAL AMENDMENTS 11
7 Definitions 11
8 Part III does not apply to certain documents 14
9 Requests for access 14
10 New section 17A inserted 15
17A Access through FOI Online 15
11 Time within which formal requests to be decided 15
12 Waiver of access charges under one fee unit 16
13 Documents affecting personal privacy 16
14 Amendment of provisions relating to the Ombudsman 17
15 Repeal of provisions relating to conclusive certificates 18
16 Documents relating to trade secrets etc. 18
17 Documents containing material obtained in confidence 19
561092B.I-21/11/2007 i BILL LA INTRODUCTION 21/11/2007
Clause Page
18 Applications for review 20
19 New section 70 inserted 20
70 Transitional provisions--Part 3 of the Freedom of
Information Amendment Act 2007 20
PART 4--VEXATIOUS APPLICANTS 22
20 New Part VIA inserted 22
PART VIA--VEXATIOUS APPLICANTS 22
61A Application may be made to Tribunal 22
61B Tribunal may make an order 23
61C Abuse of right of access, amendment or review 23
61D Applicant must be given opportunity to be heard 23
61E Order may provide 24
61F Leave to make a request or application 24
61G Tribunal may vary etc. order 25
61H Tribunal may consider applications prior to Freedom
of Information Amendment Act 2007 26
21 Intervention by the Ombudsman 26
PART 5--AMENDMENTS TO OTHER ACTS AND REPEAL 27
22 Amendments to Ombudsman Act 1973 27
23 Amendments to Victorian Civil and Administrative
Tribunal Act 1998 27
29E Constitution of Tribunal for proceedings under
Part VIA of the Freedom of Information Act 1982 27
24 Amendment to Loy Yang B Act 1992 28
25 Repeal of amending Act 28
ENDNOTES 29
561092B.I-21/11/2007 ii BILL LA INTRODUCTION 21/11/2007
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Freedom of Information Amendment
Bill 2007
A Bill for an Act to amend the Freedom of Information Act 1982,
the Ombudsman Act 1973, the Victorian Civil and Administrative
Tribunal Act 1998 and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purposes
The main purposes of this Act are--
(a) to amend the Freedom of Information Act
5 1982--
(i) to provide for information to be made
available on the Internet for access by
the public;
561092B.I-21/11/2007 1 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 1--Preliminary
s. 2
(ii) to provide for more information to be
made publicly available without the
need for a formal request;
(iii) to remove application fees and permit
5 the waiver of certain charges;
(iv) to remove provisions relating to certain
conclusive certificates;
(v) to provide a procedure for a person to
be declared a vexatious applicant;
10 (vi) to provide for consultation before the
disclosure of certain documents and to
provide for the time allowed to decide
requests to be extended where
consultation is carried out;
15 (vii) to remove the time limit on the
Ombudsman dealing with complaints
about certain decisions to refuse access
to documents; and
(b) to amend section 13 of the Ombudsman Act
20 1973 to clarify the jurisdiction of the
Ombudsman in relation to the Freedom of
Information Act 1982; and
(c) to amend the Victorian Civil and
Administrative Tribunal Act 1998 in
25 relation to applications declaring persons to
be vexatious applicants.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
30 (2) If a provision of this Act does not come into
operation before 1 July 2009, it comes into
operation on that day.
561092B.I-21/11/2007 2 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 1--Preliminary
s. 3
3 Principal Act
In this Act, the Freedom of Information Act See:
Act No.
1982 is called the Principal Act. 9859.
Reprint No. 6
as at
12 December
2005
and
amending
Act Nos
97/2005,
29/2006 and
30/2006.
LawToday:
www.
legislation.
vic.gov.au
__________________
561092B.I-21/11/2007 3 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 2--Publication of Certain Information
s. 4
PART 2--PUBLICATION OF CERTAIN INFORMATION
4 New Part II substituted
For Part II of the Principal Act substitute--
"PART II--PUBLICATION OF CERTAIN
5 INFORMATION
7 Publication of information concerning
functions etc. of agencies
(1) The responsible Minister of an agency, other
than a council, must cause the agency to
10 publish information for the purposes of this
Act in accordance with the standards issued
under section 8.
(2) A council must publish information for the
purposes of this Act in accordance with the
15 standards issued under section 8.
(3) If an agency is required under this section to
publish information, the agency, in
accordance with the standards issued under
section 8--
20 (a) must publish the information on the
Internet site of the agency or of another
agency or a Government Internet site;
and
(b) may publish the information in any
25 other manner the agency thinks fit.
(4) An agency must review and update, in
accordance with the standards issued under
section 8, information that it is required
under this section to publish.
561092B.I-21/11/2007 4 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 2--Publication of Certain Information
s. 4
8 Standards for publication of information
by agencies
(1) The Minister administering this Act must
issue standards relating to the information to
5 be published by agencies under this Part.
(2) The standards may relate to--
(a) the kind of information to be published;
(b) how frequently the information is to be
published, reviewed and updated;
10 (c) the form in which the information is to
be published;
(d) the circumstances in which an agency
may publish information on behalf of
another agency.
15 (3) A standard under this section may--
(a) be expressed as applying to all
agencies, or to all agencies subject to
specified exceptions, or to any specified
agency or class of agency; and
20 (b) make the same provision for all
agencies to which it applies, or
different provisions for different
agencies or classes of agency, or
different provisions for the same
25 agency or class of agency for different
purposes; and
(c) require a matter affected by the
standard to be--
(i) in accordance with a specified
30 requirement; or
(ii) approved by or to the satisfaction
of a specified person or body or a
specified class of person or body;
or
561092B.I-21/11/2007 5 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 2--Publication of Certain Information
s. 4
(iii) as specified in both subparagraphs
(i) and (ii); and
(d) apply, adopt or incorporate any matter
contained in any document published
5 by any person or body whether--
(i) wholly or partially or as amended
by the standard; or
(ii) as published at the time the
standard is issued or at any time
10 before then; or
(iii) as published from time to time;
and
(e) confer a discretionary authority or
impose a duty on a specified person or
15 body or a specified class of person or
body; and
(f) provide in a specified case or class of
case for the exemption of agencies or a
class of agency from any of the
20 provisions of the standard, either
unconditionally or on specified
conditions and either wholly or to such
an extent as is specified.
(4) A standard under this section must not
25 require an agency to publish a document
containing exempt matter.
(5) A standard under this section must not be
inconsistent with any requirement in the
Public Records Act 1973.
30 (6) The Minister administering this Act must
cause a standard issued by him or her under
this section to be published in the
Government Gazette.
561092B.I-21/11/2007 6 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 2--Publication of Certain Information
s. 4
9 Persons not to be prejudiced by failure of
agency to comply with standards
(1) This section applies if--
(a) information containing rules, policies,
5 guidelines or practices adopted by an
agency in relation to a function of the
agency is required under section 7 to be
published; and
(b) the information was not published
10 before a person did or omitted to do any
act or thing relevant to the performance
of the function in relation to the person.
(2) The agency, in performing the function in
relation to the person, must not apply the
15 unpublished rule, policy, guideline or
practice to the detriment of the person if,
with knowledge of that rule, policy,
guideline or practice, the person could have
avoided the detriment lawfully.
20 10 Notices to require publication of
information
(1) A person may serve on the principal officer
of an agency a notice in writing stating that,
in the opinion of the person, specified
25 information required under section 7 to be
published by the agency has not been
published.
(2) The principal officer must--
(a) make a decision within 21 days after
30 the service of the notice whether or not
to publish the specified information;
and
(b) cause the person to be notified in
writing of that decision.
561092B.I-21/11/2007 7 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 2--Publication of Certain Information
s. 5
(3) If the principal officer makes a decision not
to publish the information, the notice must--
(a) state the findings on any material
questions of fact, referring to the
5 material on which those findings were
based, and the reasons for the decision;
and
(b) inform the person of--
(i) their right to apply for a review of
10 the decision; and
(ii) the authority to which the
application for review should be
made; and
(iii) the time within which the
15 application for review must be
made.
__________________".
5 Amendment of provisions relating to Part II
(1) For section 3(1)(a) of the Principal Act
20 substitute--
"(a) making available to the public information
about the operations of agencies in
accordance with the standards issued under
this Act; and".
25 (2) In section 5(1) of the Principal Act, for the
definition of applicant substitute--
"applicant means a person who has made a
request in accordance with section 17 or has
served a notice under section 10(1);".
30 (3) Section 22(1)(f) of the Principal Act is repealed.
561092B.I-21/11/2007 8 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 2--Publication of Certain Information
s. 5
(4) For section 30(2) of the Principal Act
substitute--
"(2) The matter referred to in subsection (1)(a)
does not include matter that is required under
5 section 7 to be published.".
(5) For section 32(2) of the Principal Act
substitute--
"(2) A document that contains information that is
required by section 7 to be published is not
10 an exempt document by virtue of subsection
(1) by reason only of the inclusion of that
information in the document.".
(6) For section 50(2)(d) of the Principal Act
substitute--
15 "(d) a decision under section 10(2) not to publish
information; or".
(7) In section 53(8) of the Principal Act, for "section
12(1)" substitute "section 10(1)".
(8) For section 55(1) of the Principal Act
20 substitute--
"(1) In proceedings under this Part by virtue of
section 10, the principal officer on whom the
notice was served has the onus of
establishing that the information concerned
25 is not information that is required under
section 7 to be published.".
(9) For section 64(3)(f) of the Principal Act
substitute--
"(f) the number of notices served on the principal
30 officer of the agency under section 10(1) and
the number of decisions by the principal
officer under section 10(2) not to publish
information;".
561092B.I-21/11/2007 9 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 2--Publication of Certain Information
s. 6
6 New section 69 inserted
After section 68 of the Principal Act insert--
"69 Transitional--Part 2 of Freedom of
Information Amendment Act 2007
5 (1) The amendments made to this Act by Part 2
of the Freedom of Information
Amendment Act 2007 apply only to
requests or applications made under this Act
on or after the commencement of that Part.
10 (2) Section 9 as in force before its repeal
continues to apply to a person if the time at
which the person did or omitted to do an act
or thing referred to in that section occurred
before the commencement of Part 2 of the
15 Freedom of Information Amendment Act
2007.".
__________________
561092B.I-21/11/2007 10 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 3--General Amendments
s. 7
PART 3--GENERAL AMENDMENTS
7 Definitions
(1) In section 5(1) of the Principal Act insert the
following definitions--
5 "domestic partner of a person means an adult
person to whom the person is not married but
with whom the person is in a relationship as
a couple where one or each of them provides
personal or financial commitment and
10 support of a domestic nature for the material
benefit of the other, irrespective of their
genders and whether or not they are living
under the same roof, but does not include a
person who provides domestic support and
15 personal care to the person--
(a) for fee or reward; or
(b) on behalf of another person or an
organisation (including a government
or government agency, a body
20 corporate or a charitable or benevolent
organisation);
next-of-kin means--
(a) in relation to a deceased child who did
not have a spouse or domestic
25 partner--
(i) if a parent of the child is
available--a parent of the child;
or
(ii) if a parent of the child is not
30 available--a brother or sister of
the child who has attained the age
of 18 years and who is available;
or
561092B.I-21/11/2007 11 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 3--General Amendments
s. 7
(iii) if no person referred to in
subparagraph (i) or (ii) is
available--a person who was the
guardian of the child immediately
5 before the death of the child and
who is available; and
(b) in relation to any other deceased
person--
(i) if the person, immediately before
10 the person's death, had a spouse or
domestic partner and that spouse
or domestic partner is available--
the spouse or domestic partner; or
(ii) if the person, immediately before
15 the person's death, did not have a
spouse or domestic partner or the
spouse or domestic partner is not
available--a son or daughter of
the person who has attained the
20 age of 18 years and who is
available; or
(iii) if no person referred to in
subparagraph (i) or (ii) is available
but a parent of the person is
25 available--that parent; or
(iv) if no person referred to in
subparagraph (i), (ii) or (iii) is
available--a brother or sister of
the person who has attained the
30 age of 18 years and who is
available;
personal information means information or an
opinion (including information or an opinion
forming part of a database), that is recorded
35 in any form and whether true or not, about an
individual whose identity is apparent, or can
561092B.I-21/11/2007 12 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 3--General Amendments
s. 7
reasonably be ascertained, from the
information or opinion, and includes
information that discloses any person's
address or location or from which any
5 person's address or location can reasonably
be ascertained;
spouse of a person means a person to whom the
person is married;".
(2) In section 5(1) of the Principal Act, for the
10 definition of record substitute--
"record, where used in or in relation to Part V,
means a document containing personal
information about a person and includes a
document containing personal information
15 about a deceased person;".
(3) After section 5(3) of the Principal Act insert--
"(3A) The regulations made for the purposes of
paragraph (b) of the definition of prescribed
authority in subsection (1) may declare a
20 body to be a prescribed authority in respect
of specified functions of that body and, if
such a declaration is made, the body is a
prescribed body for the purposes of this Act
only in respect of those specified functions.".
25 (4) After section 5(4) of the Principal Act insert--
"(5) For the purposes of the definition of
domestic partner in subsection (1)--
(a) in determining whether persons are
domestic partners of each other, all the
30 circumstances of their relationship are
to be taken into account, including any
one or more of the matters referred to in
section 275(2) of the Property Law
Act 1958 as may be relevant in a
35 particular case;
561092B.I-21/11/2007 13 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 3--General Amendments
s. 8
(b) a person is not a domestic partner of
another person only because they are
co-tenants.".
8 Part III does not apply to certain documents
5 (1) After section 14(1)(b) of the Principal Act
insert--
"(ba) a document that is available from an agency
without fee or other charge where the person
is provided by or on behalf of the agency or
10 the Minister with a copy of the document or
is advised where the document may be
obtained or inspected; or
(bb) a document that contains information that is
available on the Internet site of any agency
15 where the person is advised, by or on behalf
of the agency or the Minister, of that Internet
site; or".
(2) In section 14(1) of the Principal Act--
(a) at the end of paragraph (a) insert "or";
20 (b) at the end of paragraph (c) insert "or".
9 Requests for access
(1) At the foot of section 17(1) of the Principal Act
insert--
"Note
25 The Electronic Transactions (Victoria) Act 2000 enables a
request to be made by email or over the Internet or by other
electronic communication.".
(2) Sections 17(2A) and 17(2B) of the Principal Act
are repealed.
561092B.I-21/11/2007 14 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 3--General Amendments
s. 10
10 New section 17A inserted
After section 17 of the Principal Act insert--
"17A Access through FOI Online
(1) The Minister administering this Act may
5 direct an agency to participate in FOI Online.
(2) An agency must comply with a direction to
participate in FOI Online within the time
required by the Minister.
(3) If an agency participates in FOI Online, a
10 request under section 17(1) to an agency for
access to a document may be made through
FOI Online.
(4) In this section FOI Online means the
information system (within the meaning of
15 the Electronic Transactions (Victoria) Act
2000) by that name established by the State
and accessible through the Government
Internet site established for that purpose.".
11 Time within which formal requests to be decided
20 (1) At the end of section 21 of the Principal Act
insert--
"(2) If, in relation to a request, the agency or
Minister decides to act as set out in section
33(2B), 34(3) or 35(1A), the agency or
25 Minister may determine in writing that that
action makes it appropriate for the period
referred to in subsection (1) to be extended.
(3) The period referred to in subsection (1) is
extended by a further period of 30 days if the
30 agency or Minister makes a determination
under subsection (2).
561092B.I-21/11/2007 15 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 3--General Amendments
s. 12
(4) If the period referred to in subsection (1) is
extended by force of subsection (3), the
agency or Minister must, as soon as
practicable, notify the applicant of that
5 extension.".
(2) In section 25A(7) of the Principal Act for "45 day
period" substitute "period for notice of a
decision".
12 Waiver of access charges under one fee unit
10 After section 22(1)(g) of the Principal Act
insert--
"(ga) a charge of less than one fee unit shall be
waived if the agency considers it reasonable
to do so;".
15 13 Documents affecting personal privacy
(1) In sections 22(1)(h)(iii), 22(1)(i), 33(1), 33(2A),
33(3), 39 and 53A(1)(b) of the Principal Act, for
"information relating to the personal affairs of"
substitute "personal information about".
20 (2) After section 33(2A) of the Principal Act insert--
"(2B) An agency or Minister, before deciding
whether the disclosure of a document under
this Act would involve the unreasonable
disclosure of personal information about any
25 person, may--
(a) notify the person who is the subject of
that information (or, in the case of a
deceased person, that person's next-of-
kin) that the agency or Minister has
30 received a request for access to the
document; and
(b) seek that person's view as to whether
disclosure of the document should
occur.
561092B.I-21/11/2007 16 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 3--General Amendments
s. 14
(2C) An agency or Minister who consults a person
under subsection (2B) must inform the
person that if he or she consents to disclosure
of the document he or she is not entitled to
5 apply to the Tribunal for review of a decision
under this section to disclose the document.
Note
See section 50(3).".
(3) In section 33(3) of the Principal Act, for "of the
10 right of appeal against" substitute "of the right to
make an application for review of".
(4) After section 33(3) of the Principal Act insert--
"(3A) A notice is not required to be given under
subsection (3) to a person who has consented
15 to the disclosure of the document.".
(5) Section 33(9) of the Principal Act is repealed.
(6) In section 67(1) of the Principal Act for "records
about himself, within the meaning of section 33,"
substitute "a document containing personal
20 information about the applicant".
14 Amendment of provisions relating to the
Ombudsman
(1) Sections 25A(8) and 25A(9) of the Principal Act
are repealed.
25 (2) In section 25A(10) of the Principal Act, for "about
which a complaint has been made to the
Ombudsman" substitute "to refuse access to a
document under this section and a complaint has
also been made to the Ombudsman under the
30 Ombudsman Act 1973 in respect of that
decision".
(3) In section 27(1)(e) of the Principal Act, after
"Ombudsman" insert "under the Ombudsman
Act 1973 in respect of that decision".
561092B.I-21/11/2007 17 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 3--General Amendments
s. 15
15 Repeal of provisions relating to conclusive
certificates
(1) Sections 28(4) and 28(6) of the Principal Act are
repealed.
5 (2) In section 28(5) of the Principal Act--
(a) omit "a certificate under subsection (4) or";
and
(b) omit "or a decision to sign such a
certificate".
10 (3) Section 50(5) of the Principal Act is repealed.
16 Documents relating to trade secrets etc.
For section 34(3) of the Principal Act
substitute--
"(3) An agency or Minister, before deciding
15 whether the disclosure of information would
expose an undertaking unreasonably to
disadvantage, must--
(a) notify the undertaking that supplied the
relevant document that the agency or
20 Minister has received a request for
access to the document; and
(b) seek the undertaking's view as to
whether disclosure of the document
should occur; and
25 (c) notify the undertaking that if the
undertaking consents to the disclosure
of the document the undertaking is not
entitled to apply to the Tribunal for
review of a decision under subsection
30 (3A) to disclose the document.
Note
See section 50(3A).
561092B.I-21/11/2007 18 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 3--General Amendments
s. 17
(3A) If the agency or Minister, after consultation,
decides to disclose the document, the agency
or Minister must notify the undertaking that
supplied the document of the decision and of
5 the right to make an application for review of
the decision provided by section 50(2)(e).
(3B) A notice is not required to be given under
subsection (3A) to an undertaking that has
consented to the disclosure of the
10 document.".
17 Documents containing material obtained in
confidence
After section 35(1) of the Principal Act insert--
"(1A) An agency or Minister, before deciding
15 whether the disclosure of a document under
this Act would divulge any information or
matter communicated in confidence by or on
behalf of a person or a government to an
agency or a Minister and whether the
20 disclosure of the information would be
contrary to the public interest for the reason
set out in subsection (1)(b), may--
(a) notify the person or government that
communicated the information or
25 matter that the agency or Minister has
received a request for access to the
document; and
(b) seek the view of that person or
government as to whether--
30 (i) the information or matter was
communicated in confidence; and
(ii) the disclosure of the information
or matter would be contrary to the
public interest for the reason set
35 out in subsection (1)(b).".
561092B.I-21/11/2007 19 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 3--General Amendments
s. 18
18 Applications for review
(1) In section 50(2) of the Principal Act, after
"Subject to" insert "subsections (3), (3A) and
(3B) and".
5 (2) For section 50(2)(e) of the Principal Act
substitute--
"(e) a decision to disclose a document under
section 33(3) or 34(3A), or not to amend
a record pursuant to a request under
10 section 39."
(3) After section 50(2) of the Principal Act insert--
"(3) A person who has consented to the
disclosure of a document is not entitled to
apply to the Tribunal for review of the
15 decision to disclose that document under
section 33(3).
(3A) An undertaking that has consented to the
disclosure of a document is not entitled to
apply to the Tribunal for review of a decision
20 to disclose that document under section
34(3A).".
(4) Before section 50(4) of the Principal Act insert--
"(3B) To avoid doubt, an applicant is not entitled to
apply to the Tribunal for review of a decision
25 of a kind referred to in section 27(1)(e).".
19 New section 70 inserted
At the end of Part VII of the Principal Act
insert--
"70 Transitional provisions--Part 3 of the
30 Freedom of Information Amendment Act
2007
(1) The amendments made to this Act by a
provision of Part 3 of the Freedom of
Information Amendment Act 2007 apply
561092B.I-21/11/2007 20 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 3--General Amendments
s. 19
only to requests or applications made under
this Act on or after the commencement of
that provision.
(2) Despite the repeal of section 50(5) of this
5 Act by section 15 of the Freedom of
Information Amendment Act 2007, section
50(5) continues to apply in respect of a
certificate given under section 28(4) before
the commencement of that section 15.".
__________________
561092B.I-21/11/2007 21 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 4--Vexatious Applicants
s. 20
PART 4--VEXATIOUS APPLICANTS
20 New Part VIA inserted
After Part VI of the Principal Act insert--
"PART VIA--VEXATIOUS APPLICANTS
5 61A Application may be made to Tribunal
(1) An agency or Minister may, on the
certificate of the Attorney-General, apply to
the Tribunal for an order declaring a person
to be a vexatious applicant.
10 (2) An application under subsection (1) may be
made by 2 or more agencies or Ministers or
both.
(3) If an agency or Minister makes an
application under subsection (1) in respect of
15 a person who has made a request or an
application under section 51(1) to the agency
or Minister, the determination period is to be
disregarded in the computation of, as the
case requires--
20 (a) the period for notice of a decision
referred to in section 21; or
(b) the period referred to in section
51(2)(b).
(4) In this section determination period means
25 the period commencing on the day that the
application is made to the Tribunal under
subsection (1) and ending on the day that the
application is determined by the Tribunal or
withdrawn.
561092B.I-21/11/2007 22 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 4--Vexatious Applicants
s. 20
61B Tribunal may make an order
(1) On an application under section 61A(1), the
Tribunal may make an order declaring the
person to be a vexatious applicant if it is
5 satisfied that over a period of time--
(a) the person has made repeated
applications under this Act in relation
to the agency or agencies or Minister or
Ministers; and
10 (b) the repeated applications involve an
abuse of the right of access, amendment
or review under this Act.
(2) For the purposes of this Part--
repeated applications means applications or
15 requests relating to the same matter or
different matters;
review includes conciliation.
61C Abuse of right of access, amendment or
review
20 Without limiting section 61B, the repeated
applications involve an abuse of the right of
access, amendment or review if the repeated
applications were made for the purpose or
have had the effect of obstructing or
25 otherwise unreasonably interfering with the
operations of the agency or agencies.
61D Applicant must be given opportunity to be
heard
The Tribunal must not make an order under
30 section 61B in relation to a person without
giving the person an opportunity to be heard.
561092B.I-21/11/2007 23 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 4--Vexatious Applicants
s. 20
61E Order may provide
An order under section 61B may--
(a) provide that the person must not
without leave of the Tribunal--
5 (i) make any request or application
under this Act for access,
amendment or review; or
(ii) make any specified type of request
or application under this Act; or
10 (b) impose any other terms or conditions
on the making of a request or
application by the person of a kind
referred to in paragraph (a).
61F Leave to make a request or application
15 (1) This section applies if a person is required by
an order under section 61B to seek leave of
the Tribunal before making a request or
application under this Act.
(2) Leave must not be given unless the Tribunal
20 is satisfied that the request or application is
not or will not be an abuse of the right of
access, amendment or review provided for
by this Act.
(3) If a person is required to seek leave of the
25 Tribunal before making an application for
review under section 50(2), the leave must
be sought within 60 days from the day on
which notice of the decision on a request or a
review under section 51 or notice under
30 section 51A(4) (as the case requires) was
given to the person.
561092B.I-21/11/2007 24 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 4--Vexatious Applicants
s. 20
(4) If a person is required to seek leave of the
Tribunal before making an application under
section 51 or 51A, the leave must be sought
within 28 days from the day on which notice
5 of the decision was given to the person in
accordance with section 27 or 45.
Note
See section 45.
(5) If a person applies for leave before making
10 an application under section 50(2), 51 or
51A, the time allowed by section 51(1),
51A(3) or 52 (as the case requires) to make
that application does not commence until the
application for leave is determined.
15 61G Tribunal may vary etc. order
(1) The Tribunal may at any time vary, set aside
or revoke an order made under section 61B if
it considers it proper to do so.
(2) The Tribunal may vary, set aside or revoke
20 the order on the application of the person
subject to the order or an agency or Minister
who applied for the order.
(3) An agency or Minister who applied for the
order is entitled to be notified of any
25 proceeding on an application made under
this section by the person subject to the
order.
(4) Orders made under this Part must not
exclude a person's right to apply under
30 subsection (2).
561092B.I-21/11/2007 25 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 4--Vexatious Applicants
s. 21
61H Tribunal may consider applications prior
to Freedom of Information Amendment
Act 2007
The Tribunal, in determining whether to
5 make an order under section 61B, may take
into account applications or requests made
under this Act before or after the
commencement of Part 4 of the Freedom of
Information Amendment Act 2007 to an
10 agency or Minister by whom the application
for the order was made.
__________________".
21 Intervention by the Ombudsman
In section 57(3) of the Principal Act, after
15 "section 34" insert "or Part VIA".
__________________
561092B.I-21/11/2007 26 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 5--Amendments to Other Acts and Repeal
s. 22
PART 5--AMENDMENTS TO OTHER ACTS AND REPEAL
22 Amendments to Ombudsman Act 1973 See
Act No.
8414.
(1) After section 13(2A) of the Ombudsman Act Reprint No. 7
1973 insert-- as at
16 February
5 "(2B) The Ombudsman also has power to enquire 2006
and
into or investigate any administrative action amending
taken under the Freedom of Information Act Nos
23/2006,
Act 1982 by-- 29/2006,
43/2006 and
(a) a prescribed authority within the 80/2006.
10 meaning of paragraph (b) of the LawToday:
www.
definition of prescribed authority set legislation.
out in section 5(1) of that Act; or vic.gov.au
(b) a member of the police force of
Victoria.".
15 (2) After section 13(3A)(a) of the Ombudsman Act
1973 insert--
"(ab) in accordance with subsection (2B)(b); or".
23 Amendments to Victorian Civil and Administrative See:
Act No.
Tribunal Act 1998 53./1998.
Reprint No. 5
20 (1) In clause 29A(b) of Part 8 of Schedule 1 to the as at
1 April 2007
Victorian Civil and Administrative Tribunal and
Act 1998 for "information relating to the personal amending
Act Nos
affairs of a person" substitute "personal 97/2005,
information about a person". 16/2006,
23/2006,
25 (2) After clause 29D of Part 8 of Schedule 1 to the 24/2006,
48/2006,
Victorian Civil and Administrative Tribunal 69/2006,
Act 1998 insert-- 24/2007,
26/2007 and
"29E Constitution of Tribunal for proceedings 28/2007.
LawToday:
under Part VIA of the Freedom of www.
30 Information Act 1982 legislation.
vic.gov.au
In a proceeding under Part VIA of the
Freedom of Information Act 1982, the
561092B.I-21/11/2007 27 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Part 5--Amendments to Other Acts and Repeal
s. 24
Tribunal is to be constituted by the
President.".
24 Amendment to Loy Yang B Act 1992
In section 34(4)(b) of the Loy Yang B Act 1992
5 for "sub-section (3)" substitute "subsections (3)
and (3A)".
25 Repeal of amending Act
This Act is repealed on 1 July 2010.
Note
10 The repeal of this Act does not affect the continuing
operation of the amendments made by it (see section 15(1)
of the Interpretation of Legislation Act 1984).
561092B.I-21/11/2007 28 BILL LA INTRODUCTION 21/11/2007
Freedom of Information Amendment Bill 2007
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561092B.I-21/11/2007 29 BILL LA INTRODUCTION 21/11/2007
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