Statutory Rules 1983 No. 841
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Freedom of Information (Document
Review Tribunal) Regulations
I, THE
GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of
the Federal Executive Council, hereby make the following Regulations under the Freedom of Information Act 1982.
Dated
22 June 1983.
N. M. STEPHEN
Governor-General
By
His Excellency’s Command,
GARETH EVANS
Attorney-General
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Citation
1. These Regulations may be cited as
the Freedom of Information (Document Review Tribunal) Regulations.
Interpretation
2. In these Regulations, unless the
contrary intention appears—
“Deputy
Registrar” means a Deputy Registrar of the Document Review Tribunal;
“President”
means the President of the Document Review Tribunal;
“Registrar”
means the Registrar of the Document Review Tribunal;
“the
Act” means the Freedom of Information Act
1982.
Application
of Administrative Appeals Tribunal Act to proceeding before Document Review
Tribunal
3. (1) Subject to sub-regulation (2), the
provisions of the Administrative Appeals
Tribunal Act 1975 specified in section 85 of the Act apply to and in
relation to a proceeding before the Document Review Tribunal.
(2) For the purposes of the
application of the provisions of the Administrative
Appeals Tribunal Act 1975 by virtue of sub-regulation (1), those provisions
shall be taken to be in the terms set out in Schedule 1 and those provisions
are, in that application, modified accordingly.
Seal
of the Tribunal
4. (1) The seal of the Document Review
Tribunal shall be of a design approved by the President and shall include—
(a) the Coat of Arms of the
Commonwealth of Australia, that is to say, the armorial ensigns and supporters
granted to the Commonwealth by Royal Warrant dated 19 September 1912; and
(b) the words “Document Review
Tribunal”.
(2) There shall be kept at each
Registry, in such custody as the President directs, a seal of the Tribunal, and
any of those seals may be used as the seal of the Tribunal.
(3) The seal of the Tribunal shall be
affixed by or with the authority of the Tribunal to such documents as are
required by a direction of the President to be sealed with the seal of the
Tribunal.
Hours
of Registrar’s office
5. (1) Subject to sub-regulation (2), the
office of the Registrar and each Deputy Registrar shall be open for business on
every day, other than a Saturday, a Sunday or a day that is observed as a
holiday in the Australian Public Service by virtue of section 76 of the Public Service Act 1922 in the place
where the office is situated, from 9.30 o’clock in the morning until 1.00 o’clock
in the afternoon and from 2.00 o’clock in the afternoon until 4.00 o’clock in
the afternoon.
(2) The President may direct that an
office referred to in sub-regulation (1) shall be open for business at times
other than those referred to in that sub-regulation, and that office shall be
open for business at those times.
(3) A direction by the President under
sub-regulation (2) may be expressed to apply—
(a)
generally; or
(b)
to a period specified in the direction.
Summons
6. A summons under sub-section 40 (1a) of the Administrative Appeals Tribunal Act 1975, in its application to a
proceeding before the Document Review Tribunal—
(a) shall be in
accordance with the form in Schedule 2; and
(b) shall be served
on a person by—
(i) delivering a copy of the
summons to the person personally; and
(ii) showing the original of the
summons to the person at the time at which the copy is delivered to him.
Witnesses
expenses
7. A person summoned to appear as a
witness before the Document Review Tribunal shall be paid such fees, and
allowances for expenses, in respect of his attendance, in accordance with the
scale in Schedule 2 to the Administrative Appeals Tribunal Regulations as in
force from time to time, as determined by the President.
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SCHEDULE 1
Regulation 3
Representation
before Tribunal
32. At the hearing of a proceeding
before the Document Review Tribunal, a party to the proceeding may appear in
person or may be represented by some other person.
Procedure
of Tribunal
33. (1) In a proceeding before the
Document Review Tribunal—
(a) the procedure of the Tribunal
is, subject to sections 32, 33, 35, 36, 36a,
39, 40, 42, 42a and 43 in their
application to a proceeding before the Document Review Tribunal, and to the Freedom of Information Act 1982, within
the discretion of the Tribunal;
(b) the proceeding shall be
conducted with as little formality and technicality, and with as much
expedition, as the requirements of the Freedom
of Information Act 1982 and a proper consideration of the matters before
the Tribunal permit; and
(c) the Tribunal is not bound by
the rules of evidence but may inform itself on any matter in such manner as it
thinks appropriate.
(2) For the purposes of sub-section
(1), directions as to the procedure to be followed at or in connection with the
hearing of a proceeding before the Tribunal may be given—
(a) where the hearing of the
proceeding has not commenced—by the President or by a member authorized by the
President to give directions for the purposes of this paragraph; and
(b) where the hearing of the
proceeding has commenced—by the member presiding at the hearing or by any other
member authorized by the member presiding to give such directions.
(3) A direction as to the procedure to
be followed at or in connection with the hearing of a proceeding before the
Tribunal may be varied or revoked at any time by any member empowered in
accordance with this section to give such a direction in relation to the
proceeding at that time.
SCHEDULE 1—continued
(4)
An authorization by the President under this section to give directions as to
the procedure to be followed at or in connection with the hearing of a
proceeding may be of general application or may relate to the hearing of a
particular proceeding or particular proceedings or to proceedings included
within a class or classes of proceedings.
(5)
The President may at any time vary or revoke an authorization under this
section.
Hearing
of proceedings before the Tribunal
35. (1)
At the hearing of a proceeding before the Document Review Tribunal in respect
of a question referred to the Tribunal in relation to a document to which an
agency or Minister has refused to grant access in accordance with a request
under the Freedom of Information Act
1982, the Tribunal—
(a)
shall hold in private the hearing of any part of the proceeding during which
evidence or information is given, or a document produced, to the Tribunal by—
(i)
an agency or an officer of an agency;
(ii)
a Minister or a member of the staff of a Minister; or
(iii)
a member, an officer, or a member of the staff, of a body referred to in
sub-section 7 (1) of the Freedom of
Information Act 1982 or the person referred to in that sub-section,
or during which a submission is
made to the Tribunal by or on behalf of an agency or Minister, being a
submission in relation to the claim—
(iv)
in the case of a document in respect of which there is in force a certificate
under section 33, 34 or 35 of the Freedom
of Information Act 1982— that the document is an exempt document; or
(v)
in the case of a document in respect of which there is in force a certificate
under section 36 of the Freedom of
Information Act 1982— that the disclosure of the document would be contrary
to the public interest; and
(b)
subject to sub-section (2), may hold the hearing of any other part of the
proceeding in public.
(1a) Where the
hearing of any part of a proceeding before the Document Review Tribunal is held
in private in accordance with paragraph (1) (a), the Tribunal—
(a)
may, by order, give directions as to the persons who may be present at that
hearing; and
(b)
shall give directions prohibiting the publication of -
(i)
any evidence or information given to the Tribunal;
(ii)
the contents of any documents lodged with, or received in evidence by, the
Tribunal; and
(iii)
any submission made to the Tribunal,
at
that hearing.
(2)
Where the Document Review Tribunal is satisfied that it is desirable to do so
by reason of the confidential nature of any evidence, information or matter or
for any other reason, the Tribunal may, by order
(a)
in a case where the Tribunal directs that the hearing of any part of a
proceeding other than a part referred to in paragraph (1) (a) shall take place
in private, give directions as to the persons who may be present at that
hearing;
(b)
give directions prohibiting or restricting the publication of—
(i)
the contents of any document lodged with the Tribunal, or forwarded to the
Tribunal under section 66 of the Freedom
of Information Act 1982, in relation to a proceeding; or
(ii)
any evidence or information given to the Tribunal (whether in public or in
private), the contents of any document received in evidence by the Tribunal, or
any submission made to the Tribunal, in relation to the proceeding otherwise
than at a hearing held in private in accordance with paragraph (1) (a); or
(c)
give directions prohibiting or restricting the disclosure to some or all of the
parties to a proceeding of evidence given before the Tribunal, or of the
contents of a document lodged with or forwarded to the Tribunal or received in
evidence by the Tribunal, in relation to the proceeding.
SCHEDULE
1—continued
(3) The Document Review Tribunal shall
exercise its powers under sub-section (1 a)
or (2) in such a manner as to ensure that—
(a)
exempt matter within the meaning of the Freedom
of Information Act 1982 contained in a document to which the proceeding
relates; or
(b)
information of the kind referred to in sub-section 25 (1) of the Freedom of Information Act 1982,
is
not disclosed to the applicant.
(4) A direction given by the Document Review Tribunal
at the hearing of a proceeding, being a direction referred to in paragraph (1a) (b) or (2) (b) in respect of the
publication of any evidence, information, submission, or the contents of any
document, received by the Tribunal in relation to the proceeding, does not
prevent a person referred to in sub-paragraph (1) (a) (i), (ii) or (iii) from
disclosing, in the course of the performance of his duties, any matter
contained in that evidence, information, submission or document to any other
person.
Certain
documents and information not required to be disclosed
36. (1)
If the Attorney-General certifies, by writing signed by him, that the
disclosure of information concerning a specified matter, or the disclosure of
any matter contained in a document, would be contrary to the public interest
(a)
by reason that it would prejudice the security, defence or international
relations of Australia;
(b)
by reason that it would involve the disclosure of deliberations or decisions of
the Cabinet or of a Committee of the Cabinet; or
(c)
for any other reason specified in the certificate that could form the basis for
a claim by the Crown in right of the Commonwealth in a judicial proceeding that
the information or the matter contained in the document should not be
disclosed,
the
following provisions of this section have effect.
(2)
A person who is required by or under section 40 in its application to a
proceeding before the Document Review Tribunal, or by or under the Freedom of Information Act 1982, to
disclose the information or to forward or produce to, or lodge with, the
Document Review Tribunal the document in which the matter is contained for the
purposes of a proceeding is not excused from the requirement but the Tribunal
shall, subject to sub-section (3), do all things necessary to ensure that the
information or the matter contained in the document is not disclosed to any
person other than a member of the Tribunal as constituted for the purposes of
the proceeding, and, in the case of a document forwarded or produced to or
lodged with the Tribunal, to ensure the return of the document to the person by
whom it was forwarded, produced or lodged.
(3) Where the Attorney-General has certified
in accordance with sub-section (1) that the disclosure of information, or of
matter contained in a document, would be contrary to the public interest but
the certificate does not specify a reason referred to in paragraph (1) (a) or
(b), the Document Review Tribunal shall consider whether the information or the
matter should be disclosed to all or any of the parties to the proceeding and,
if it decides that the information or the matter should be so disclosed, the
Tribunal shall make the information available or permit the part of the
document containing the matter to be inspected accordingly.
(4)
In considering whether information or matter contained in a document should be
disclosed as mentioned in sub-section (3), the Document Review Tribunal shall
take as the basis of its consideration the principle that it is desirable in
the interest of securing the effective performance of the functions of the
Tribunal that the parties to a proceeding should be made aware of all relevant
matters but shall pay due regard to any reason specified by the
Attorney-General in the certificate as a reason u In the disclosure of the
information or of the matter contained in the document, as the case may be.
would be contrary to the public interest.
(4aa) Nothing
in sub-section (3) or (4) shall be taken as authorizing the Document Review
Tribunal, in the performance of its duties under sub-section (3) in respect of
a proceeding, to disclose, or permit the disclosure of
(a)
exempt matter within the meaning of the Freedom
of Information Act 1982 contained in a document to which the proceeding
relates; or
(b)
information of the kind referred to in sub-section 25 (1) of the Freedom of Information Act 1982,
to
any person other than a member of the Tribunal as constituted for the purposes
of the proceeding.
SCHEDULE
1—continued
(4a) Nothing
in this section prevents the disclosure of information or of matter contained
in a document to a member of the staff of the Document Review Tribunal in the
course of the performance of his duties as a member of the staff of the
Tribunal.
Certain
questions not required to be answered
36a. (1)
Where, at the hearing of a proceeding before the Document Review Tribunal, a
person is asked a question in the course of giving evidence, the
Attorney-General may inform the Tribunal that, in his opinion, the answering of
the question would be contrary to the public interest for a specified reason or
reasons, being a reason or reasons mentioned in sub-section 36 (1).
(2)
Where the Attorney-General so informs the Document Review Tribunal that, in his
opinion, the answering by a person of a question would be contrary to the
public interest, then—
(a)
in the case where the reason specified is, or the reasons specified include, a
reason referred to in paragraph 36 (1) (a) or (b)—the person is excused from
answering the question; or
(b)
in any other case the person is excused from answering the question unless the
answering of the question would not involve the disclosure of—
(i)
exempt matter within the meaning of the Freedom
of Information Act 1982 contained in a document to which the proceeding
relates; or
(ii)
information of the kind referred to in sub-section 25 (1) of the Freedom of Information Act 1982,
and the Tribunal decides that the
answering of the question would not be contrary to the public interest.
(4) The
Attorney-General may appear before the Document Review Tribunal personally, or
may be represented before the Tribunal by a barrister, solicitor or other
person, for the purpose of informing the Tribunal of his opinion in accordance
with this section or he may inform the Tribunal of his opinion by causing a
certificate in writing signed by him setting out his opinion to be sent to the
Tribunal.
Opportunity
to make submissions concerning evidence
39. Subject to sections 35, 36 and 36a in their application to a proceeding
before the Document Review Tribunal, and to sub-section 63 (2) of the Freedom of Information Act 1982 in its
application to the Document Review Tribunal, the Tribunal shall ensure that
every party to a proceeding before the Tribunal is given a reasonable
opportunity to present his case and, in particular, to inspect any documents to
which the Tribunal proposes to have regard in reaching a decision in the
proceeding and to make submissions in relation to those documents.
Powers
of Tribunal
40.(1)
For the purpose of reviewing a decision, the Document Review Tribunal may—
(a)
take evidence on oath or affirmation;
(b)
proceed in the absence of a party who has had reasonable notice of the
proceeding; and
(c)
adjourn the proceeding from time to time.
(1a) For the purposes of the hearing
of a proceeding before the Document Review Tribunal, the Registrar or a Deputy
Registrar of that Tribunal shall, if directed to do so by the President, or by
another member of the Tribunal who is to preside, or presides, at the hearing,
summon a person to appear before the Tribunal at that hearing to give evidence
and to produce such documents (if any) as are referred to in the summons.
(2)
The member who presides at the hearing of a proceeding before the Document
Review Tribunal
(a)
may require a person appearing before the Tribunal at that hearing to give
evidence either to take an oath or to make an affirmation; and
(b)
may administer an oath or affirmation to a person so appearing before the
Tribunal.
(3) 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 he will give to questions asked him will be true.
(4) A person summoned to appear before the
Document Review Tribunal may request that he be represented by counsel or a
solicitor and upon such request being made the Tribunal may allow such person
to be represented.
SCHEDULE
1—continued
(5)
The power of the Document Review Tribunal under paragraph (1) (a) to take
evidence on oath or affirmation may be exercised on behalf of the Tribunal in
relation to a particular proceeding before the Tribunal by the member who is to
preside at the hearing of that proceeding or by another person (whether a
member or not) authorized by the first-mentioned member and that power may be
so exercised within or outside Australia but the Tribunal may direct that the
power is to be exercised subject to limitations specified by the Tribunal.
(6) Where a person other than the member who
is to preside at the hearing of a proceeding is authorized to take evidence in
relation to the proceeding in accordance with sub-section (5)
(a)
the person has, for the purpose of taking that evidence, all the powers of the
Tribunal under sub-section (1) and all the powers under sub-section (2) of the
member who is to preside at the hearing of the proceeding; and
(b)
for the purpose of the exercise of those powers by that person, this Act has
effect (except where the context otherwise requires) as if a reference to the
Tribunal or to the member who is to preside at the hearing of a proceeding
included a reference to that person.
Manner
in which questions to be decided
42.(2) When the members constituting the
Document Review Tribunal for the purposes of a particular proceeding are
divided in opinion as to the decision to be made on any question
(a)
if there is a majority of the one opinion the question shall be decided
according to the opinion of the majority; or
(b)
in any other case the question shall be decided according to the opinion of the
member presiding.
Power
of Tribunal to dismiss proceeding or strike out party
42a. (1) The
Document Review Tribunal may, with the consent of all the parties to a
proceeding before the Tribunal in respect of a question referred to the
Tribunal in relation to a document to which an agency or Minister has refused
to grant access in accordance with a request under the Freedom of Information Act 1982, at any stage of the proceeding,
dismiss the proceeding without deciding the question referred to it.
(2) If
a party to a proceeding before the Document Review Tribunal in respect of a
question referred to the Tribunal (not being the agency or Minister who refused
to grant access to the document in relation to which the question was referred
to the Tribunal) fails either to appear in person or to appear by a
representative at the hearing of the proceeding, being a party who has been
notified by the Tribunal that he is required to appear, the Tribunal may