EXPLANATORY STATEMENT
1983 NO 84
Subject: FREEDOM OF INFORMATION ACT 1982
FREEDOM OF INFORMATION (DOCUMENT REVIEW TRIBUNAL) REGULATIONS
The Freedom of Information (Document Review Tribunal) Regulations are made under sections 85 and 94 of the Freedom of Information Act 1982 (Act No. 3 of 1982) which came into operation on 1 December 1982.
2. Section 85 provides for the making of regulations, not inconsistent with the Act, to apply, subject to such exceptions or modifications as are specified in the regulations, all or any of certain provisions of the Administrative Appeals Tribunal Act 1975 to and in relation to a proceeding before the Document Review Tribunal. The Document Review Tribunal is established by section 71 of the Freedom of Information Act.
3. Section 94 of the Act provides for the making of regulations prescribing all matters that are permitted to be prescribed or are necessary or convenient to be prescribed to give effect to the Act. Regulations 4, 5, 6 and 7 which provide for a seal of the Document Review Tribunal hours of the Registrar’s office, summons and witnesses expenses, respectively, are necessary or convenient to be prescribed to give effect to the Act.
4. Notes on Regulations are attached.
ATTACHMENT
NOTES ON REGULATIONS
Regulation 1 - Citation
Regulation 1 provides that the Regulations may be cited as the Freedom of Information (Document Review Tribunal) Regulations.
Regulation 2 - Interpretation
2. Regulation 2 defines the words “President”, “Registrar”, “Deputy Registrar” and “the Act” used in the Regulations to mean, respectively, the President of the Document Review Tribunal, the Registrar of the Document Review Tribunal, the Deputy Registrar of the Document Review Tribunal and the Freedom of Information Act 1982.
Regulation 3 - Application of Administrative Appeals Tribunal Act to proceeding before Document Review Tribunal
3. Sub-regulation 3(1) provides that, subject to sub-regulation 3(2), the provisions of the Administrative Appeals Tribunal Act 1975 specified in section 85 of the Freedom of Information Act apply to and in relation to a proceeding before the Document Review Tribunal.
4. Sub-regulation 3(2) provides that the provisions applied by sub-regulation 3(1) shall be taken to be in the terms in which they are set out in Schedule 1 to the Regulations and are, in their application to a proceeding of the Document Review Tribunal, modified accordingly.
Regulation 4 - Seal of the Tribunal
5. Regulation 4 makes provision for the seal of the Document Review Tribunal.
Regulation 5 - Hours of Registrar’s office
6. Sub-Regulation 5 (1) prescribes the hours of business of the Registrar and Deputy Registrars offices.
Sub-Regulations 5(2) and 5(3) provide for the President to direct that the offices be open at other times.
Regulation 6 - Summons
7. Regulation 6 provides that the form of the summons requiring a person to appear before the Document Review Tribunal to give evidence or to produce documents shall be in accordance with the form in Schedule 2. Regulation 5 also specifies the manner of service of such a summons.
Regulation 7 - Witnesses Expenses
8. Regulation 7 provides that a witness shall be paid such fees, and allowances for expenses, in respect of his attendance as the President determines in accordance with the scale of fees and allowances in Schedule 2 to the Administrative Appeals Tribunal Regulations.
Schedule 1
8. Schedule 1 sets out in full certain provisions of the Administrative Appeals Tribunal Act, as modified, for the purposes of their application to and in relation to a proceeding of the Document Review Tribunal. Those provisions are:
Representation before Tribunal
Section 32 is applied without modification. Section 32 provides that a party to a proceeding before the Document Review Tribunal may appear in person or may be represented by some other person.
Procedure of Tribunal
Sub-section 33(1) is applied without modification except that it is made subject to the Freedom of Information Act and the applied provisions of the Administrative Appeals Tribunal Act.
Sub-section 33(1) provides that the procedure of the Document Review Tribunal is, subject to the applied provisions of the Administrative Appeals Tribunal Act and the Freedom of Information Act, within the discretion of the Tribunal, that proceedings shall be conducted with as little formality and technicality and with as much expedition as is permissible and that the Tribunal is not bound by the rules of evidence.
Sub-sections 33(2) to (5) make provision for the President or the member presiding to give directions as to the procedure to be followed at or in connection with a hearing. These sub-sections are applied without modification.
Hearing of proceedings before the Tribunal
Applied section 35 is a modification of section 35 of the Administrative Appeals Tribunal Act,
Sub-section 35(1) provides that the Document Review Tribunal shall sit in private to receive evidence or information from a Minister, an agency or an officer of an agency (including a body which would but for the operation of sub-section 7(1) of the Freedom of Information Act be an agency) or to hear submissions by or on behalf of an agency or Minister with respect to a claim that a document to which access has been refused and in respect of which there is in force a certificate is an exempt document. The sub-section further provides that, subject to sub-section 35(2), other hearings may be in public.
In respect of a proceeding required by sub-section 35(1) to be in private, sub-section 35(1A) permits the Document Review Tribunal to give directions as who may be present at a hearing and requires it to give directions prohibiting the publication of evidence or information given and submissions made at such a hearing.
Sub-section 35(2) enables the Tribunal to decide, in respect of proceedings other than those required to be heard in private by sub-section 35(1), that a proceeding or any part of a proceeding before it should take place in private. Sub-section 35(2) also enables the Tribunal to prohibit or restrict the publication of evidence or information given before it or the contents of a document produced to it. The Tribunal may prohibit or restrict the disclosure of evidence, information or the contents of a document to some or all of the parties to a proceeding.
Sub-section 35(3) requires the Tribunal to exercise its powers under sub-sections 35(1A) and 35(2) in such a manner as to ensure that exempt matter contained in a document to which the proceeding relates, or information as to the existence or non-existence of particular documents that would make a document exempt under section 33 or 37(1) of the Freedom of Information Act, is not disclosed to the applicant.
Sub-section 35(4) provides that a direction given under paragraph 35 (1A)(b) or (2)(b) does not prevent a Minister, an agency, or a body or the person referred to in sub-section 7(1) of the Freedom of Information Act, from disclosing any matter contained in evidence or information given, in a submission made or in a document, to the Tribunal.
Certain documents and information not required to be disclosed
Sub-section 36(1) is applied without modification. It enables the Attorney-General to certify that the disclosure of information concerning a matter or the disclosure of the contents of a document would be contrary to the public interest for the reasons set out in the sub-section.
Sub-section 36(2) requires a person who is required to disclose the information or to produce the document to the Tribunal to do so, even though the Attorney-General’s certificate has been given. The Tribunal is however required, subject to sub-section 36(3), not to disclose the information or the contents of the document to any person other than members of the Tribunal and in the case of a document to ensure its return to the person by whom it was furnished. This sub-section has been modified by the inclusion of a reference to the forwarding of documents to the Document Review Tribunal by the Administrative Appeals Tribunal.
Sub-section 36(3) enables the Tribunal, where the Attorney-General’s certificate has been given for reasons other than those set out in paragraphs (a) or (b) of sub-section 36(1) to decide for itself whether or not the disclosure of the information or the contents of a document would be contrary to the public interest. It may if it so decides make the information available to the parties or permit the parties to inspect the documents specified in the Attorney-General’s certificate.
Sub-section 36(4) sets out the balance of interests that must be considered by the Tribunal in deciding under sub-section 36(3) whether or not information or the contents of a document should be disclosed to the parties.
Sub-section 36(4AA) provides that nothing in sub-sections 36(3) or (4) shall be taken to authorise the Tribunal to disclose, or to permit the disclosure of, exempt matter to which the proceedings relate or information as to the existence or non-existence of particular documents which would make a document exempt under section 33 or 37(1) of the Freedom of Information Act.
Sub-section 36(4A) provides that nothing in section 36 prevents the disclosure of information or matter contained in a document to a member of the staff of the Tribunal in the course of his duties.
Sub-sections 36(3), (4) and (4A) have been applied unmodified. Sub-section 36(4AA) is a new provision.
Certain questions not required to be answered
Section 36A makes like provision in respect of oral evidence to that contained in section 36 with respect to documentary evidence.
Opportunity to make submissions concerning evidence
Subject to any requirements of confidentiality imposed by sections 35, 36 and 36A as applied and sub-section 63(2) of the Freedom of Information Act, section 39 provides that every party to a proceeding before the Tribunal is to be given an opportunity to present his case and to inspect any document to which the Tribunal proposes to have regard and to make submissions in relation to those documents. Section 39 is modified by the inclusion of a reference to section 36A and the Freedom of Information Act.
Powers of the Tribunal
Section 40 has been applied without modification. Sub-section 40(1) enables the Tribunal to take evidence on oath, to proceed in the absence of a party who has had reasonable notice of the proceeding and to adjourn the proceeding from time to time.
Sub-section 40(1A) provides for the Registrar or a Deputy Registrar, if directed by the Tribunal, to summon a person to appear to give evidence or to produce documents.
Sub-sections 40(2) and (3) provide for the Tribunal to require a person appearing before the Tribunal to take an oath or make an affirmation and to administer that oath or affirmation.
Sub-section 40(4) makes provision for a person summoned to appear before the Tribunal to request legal representation.
Sub-sections 40(5) and (6) provide that, in addition to the member presiding or a person authorised by him taking evidence, the Tribunal may authorise a member or other person to take evidence on its behalf inside or outside Australia.
Manner in which questions to be decided
Sub-section 42(2) has been applied without modification. Sub-section 42(2) sets down the criteria for determining which opinion is to prevail when members are divided. If there is a majority of one opinion, then the question is to be decided according to the opinion of the majority. If members are equally divided on opinion, the opinion of the member presiding prevails.
Power of Tribunal to dismiss application or strike out party
Sub-section 42A(1) empowers the Tribunal, by consent of all parties, to dismiss an application. This sub-section is modified to refer to the particular type of proceedings concerned.
Sub-section 42A(2) empowers the Tribunal in circumstances where a party who has been notified that he is required to appear fails to appear to strike him out as a party. This sub-section has been modified so that an applicant may be struck out only if the Tribunal has notified him that he is required to appear.
Review by Tribunal
Sub-sections 43(2) to (5) have been applied without modification.
Sub-section 43(2) provides for the Tribunal to give its reasons for decision either orally or in writing. Where oral reasons are given, a party may request the Tribunal to furnish a statement in writing of the reasons for its decision and such a statement must be furnished within 28 days. Where the Tribunal gives written reasons for decision, those reasons are to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
Sub-section 43(3) requires the Tribunal to cause a copy of the decision to be served on each party to the proceeding.
Sub-section 43(4) provides for a copy of decision of the Tribunal certified to be a copy of such a decision to be evidence of the Tribunal’s decision.
Sub-section 43(5) applies sub-sections (3) and (4) in respect of the Tribunal’s decisions to the Tribunal’s reasons for decision.
Schedule 2
9. Schedule 2 sets out the form of summons to be used by the Registrar or a Deputy Registrar to summon a person pursuant to sub-section 40(1A).