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FREEDOM OF INFORMATION AMENDMENT BILL 2007

This is a Bill, not an Act. For current law, see the Acts databases.


FREEDOM OF INFORMATION AMENDMENT BILL 2007

                 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