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
Western Australia
Freedom of Information Amendment Bill 2007
CONTENTS
1. Short title 2
2. Commencement 2
3. The Act amended 2
4. Section 6 amended 2
5. Section 12A inserted 3
12A. Withdrawal of application 3
6. Section 13A inserted 3
13A. Agency may request consultation or
further information 3
7. Section 17 amended 4
8. Section 19 amended 4
9. Section 20 amended 4
10. Section 23 amended 5
11. Section 24 replaced by sections 24 and 24A 5
24. Deletion of exempt matter 5
24A. Deletion of matter outside the ambit of an
access application 6
12. Section 30 amended 6
13. Section 30A inserted 7
30A. Applications may be regarded as having
been withdrawn in certain circumstances 7
14. Section 32 amended 9
15. Part 2 Division 4 repealed 9
16. Section 39 amended 9
17. Section 40 amended 10
18. Section 62A inserted 10
62A. How Commissioner is to deal with a
complaint 10
19. Section 63 amended 10
20. Sections 64A and 64B inserted 12
64A. Powers relating to review 12
64B. Commissioner to report on review 13
21. Section 65 amended 13
191--1B page i
Freedom of Information Amendment Bill 2007
Contents
22. Section 66 amended 14
23. Section 67 amended 15
24. Sections 67A and 67B inserted 16
67A. Referral of complaint to agency in certain
circumstances 16
67B. Referral of complaint to State
Administrative Tribunal if Commissioner
decides not to deal with it 17
25. Section 69 amended 18
26. Section 70 amended 18
27. Section 71 replaced 20
71. Conciliation proceedings record 20
28. Section 74 amended 21
29. Section 75 amended 21
30. Sections 76, 77 and 78 replaced 22
76. Referral of unresolved complaint to State
Administrative Tribunal 22
77. Provision of information to State
Administrative Tribunal 22
31. Section 79 replaced 23
79. Delegation 23
32. Section 81 amended 24
33. Section 82 amended 24
34. Section 83 amended 25
35. Section 84 repealed 25
36. Part 4 Division 5, heading to Part 4 Division 6 and
section 88 replaced 25
Division 5 -- State Administrative
Tribunal's jurisdiction as to
complaints
84. Meaning of "complaint jurisdiction" 25
85. Presiding member of Tribunal 26
86. Tribunal to ensure non-disclosure of
certain matter 26
87. Decisions of the Tribunal 27
88. Restrictions under other laws not
applicable 28
88A. Secrecy 29
Division 6 -- Appeals from Tribunal's
decisions as to complaints
88B. Terms used in this Division 29
88C. Appeal from Tribunal's decision 29
88D. No access to exempt document 30
37. Section 89 amended 30
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Freedom of Information Amendment Bill 2007
Contents
38. Section 90 amended 30
39. Section 91 amended 31
40. Section 92 amended 31
41. Section 93 amended 31
42. Section 98 amended 32
43. Section 103 amended 32
44. Section 104 amended 32
45. Section 105 amended 32
46. Section 106 amended 33
47. Section 111 amended 33
48. Section 112 amended 34
49. Section 113 replaced 34
113. Review of Act 34
50. References to "closest relative" altered 35
51. References to "intellectually handicapped person"
altered 35
52. Schedule 1 amended 35
16. Information protected by Aboriginal
tradition 36
53. Schedule 2 amended 37
54. Glossary amended 37
page iii
Western Australia
LEGISLATIVE ASSEMBLY
Freedom of Information Amendment
Bill 2007
A Bill for
An Act to amend the Freedom of Information Act 1992.
The Parliament of Western Australia enacts as follows:
page 1
Freedom of Information Amendment Bill 2007
s. 1
1. Short title
This is the Freedom of Information Amendment Act 2007.
2. Commencement
(1) This Act comes into operation as follows:
5 (a) sections 1 and 2 -- on the day on which this Act
receives the Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation
(different days may be fixed for different provisions).
(2) If when the Information Privacy Act 2007 section 142 comes
10 into operation section 31 has not come into operation, section 31
expires.
(3) If when the Information Privacy Act 2007 section 144 comes
into operation section 33 has not come into operation, section 33
expires.
15 3. The Act amended
The amendments in this Act are to the Freedom of Information
Act 1992*.
[* Reprint 4 as at 10 September 2004.
For subsequent amendments see Western Australian
20 Legislation Information Tables for 2005, Table 1 and Acts
Nos. 41 and 43 of 2006.]
4. Section 6 amended
(1) Section 6 is amended by inserting before "Parts" the subsection
designation "(1)".
25 (2) At the end of section 6 the following subsection is inserted --
"
(2) Parts 2 and 4 do not apply to a person's access to a
document if the person is able to obtain access to the
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Freedom of Information Amendment Bill 2007
s. 5
document (whether for a fee or charge or not)
otherwise than under this Act.
".
5. Section 12A inserted
5 After section 12 the following section is inserted in Part 2
Division 1 --
"
12A. Withdrawal of application
An access applicant may withdraw an access
10 application by giving a written notice to that effect to
the agency.
".
6. Section 13A inserted
After section 13 the following section is inserted --
15 "
13A. Agency may request consultation or further
information
(1) In order to deal with the access application the agency
may in a written notice given to the applicant request
20 the applicant to consult with, or provide further
information to, the agency about the application.
(2) A notice under subsection (1) has to --
(a) give details of the access application; and
(b) state that the notice is given under this section;
25 and
(c) state the name and designation of the officer of
the agency who must be consulted or informed.
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s. 7
(3) The agency is not allowed under subsection (1) --
(a) to request the applicant to provide information
as to the applicant's reasons for wishing to
obtain access to the requested documents; or
5 (b) to inquire as to those reasons in the course of
consultation.
".
7. Section 17 amended
(1) Section 17(3) is amended by deleting "$25, or such greater
10 amount as is prescribed," and inserting instead --
" the prescribed amount ".
(2) After section 17(3) the following subsection is inserted --
"
(4) Unless a greater amount is prescribed by regulation,
15 $60 is the "prescribed amount" for the purposes of
subsection (3).
".
8. Section 19 amended
Section 19(4) is repealed.
20 9. Section 20 amended
(1) After section 20(2) the following subsection is inserted --
"
(2a) An agency may refuse to deal with an access
application if the application --
25 (a) is substantially in the same terms as one already
made by the applicant to the agency; or
(b) is frivolous or trivial in nature; or
(c) is made in order to harass the agency; or
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Freedom of Information Amendment Bill 2007
s. 10
(d) amounts to an abuse of the right of access
created by this Act.
".
(2) Section 20(3) is amended by inserting after "subsection (2)" --
5 " or (2a) ".
10. Section 23 amended
Section 23(3) is repealed.
11. Section 24 replaced by sections 24 and 24A
Section 24 is repealed and the following sections are inserted
10 instead --
"
24. Deletion of exempt matter
If the access application requests access to a document
and --
15 (a) the matter contained in the document includes
exempt matter; and
(b) it is practicable for the agency to edit a copy of
the document so as to delete the exempt matter;
and
20 (c) the agency considers (either from the terms of
the application or after consultation with the
applicant) that the applicant would wish to be
given access to an edited copy,
the agency has to make and give access to an edited
25 copy.
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s. 12
24A. Deletion of matter outside the ambit of an access
application
If the access application requests access to a document
and --
5 (a) the matter contained in the document includes
matter that may reasonably be regarded as
being outside the ambit of the application
("irrelevant matter"); and
(b) it is practicable for the agency to edit a copy of
10 the document so as to delete the irrelevant
matter; and
(c) the agency considers (either from the terms of
the application or after consultation with the
applicant) that the applicant would wish to be
15 given access to an edited copy,
the agency may make and give access to an edited
copy.
".
12. Section 30 amended
20 Section 30 is amended as follows:
(a) after paragraph (c) by inserting --
"
(ca) if the decision is that access is to be given to an
edited copy of a document under
25 section 24A --
(i) the fact that access is to be given to an
edited copy; and
(ii) the grounds on which matter has been
deleted;
30 and
";
page 6
Freedom of Information Amendment Bill 2007
s. 13
(b) after paragraph (d) by inserting --
"
(da) if the decision is to give access to a document
in a way other than the way requested by the
5 applicant -- the reasons for giving access that
other way; and
";
(c) after each of paragraphs (a), (b), (c), (d), (e) and (f) by
inserting --
10 " and ".
13. Section 30A inserted
After section 30 the following section is inserted --
"
30A. Applications may be regarded as having been
15 withdrawn in certain circumstances
(1) The agency may in a written notice given to an
applicant (a "compliance notice") advise the applicant
that the applicant may be regarded by the agency as
having withdrawn the access application if the
20 applicant does not --
(a) comply with a request of the agency contained
in a notice under section 13A(1) to consult
with, or provide further information to, the
agency about the application; or
25 (b) nominate a suitably qualified person under
section 28; or
(c) obtain access to requested documents,
within the period of 30 days after the day on which the
compliance notice was given to the applicant.
30 (2) Subsection (1)(c) applies if the applicant has been
given notice under section 13(1)(b) of the agency's
decision to give access to requested documents.
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s. 13
(3) A compliance notice has to --
(a) give details of the access application; and
(b) state that the notice is given under this section
and that failure to comply with it may result in
5 the applicant being regarded as having
withdrawn the access application; and
(c) in the case of a notice under subsection (1)(a),
give details of the notice under section 13A(1)
that it refers to; and
10 (d) in the case of a notice under subsection (1)(b),
state the name and designation of the officer of
the agency to whom the nomination is to be
given; and
(e) in the case of a notice under subsection (1)(c),
15 state the name and designation of the officer of
the agency from whom access to the document
is to be obtained.
(4) The agency may regard the applicant as having
withdrawn the access application if, within the period
20 of 30 days after the day on which the agency gave the
applicant a compliance notice, the applicant does
not --
(a) in the case of a notice under subsection (1)(a),
comply with the request referred to in the
25 notice; or
(b) in the case of a notice under subsection (1)(b),
nominate a suitably qualified person under
section 28; or
(c) in the case of a notice under subsection (1)(c),
30 obtain access to requested documents.
(5) If the agency decides to regard the applicant as having
withdrawn the access application, the agency is to give
the applicant a written notice of that decision.
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s. 14
(6) The notice under subsection (5) has to give details
of --
(a) the day on which the decision was made; and
(b) the name and designation of the officer who
5 made the decision; and
(c) the reasons for deciding to regard the applicant
as having withdrawn the access application;
and
(d) the rights of review and appeal (if any) under
10 this Act and the procedure to be followed to
exercise those rights.
".
14. Section 32 amended
Section 32(1) is amended by inserting after "personal
15 information" --
"
(other than details prescribed for the purposes of
Schedule 1 clause 3(3))
".
20 15. Part 2 Division 4 repealed
Part 2 Division 4 is repealed.
16. Section 39 amended
Section 39(2) is amended as follows:
(a) after paragraph (a)(iv) by inserting --
25 "
(iva) give access to a document in a way
other than in the way requested by the
applicant; or
";
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s. 17
(b) after paragraph (a)(v) by inserting --
"
(va) regard, under section 30A, an applicant
as having withdrawn an access
5 application; or
";
(c) after each of paragraph (a)(i) to (iv) by inserting --
" or ".
17. Section 40 amended
10 Section 40(3) is amended by deleting "the principal officer of ".
18. Section 62A inserted
Before section 63 the following section is inserted in Part 4
Division 2 --
"
15 62A. How Commissioner is to deal with a complaint
(1) The Commissioner is to "deal with" a complaint by
endeavouring to resolve the complaint by conciliation.
(2) Despite subsection (1), if the Commissioner had started
to deal with a complaint before the commencement of
20 the Freedom of Information Amendment Act 2007
section 18, the provisions of this Part as in force before
that commencement continue to apply in relation to the
complaint as if they were still in force.
".
25 19. Section 63 amended
(1) Section 63(1) is amended by inserting before "deal" --
" receive and, subject to this Act, ".
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s. 19
(2) After section 63(1) the following subsection is inserted --
"
(1a) Proceedings conducted by the Commissioner to deal
with a complaint are called "conciliation
5 proceedings".
".
(3) Section 63(2) is amended by deleting the full stop after
paragraph (f) and inserting --
"
10 ;
(g) reviewing an agency's procedures --
(i) for giving members of the public access
to the documents of the agency under
Part 2; and
15 (ii) for amending personal information in
the documents of the agency under
Part 3.
".
(4) Section 63(3) is amended as follows:
20 (a) in paragraph (a) by deleting "but is not a Minister" and
inserting instead --
" for which a Minister is responsible ";
(b) in paragraph (b) by inserting after "Minister" --
"
25 or the principal officer of an agency for which
no Minister is responsible
".
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s. 20
20. Sections 64A and 64B inserted
At the end of Part 4 Division 2 the following sections are
inserted --
"
5 64A. Powers relating to review
(1) If the Commissioner has reason to believe that a person
has information or a document relevant to a review
under section 63(2)(g), the Commissioner may give to
the person a written notice requiring the person --
10 (a) to give the information to the Commissioner in
writing signed by the person or, in the case of a
body corporate, by an officer of the body
corporate; or
(b) to produce the document to the Commissioner.
15 (2) A notice given by the Commissioner under
subsection (1) has to state --
(a) the place at which the information or document
is to be given or produced to the
Commissioner; and
20 (b) the time at which, or the period within which,
the information or document is to be given or
produced.
(3) If the Commissioner has reason to believe that a person
has information relevant to a review under
25 section 63(2)(g), the Commissioner may give to the
person a written notice requiring the person to appear
before the Commissioner at a time and place specified
in the notice to answer questions relevant to the review.
(4) The Commissioner may administer an oath or
30 affirmation to a person required under subsection (3) to
appear before the Commissioner and may examine
such a person on oath or affirmation.
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s. 21
(5) The oath or affirmation to be taken or made by a
person for the purposes of this section is an oath or
affirmation that the answers the person will give will
be true.
5 64B. Commissioner to report on review
(1) As soon as practicable after the completion of a review
under section 63(2)(g) the Commissioner must --
(a) prepare a report on the review; and
(b) give a copy of the report to the agency affected
10 by the review.
(2) The Commissioner may include in the report any
recommendations that the Commissioner considers
appropriate as a result of the review.
(3) If a report includes recommendations that particular
15 action be taken by the agency, the Commissioner may,
by written notice, request the agency to inform the
Commissioner of --
(a) the steps it has taken, or proposes to take, to
give effect to the recommendations; or
20 (b) its reasons for not taking, or proposing to take,
such steps.
".
21. Section 65 amended
(1) Section 65(1) is amended as follows:
25 (a) after paragraph (e) by inserting --
"
(ea) to give access to a document in a way other
than in the way requested by the applicant; or
";
page 13
Freedom of Information Amendment Bill 2007
s. 22
(b) after paragraph (f) by inserting --
"
(fa) under section 30A to regard an applicant as
having withdrawn an access application; or
5 ";
(c) after each of paragraphs (a) to (e) by inserting --
" or ".
(2) After section 65(4) the following subsections are inserted --
"
10 (5) A complaint may be made about an alleged
contravention of a conciliation requirement.
(6) A complaint about an alleged contravention of a
conciliation requirement may be made by --
(a) the person who was the complainant in the
15 conciliation proceedings to which the relevant
conciliation proceedings record relates; or
(b) a person joined as a party to those proceedings
under section 69(2).
".
20 22. Section 66 amended
(1) Section 66(1)(b) is amended by deleting "decision" and
inserting instead --
"
access or amendment decision, or alleged
25 contravention of a conciliation requirement,
".
(2) Section 66(2) and (3) are amended by inserting after
"complaint" --
" against an access or amendment decision ".
page 14
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s. 23
(3) After section 66(3) the following subsection is inserted --
"
(3a) A complaint about an alleged contravention of a
conciliation requirement may be lodged within the
5 period of 6 months after the day on which the
complainant first became aware of the alleged
contravention.
".
(4) Section 66(4) is amended by deleting "or (3)" and inserting
10 instead --
" , (3) or (3a) ".
23. Section 67 amended
(1) Section 67(1) is amended after paragraph (b) by deleting the full
stop and inserting --
15 "
; or
(c) the complainant has not complained to the
agency about the access or amendment
decision, or alleged contravention of a
20 conciliation requirement, and the
Commissioner considers that it would be
appropriate for the agency to deal with the
complaint; or
(d) the complainant has complained to the agency
25 about the access or amendment decision, or
alleged contravention of a conciliation
requirement, and the Commissioner considers
that the agency --
(i) has dealt adequately with the complaint;
30 or
(ii) is dealing adequately with the
complaint; or
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Freedom of Information Amendment Bill 2007
s. 24
(iii) has not yet had an adequate opportunity
to deal with the complaint;
or
(e) in the case of an alleged contravention of a
5 conciliation requirement, the complainant has
made a complaint about the alleged
contravention to the Parliamentary
Commissioner and that complaint is, or has
been, the subject of an investigation under the
10 Parliamentary Commissioner Act 1971.
".
(2) Section 67(2) is amended by deleting "in writing, of the
decision and the reasons for the decision." and inserting
instead --
15 "
by notice in writing, of --
(a) the decision; and
(b) the reasons for the decision; and
(c) the rights, if any, of the complainant under
20 section 67B.
".
24. Sections 67A and 67B inserted
After section 67 the following sections are inserted --
"
25 67A. Referral of complaint to agency in certain
circumstances
(1) If --
(a) the Commissioner has given a complainant a
notice under section 67(2); and
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s. 24
(b) the reason for the Commissioner's decision is a
reason referred to in section 67(1)(c) or (d)(ii)
or (iii),
the Commissioner has to --
5 (c) refer the complaint to the agency and ask the
agency to deal with, or continue to deal with,
the complaint; and
(d) notify the complainant in writing of the referral.
(2) If a complaint is referred under subsection (1) --
10 (a) the agency has to deal with, or continue to deal
with, the complaint (the "initial complaint");
and
(b) the complainant is not entitled to make another
complaint to the Commissioner about the
15 access or amendment decision or alleged
contravention of a conciliation requirement that
is the subject of the initial complaint unless --
(i) the agency has notified the complainant
in writing that the agency has finished
20 dealing with the initial complaint; or
(ii) a period of 3 months has elapsed since
the referral of the initial complaint.
67B. Referral of complaint to State Administrative
Tribunal if Commissioner decides not to deal with it
25 (1) If --
(a) the Commissioner has given a complainant a
notice under section 67(2); and
(b) the reason for the Commissioner's decision is a
reason referred to in section 67(1)(a), (b), (d)(i)
30 or (e),
the complainant may require the Commissioner to refer
the complaint to the Tribunal.
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Freedom of Information Amendment Bill 2007
s. 25
(2) A requirement under subsection (1) is to be made by
notice in writing served on the Commissioner within
the period of 21 days after the complainant receives the
notice under section 67(2).
5 (3) On receipt of a notice under subsection (2), the
Commissioner has to refer the complaint to the
Tribunal.
".
25. Section 69 amended
10 (1) Section 69(1) is repealed and the following subsection is
inserted instead --
"
(1) Each of the following is a party to conciliation
proceedings --
15 (a) the complainant;
(b) the agency;
(c) a person joined as a party under subsection (2)
or (3).
".
20 (2) Section 69(4) is amended by deleting "a decision made on the
complaint" and inserting instead --
" the outcome of conciliation proceedings ".
26. Section 70 amended
(1) Section 70(2) is amended by deleting "Proceedings" and
25 inserting instead --
" Conciliation proceedings ".
(2) Section 70(3) is amended by deleting "a complaint" and
inserting instead --
" conciliation proceedings ".
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s. 26
(3) Section 70(4) and (5) are repealed and the following subsections
are inserted instead --
"
(4) The Commissioner may determine the procedure for
5 conciliation proceedings and may give such directions
and do such other things as the Commissioner thinks fit
in order to deal with the complaint.
(5) Without limiting subsection (4), the Commissioner
may --
10 (a) require the parties, or any of them, to appear
before the Commissioner, either separately or
together;
(b) nominate a person (a "conciliator") to deal
with the complaint.
15 (5a) A conciliator --
(a) may require the parties, or any of them, to
appear before the conciliator, either separately
or together; but
(b) does not have power to require information or
20 documents to be given or produced.
".
(4) Section 70(6) is repealed and the following subsections are
inserted instead --
"
25 (6) If a party is required or permitted to appear in
conciliation proceedings, the party --
(a) is entitled to appear personally or by an agent
other than a solicitor or counsel; or
(b) may, by leave of the Commissioner, be
30 represented by a solicitor or counsel.
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Freedom of Information Amendment Bill 2007
s. 27
(7) No person other than a solicitor or counsel is entitled to
demand or receive any fee or reward for representing a
party in conciliation proceedings.
(8) If the complaint is referred to the Tribunal, evidence of
5 anything said or done in conciliation proceedings is not
admissible before the Tribunal.
".
27. Section 71 replaced
Section 71 is repealed and the following section is inserted
10 instead --
"
71. Conciliation proceedings record
(1) If a complaint is resolved by conciliation the
Commissioner, in consultation with the parties to the
15 conciliation proceedings, has to prepare a document
that sets out --
(a) the terms on which the complaint is resolved;
and
(b) any requirement that is to be complied with by
20 the agency (a "conciliation requirement").
(2) Without limiting subsection (1)(b) a conciliation
requirement may consist of --
(a) a requirement to do a particular thing within a
particular period; or
25 (b) a requirement not to do a particular thing.
(3) If the Commissioner is of the opinion that --
(a) a complaint cannot be resolved by conciliation;
or
(b) the Commissioner's endeavours to resolve a
30 complaint by conciliation have not been
successful; or
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Freedom of Information Amendment Bill 2007
s. 28
(c) the nature of a complaint is such that it should
be referred to the Tribunal,
the Commissioner has to prepare a document that
includes a statement of the Commissioner's opinion
5 under paragraph (a), (b) or (c).
(4) The Commissioner has to give a copy of a document
prepared under subsection (1) or (3) to each party to
the conciliation proceedings.
(5) If the Commissioner has given a complainant a copy of
10 a document prepared under subsection (3), the
Commissioner has to inform the complainant in writing
of the complainant's rights under section 76.
".
28. Section 74 amended
15 Section 74(2) is amended by deleting "a decision on a complaint
or in reasons given for the decision." and inserting instead --
" the conciliation proceedings record. ".
29. Section 75 amended
(1) Section 75(1) is amended as follows:
20 (a) by deleting "The" and inserting instead --
" In dealing with a complaint the ";
(b) by deleting "decide" and inserting instead --
" consider ".
(2) After section 75(2) the following subsection is inserted --
25 "
(3) If the complaint is referred to the Tribunal,
subsection (2) has effect subject to section 77.
".
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s. 30
30. Sections 76, 77 and 78 replaced
Sections 76 to 78 are repealed and the following sections are
inserted instead --
"
5 76. Referral of unresolved complaint to State
Administrative Tribunal
(1) If the Commissioner has given a complainant a copy of
a conciliation proceedings record prepared under
section 71(3), the complainant may require the
10 Commissioner to refer the complaint to the Tribunal.
(2) A requirement under subsection (1) is to be made by
notice in writing served on the Commissioner within
the period of 21 days after the complainant receives the
copy of a conciliation proceedings record prepared
15 under section 71(3).
(3) On receipt of a notice under subsection (2), the
Commissioner has to refer the complaint to the
Tribunal.
77. Provision of information to State Administrative
20 Tribunal
(1) If a complaint is referred to the Tribunal under
section 67B or 76, the Commissioner is to provide the
following to the Tribunal --
(a) a statement of the reasons for referring the
25 complaint to the Tribunal;
(b) other documents and other material in the
Commissioner's possession or under the
Commissioner's control and relevant to the
Tribunal's consideration of the complaint.
30 (2) In the case of a referral under section 76,
subsection (1)(b) extends to a copy of the conciliation
proceedings record but does not extend to a document
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s. 31
that records anything said or done in the conciliation
proceedings.
(3) Subsection (1) does not affect the agency's obligation
to provide a statement, documents and material to the
5 Tribunal under the State Administrative Tribunal
Act 2004 section 24.
".
31. Section 79 replaced
Section 79 is repealed and the following section is inserted
10 instead --
"
79. Delegation
(1) The Commissioner may delegate to a member of the
staff of the Commissioner any power or duty of the
15 Commissioner under another provision of this Act
other than section 67(1), 67B(3), 75 or 76(3).
(2) The delegation must be in writing signed by the
Commissioner.
(3) A person to whom a power or duty is delegated under
20 this section cannot delegate that power or duty.
(4) A person exercising or performing a power or duty that
has been delegated to the person under this section, is
to be taken to do so in accordance with the terms of the
delegation unless the contrary is shown.
25 (5) Nothing in this section limits the ability of the
Commissioner to perform a function through an officer
or agent.
".
page 23
Freedom of Information Amendment Bill 2007
s. 32
32. Section 81 amended
(1) Section 81(1) and (2) are amended by inserting after
"Division" --
" 2 or ".
5 (2) Section 81(3) is amended by deleting "a complaint" and
inserting instead --
" conciliation proceedings ".
33. Section 82 amended
(1) After section 82(1) the following subsections are inserted --
10 "
(1a) Except as required for the purposes of proceedings
arising under or in relation to this Act, a person who is
or has been the Commissioner, the Acting
Commissioner or member of the staff of the
15 Commissioner cannot be required to disclose
confidential information in court or in any judicial
proceedings.
(1b) The Commissioner, the Acting Deputy Commissioner
or a member of the staff of the Commissioner
20 authorised for the purposes of this subsection by the
Commissioner may disclose confidential information
to --
(a) the Parliamentary Commissioner; or
(b) the Deputy Parliamentary Commissioner; or
25 (c) a member of the Parliamentary Commissioner's
staff authorised for the purposes of this
paragraph by the Parliamentary Commissioner,
if the information concerns a matter that is relevant to
the functions of the Parliamentary Commissioner.
30 (1c) Subsection (1b) does not authorise the disclosure of
exempt matter.
".
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s. 34
(2) Section 82(2)(a) is amended by deleting "or another written
law" in both places where it occurs and, in the second place,
inserting instead --
" or as authorised by subsection (1b) ".
5 34. Section 83 amended
Section 83 is amended as follows:
(a) by inserting after "Division" --
" 2 or ";
(b) in paragraph (a) by inserting after "information" --
10 " to the Commissioner ";
(c) in paragraph (b) by inserting after "document" --
" to the Commissioner ".
35. Section 84 repealed
Section 84 is repealed.
15 36. Part 4 Division 5, heading to Part 4 Division 6 and section 88
replaced
Part 4 Division 5, the heading to Part 4 Division 6 and
section 88 are repealed and the following Division, heading and
sections are inserted instead --
20 "
Division 5 -- State Administrative Tribunal's jurisdiction as
to complaints
84. Meaning of "complaint jurisdiction"
In this Division --
25 "complaint jurisdiction" means --
(a) the Tribunal's original jurisdiction as defined
in the State Administrative Tribunal
Act 2004 section 3(1) in relation to an
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s. 36
alleged contravention of a conciliation
requirement that is the subject of a complaint
referred to the Tribunal under section 67B
or 76; or
5 (b) the Tribunal's review jurisdiction, as defined
in the State Administrative Tribunal
Act 2004 section 3(1), in relation to an
access or amendment decision that is the
subject of a complaint referred to the
10 Tribunal under section 67B or 76.
85. Presiding member of Tribunal
(1) When the Tribunal is exercising its complaint
jurisdiction its presiding member has to be a legally
qualified member.
15 (2) Terms used in subsection (1) relating to members of
the Tribunal have the meanings given to them in the
State Administrative Tribunal Act 2004 section 3(1).
86. Tribunal to ensure non-disclosure of certain matter
(1) In conducting a proceeding in its complaint jurisdiction
20 the Tribunal has to avoid the disclosure of --
(a) exempt matter; or
(b) information as to the existence or non-existence
of a document containing matter exempt under
clause 1, 2 or 5 of Schedule 1.
25 (2) If it is necessary to do so in the interests of justice, the
Tribunal may by order permit a solicitor or counsel
representing a party to a proceeding in its complaint
jurisdiction to examine a document to which the
proceeding relates.
30 (3) Permission may be given under subsection (2) on such
terms and conditions as the Tribunal thinks fit.
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s. 36
(4) Without limiting subsection (3), permission may be
given under subsection (2) on the condition that the
solicitor or counsel does not disclose, to a party to the
proceeding or to another person, exempt matter or
5 matter of a kind referred to in subsection (1)(b).
(5) If in the opinion of the Tribunal it is necessary to do so
in order to prevent disclosure of exempt matter or
matter of a kind referred to in subsection (1)(b) the
Tribunal may receive evidence and hear argument in
10 the absence of the public and any party or person
representing a party.
(6) The Tribunal is not to include exempt matter, or
information of a kind referred to in subsection (1)(b) in
its decision in a proceeding in its complaint jurisdiction
15 or in reasons given for the decision.
(7) If the question of whether or not a document is a
document of the agency is in issue, subsections (1) to
(6) apply to the contents of the document as if those
contents were exempt matter.
20 87. Decisions of the Tribunal
(1) In a proceeding in its complaint jurisdiction in relation
to an access or amendment decision, the Tribunal has,
in addition to any other power it has under this Act or
the State Administrative Tribunal Act 2004, power
25 to --
(a) review any decision that has been made by the
agency in respect of the access application or
application for amendment; and
(b) decide any matter in relation to the access
30 application or application for amendment that
could, under this Act, have been decided by the
agency.
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s. 36
(2) If it is established that a document is an exempt
document, the Tribunal does not have power to make a
decision to the effect that access is to be given to the
document.
5 (3) Unless the Tribunal orders otherwise the Tribunal's
decision under subsection (1) has effect from when it is
made.
(4) In a proceeding in its complaint jurisdiction relating to
an alleged contravention of a conciliation requirement
10 the Tribunal may --
(a) dismiss the complaint; or
(b) find the complaint or any part of it
substantiated and make an order that the agency
comply with the conciliation requirement
15 within the period (if any) specified in the order;
or
(c) find the complaint or any part of it
substantiated but decline to take any further
action in relation to the matter.
20 88. Restrictions under other laws not applicable
(1) No obligation to maintain secrecy or other restriction
on the disclosure of information obtained by or given
to agencies, whether imposed under an enactment or
other law, applies to the disclosure of information to
25 the Tribunal when it is exercising its complaint
jurisdiction.
(2) Legal professional privilege does not apply to the
production of documents or the giving of evidence by
an agency, or an officer of an agency, to the Tribunal
30 when it is exercising its complaint jurisdiction.
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s. 36
88A. Secrecy
In relation to the functions of the Tribunal under or in
connection with this Act, the State Administrative
Tribunal Act 2004 section 157 extends to any
5 information acquired in the performance of those
functions and is not limited to information about the
affairs of a person.
Division 6 -- Appeals from Tribunal's decisions as
to complaints
10 88B. Terms used in this Division
In this Division --
"appeal" means an appeal on any question of law
arising out of any decision of the Tribunal on a
complaint referred to it under section 67B or 76;
15 "Supreme Court" means the General Division of that
court or the Court of Appeal, whichever is
appropriate under the State Administrative
Tribunal Act 2004 section 105.
88C. Appeal from Tribunal's decision
20 (1) An appeal may be brought under the State
Administrative Tribunal Act 2004 section 105.
(2) However there is no appeal in relation to a decision of
the Tribunal as to --
(a) the deferral of the giving of access to a
25 document; or
(b) the charges to be imposed for dealing with the
access application; or
(c) the payment of a deposit under section 18.
(3) The State Administrative Tribunal Act 2004
30 section 106 applies in respect of an appeal.
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88D. No access to exempt document
If it is established that a document is an exempt
document the Supreme Court does not have power to
make a decision to the effect that access is to be given
5 to the document.
".
37. Section 89 amended
(1) Section 89(1) is amended as follows:
(a) by deleting "subsections (2) and (3)" and inserting
10 instead --
" subsection (2) ";
(b) by deleting "in review proceedings" and inserting
instead --
" on an appeal ".
15 (2) Section 89(2) is amended by deleting "under section 85".
(3) Section 89(3) is repealed.
38. Section 90 amended
(1) Section 90(1) is amended by deleting "review proceedings the
Court" and inserting instead --
20 " an appeal the Supreme Court ".
(2) After section 90(1) the following subsections are inserted --
"
(1a) If it is necessary to do so in the interests of justice, the
Supreme Court may by order permit a solicitor or
25 counsel representing a party to an appeal to examine a
document to which the appeal relates.
(1b) Permission may be given under subsection (1a) on such
terms and conditions as the Supreme Court thinks fit.
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s. 39
(1c) Without limiting subsection (1b), permission may be
given under subsection (1a) on the condition that the
solicitor or counsel does not disclose, to a party to the
appeal or to another person, exempt matter or matter of
5 a kind referred to in subsection (1)(b).
".
(3) Section 90(3) is amended by deleting "in review proceedings"
and inserting instead --
" on an appeal ".
10 (4) Section 90(4) is amended by deleting ", (2) and" and inserting
instead --
" to ".
39. Section 91 amended
(1) Section 91(1) is amended by deleting "review proceedings" and
15 inserting instead --
" an appeal ".
(2) Section 91(2) is repealed.
(3) Section 91(3) is amended by deleting "review proceedings
have" and inserting instead --
20 " appeal has ".
40. Section 92 amended
Section 92(1) and (2) are amended by deleting "review
proceedings." and inserting instead --
" an appeal. ".
25 41. Section 93 amended
Section 93 is amended by deleting "review proceedings" and
inserting instead --
" an appeal ".
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s. 42
42. Section 98 amended
Section 98(b) is deleted and the following paragraph is inserted
instead --
"
5 (b) on behalf of a person with a mental disability
by the person's nearest relative or guardian.
".
43. Section 103 amended
Section 103(b) is deleted.
10 44. Section 104 amended
Section 104(1) is amended by inserting after "the decision to be
made" --
"
or, in good faith, decides not to claim that a document
15 is an exempt document or not to delete exempt matter
from a copy of a document
".
45. Section 105 amended
Section 105 is amended by inserting after "the decision to be
20 made" --
"
or, in good faith, decides not to claim that a document
is an exempt document or not to delete exempt matter
from a copy of a document
25 ".
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s. 46
46. Section 106 amended
Section 106(1) is amended by inserting after "for the purposes
of giving effect to this Act" --
"
5 or as the result of a decision made, in good faith, not to
claim that a document is an exempt document or not to
delete exempt matter from a copy of a document
".
47. Section 111 amended
10 Section 111(2) is amended as follows:
(a) by deleting paragraph (h) and inserting instead --
"
(h) the number of complaints received by the
Commissioner; and
15 ";
(b) by deleting paragraph (j) and inserting instead --
"
(j) the number of complaints which the
Commissioner decided under section 67 not to
20 deal with, or to stop dealing with; and
(ja) the number of complaints resolved by
conciliation; and
(jb) the number of complaints referred to the
Tribunal; and
25 (jc) details of any review under section 63(2)(g)
including --
(i) the outcome of the review; and
(ii) any recommendations made as a result
of the review; and
30 (iii) any response to those recommendations;
and
";
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s. 48
(c) after each of paragraphs (a) to (g) and (i) by inserting --
" and ".
48. Section 112 amended
Section 112(2) is amended after paragraph (b) by deleting the
5 full stop and inserting --
"
; and
(c) the extent to which --
(i) a fee paid for lodging an access
10 application; or
(ii) an advance deposit paid in relation to an
access application under section 18,
is to or may be refunded to the applicant in the
event of --
15 (iii) the applicant withdrawing the
application or being regarded as having
withdrawn the application; or
(iv) the agency refusing to deal with the
application.
20 ".
49. Section 113 replaced
Section 113 is repealed and the following section is inserted
instead --
"
25 113. Review of Act
(1) In this section --
"review day" means the expiry day of a period of
5 years after --
(a) the day of the coming into operation of the
30 Freedom of Information Amendment
Act 2007 section 49; or
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s. 50
(b) the day on which a report is tabled in the
Legislative Assembly under subsection (3).
(2) The Minister is to carry out a review of the operation
and effectiveness of this Act as soon as is practicable
5 after each review day.
(3) The Minister is to prepare a report based on each
review and is to cause the report to be tabled before
each House of Parliament as soon as is practicable after
it is prepared.
10 ".
50. References to "closest relative" altered
The Act is amended in each place listed in the Table to this
section by deleting "closest" and inserting instead --
" nearest ".
15 Table
s. 32(2)(b) s. 32(4) (both places)
s. 32(3) s. 45(2) (both places)
51. References to "intellectually handicapped person" altered
The Act is amended in each place listed in the Table to this
section by deleting "an intellectually handicapped person" and
inserting instead --
20 " a person with a mental disability ".
Table
s. 23(5) s. 32(4)
52. Schedule 1 amended
(1) Schedule 1 clause 5(2) is amended as follows:
(a) in paragraph (a) by deleting "Bureau of Criminal
25 Intelligence, Protective Services Unit" and inserting
instead --
" State Intelligence Division, Dignitary Protection Unit ";
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s. 52
(b) in paragraph (b) by inserting after "Unit" --
" or Justice Intelligence Service ".
(2) Schedule 1 clause 8(1) is amended by deleting "be a breach of
confidence for which a legal remedy could be obtained." and
5 inserting instead --
" found an action for breach of confidence. ".
(3) Schedule 1 clause 8(3) is amended by deleting "enable a legal
remedy to be obtained" and inserting instead --
" found an action ".
10 (4) After Schedule 1 clause 15 the following clause is inserted --
"
16. Information protected by Aboriginal tradition
Exemption
(1) Matter is exempt matter if its disclosure to any person or
15 class of persons is prohibited by Aboriginal tradition.
Limit on exemption
(2) Matter is not exempt matter under subclause (1) if its
disclosure would, on balance, be in the public interest.
Definition
20 (3) In this clause --
"Aboriginal tradition" means the body of traditions,
observances and customs of Aboriginal people
generally or of a particular community or group of
Aboriginal people.
25 ".
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s. 53
53. Schedule 2 amended
Schedule 2 is amended as follows:
(a) by inserting before the item "The State Government
Insurance Corporation." --
5 "
The State Administrative Tribunal.
";
(b) by deleting "The Bureau of Criminal Intelligence,
Protective Services Unit," and inserting instead --
10 "
The State Intelligence Division, Dignitary Protection Unit,
".
(c) by inserting after "The Internal Investigations Unit" --
" or Justice Intelligence Service ".
15 54. Glossary amended
(1) The Glossary clause 1 is amended as follows:
(a) by deleting the definition of "exemption certificate";
(b) by inserting in the appropriate alphabetical positions --
"
20 "access or amendment decision" means a decision
mentioned in section 65(1) or (3);
"action" has the meaning given in the Limitation Act 2005
section 3(1);
"complaint" means a complaint under section 65;
25 "conciliation proceedings" means proceedings conducted
by the Commissioner to deal with a complaint;
"conciliation proceedings record" means a document
prepared under section 71(1) or (3);
"conciliation requirement" has the meaning given in
30 section 71(1)(b);
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s. 54
"conciliator" has the meaning given in section 70(5)(b);
"deal with" a complaint has, in the case of the
Commissioner, the meaning given in section 62A(1);
"judicial office" includes an office as a member of a
5 tribunal;
"mental disability" has the meaning given in the
Guardianship and Administration Act 1990
section 3(1);
"nearest relative" has the meaning given in the
10 Guardianship and Administration Act 1990
section 3(1);
"Tribunal" means the State Administrative Tribunal.
";
(c) in the definition of "Corrective Services" by deleting
15 "the division concerned with corrective services in";
(d) in the definition of "principal officer" by inserting after
paragraph (d) --
"
(da) in relation to a court -- an officer of the court
20 declared by rules of court or the regulations to be
the principal officer of the court (not being a
person holding a judicial office or an office the
functions of which include judicial functions);
";
25 (e) in paragraph (e) of the definition of "principal officer"
by inserting after "being" --
" a court or ";
(f) in the definition of "third party" by deleting "33." and
inserting instead --
30 " 33; ".
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s. 54
(2) After the Glossary clause 2(4) the following subclause is
inserted --
"
(5) If a division, unit or service mentioned in subclause (2)
5 or (3) is renamed, a reference in this Act to that division,
unit or service includes a reference to it as so renamed.
".
(3) The Glossary is amended in each place listed in the Table to this
subsection by deleting "Bureau of Criminal Intelligence,
10 Protective Services Unit" and inserting instead --
" State Intelligence Division, Dignitary Protection Unit ".
Table
cl. 2(2) cl. 6(1)
(4) The Glossary is amended in each place listed in the Table to this
subsection by inserting after "Unit" --
15 " or Justice Intelligence Service ".
Table
cl. 2(3) cl. 6(2)