freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.7
Insert “, person or body” after ‘agency’ in the definition of exempt document.
1 Subsection 4(1) (paragraph (b) of the definition of exempt
The definition of exempt document is updated.
Agency must be followed by a comma and person or body.
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.8
10 Subsections 36(3), (4), (8), (9) and (10)
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.14
10 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
11 Section 36A
Repeal section and substitute with new content.
12 Section 53
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.16
12 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
13 Subsections 58(3) to (5A)
14 Section 58A
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.18
14 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
Tribunal must be constituted for review of decision refusing access to exempt document
15 Subsection 58B(1)
16 Section 58C
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.9
17 Section 58E
Agency or Minister must apply for Tribunal's permission to do something.
18 At the end of subsection 59(3)
Agency or Minister must apply for Tribunal's permission.
Add Schedule 1 Freedom of Information Act 1982
19 At the end of section 59
Exemption from operation of Act for certain documents
2 After subsection 7(2A)
Exemption applies to documents originating from specified agencies
A document that has originated with, or has been received from, any of the following is exempt from the operation of this Act
Exemption recognized by CogAI for documents originating from specified agencies
in relation to a document that has originated with, or has been received from, any of the following
Minister permits exemption from operation of Act
The Minister is exempt from the operation of this Act
Exemption diffuses to documents originating from specified agencies
Exemption applies to recurring documents from specified agencies
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.10
Agency or Minister may request Tribunal to order otherwise.
20 At the end of subsection 59A(3)
Informing a person or organisation about an investigation may prejudice the conduct of the investigation.
Informing may prejudice the conduct of an investigation
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.12
No obligation to disclose document under subsection (6) affects legal professional privilege claim.
No obligation to disclose document under subsection (6).
Exclusion of obligation from legal professional privilege claim.
Negation of obligation to disclose document under subsection (6).
Obligation to produce document under subsection (6)
Request for Inspector-General to appear and give evidence before granting access to a document with deletions.
Tribunal MUST request Inspector-General's appearance and evidence
Duty to request Inspector-General's appearance and evidence
Tribunal must determine that an agency or Minister must grant access...
Tribunal MUST provide information on potential damage
Duty to provide information on potential damage
...the Tribunal must request the Inspector-General to appear personally...
Agency must provide evidence before hearing Inspector-General's evidence.
Inspector-General must comply with a request unless not appropriately qualified.
Allow possession and production of documents for Inspector-General's request
Possession and production within a reasonable period
after such period as is reasonably necessary for the purposes of giving evidence to the Tribunal
Allow possession and production of documents
Permit inspection of documents at reasonable times.
Tribunal is not bound by Inspector-General's opinion.
Inspector-General must be given a reasonable time to consider documents.
Tribunal must consider certain factors when deciding whether to make an order under subsection 35(2) of the Administrative Appeals Tribunal Act 1975.
Tribunal has a duty to consider certain factors.
(1) In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 35(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal must:
The Tribunal must consider the necessity of avoiding disclosure.
Tribunal has a duty to avoid disclosure of exempt matter.
(a) have regard to: (i) the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate;
Tribunal has a duty to avoid disclosure of information of a certain kind.
(a) have regard to: (ii) the necessity of avoiding the disclosure to the applicant of information of the kind referred to in subsection 25(1);
The Tribunal must give particular weight to certain submissions.
Tribunal has a duty to give particular weight to certain submissions.
(b) where the proceedings relate to a document that is claimed to be an exempt document under section 33—give particular weight to a submission made by an agency or a Minister that it is desirable to make the order or orders under subsection 35(2) of the Administrative Appeals Tribunal Act 1975
The Tribunal must avoid disclosure that could cause damage or divulge confidential information.
Tribunal has a duty to avoid disclosure that could cause damage or divulge confidential information.
The Tribunal must make an order if certain conditions are met.
Tribunal has a duty to make an order if certain conditions are met.
Prejudice investigation or enforcement of law
21 At the end of section 59A
Informing the person or legal representative would prejudice investigation or enforcement of law
Informing the person or legal representative would prejudice conduct of an investigation of a breach, or possible breach, of the law
Informing the person or legal representative would cause damage to security, defence or international relations of the Commonwealth
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.11
22 At the end of paragraph 60(a)
23 Paragraph 60(b)
24 Paragraph 60(c)
25 After section 60
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.13
Repeal subsection and substitute with Schedule 1 Freedom of Information Act 1982
26 Subsection 63(1)
Replace 'subsection (1)' with 'paragraph (1)(a)'
27 Paragraphs 63(2)(a) and (b)
Tribunal may require document production for inspection, but not disclosure.
28 Subsection 64(1)
Prohibits disclosure of exempt documents.
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.15
Prohibit disclosure of document contents to unauthorized persons.
29 Subsection 64(2)
3 Subsection 12(3)
30 Subsections 64(3) and (4)
Omit specified phrases from a provision.
31 Subsection 64(4A)
32 Section 65
33 At the end of Part VI
Amendments apply for determining access to documents made under the Freedom of Information Act 1982.
34 Application provision—items 4 to 32
Obligation to apply amendments for access determination.
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.17
Decision of the Tribunal made on or after commencement applies to amendment.
35 Application provision—item 33
4 Subsection 33(1)
4 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
5 Subsections 33(2) to (7)
Deems a claim that a document is exempt under certain sections as an obligation to acknowledge the existence or non-existence of the document.
53 Interpretation
Imposes an obligation on the state to acknowledge the existence or non-existence of a document.
58E Production to the Tribunal of certain exempt documents
Production of exempt documents in Tribunal proceedings
58E(1) Production to the Tribunal of certain exempt documents
Tribunal requires production of exempt documents
Produce exempt documents for inspection if required by the Tribunal.
58E(2) Production to the Tribunal of certain exempt documents
Tribunal must not disclose document contents to unauthorized persons.
58E(3) Production to the Tribunal of certain exempt documents
Authorized personnel have a temporal interval for accessing the document.
The Tribunal must return the document to a person within a certain time frame.
Authorized access implies non-disclosure.
Implication of authorized access on disclosure
If a person is authorized to access the document, then they must not be disclosed.
Authorized access is inferred from the Tribunal's decision.
Inference of authorized access from Tribunal decision
The Tribunal's decision implies that a person is authorized to access the document.
Unauthorized persons are prohibited from accessing the document.
Tribunal must not disclose document contents.
Unauthorized disclosure is contained by returning the document to an authorized person.
The Tribunal must contain unauthorized disclosure by returning the document to a person who is authorized.
6 Subsections 33A(2) to (4A)
6 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
60A Inspector-General of Intelligence and Security must be
Must be applied in proceedings before the Tribunal under this Act
60A(1) Inspector-General of Intelligence and Security must be
Request for personal appearance and evidence from Inspector-General of Intelligence and Security
60A(2) Inspector-General of Intelligence and Security must be
Must appear personally and give evidence
67 Automatic stay of certain decisions on appeal
Automatic stay of certain decisions on appeal
67(1) Automatic stay of certain decisions on appeal
67(2) Automatic stay of certain decisions on appeal
67(3) Automatic stay of certain decisions on appeal
Stay of certain decisions on appeal continues until earlier of Federal Magistrates Court decision or other determination.
67(4) Automatic stay of certain decisions on appeal
No effect on power to make orders under section 44A
67(5) Automatic stay of certain decisions on appeal
...power of the Federal Court of Australia...
7 Subsections 33A(6) to (8)
8 Subsections 34(2) to (5)
8 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
9 Subsections 35(2) to (5)
1 Subsections 29(6) and (7)
Exempt records containing certain information are not subject to access restrictions.
1(6) Subsections 29(6) and (7)
Obligation to provide access to exempt records
A record in open access period is not exempt unless it contains sensitive information or has a security classification.
1(7) Subsections 29(6) and (7)
Not exempt unless sensitive information or security classification applies during this time
Exemption based on record type and access period
Not exempt unless sensitive information or security classification applies
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.19
10 After section 50
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.22
Tribunal must consider certain factors when deciding to make an order under subsection 35(2) of the Administrative Appeals Tribunal Act 1975.
11 Subsection 52(1)
12 Paragraphs 52(2)(a) and (b)
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.23
13 Subsection 53(1)
Tribunal may require exempt record production under certain conditions.
13(1) Subsection 53(1)
Tribunal must not permit access to exempt record or disclose its contents to anyone except specified individuals.
13(1A) Subsection 53(1)
Restrict access to records for certain individuals.
14 Subsection 53(2)
15 Subsections 53(3) and (4)
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.20
16 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
16 Section 54
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.24
17 At the end of Division 4 of Part V
18 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
Omit all words from and including “, other than:”.
18 Subsection 66(2)
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.25
Exemptions from amendments for Commonwealth records
19 Application provision—item 1
2 Section 34
20 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
Amendments apply for determining access to records under Archives Act 1983
20 Application provision—items 2 to 16
Duty to apply amendments for access determination
No obligation to disclose document under subsection (6)
Negates obligation to disclose document under subsection (6)
Inspector-General must be allowed a reasonable time to consider records.
...a reasonable time to consider the records mentioned in paragraphs (6)(a) to (d)
Temporal relation between Tribunal's allowance and Inspector-General's consideration.
(9) The Tribunal must allow the Inspector-General a period within which to consider...
The Tribunal must allow the Inspector-General a period within which to consider...
Allowance of time for Inspector-General's consideration.
(a) the nature of the evidence that the Inspector-General has been requested to give; and (b) the time required by the Inspector-General to perform the Inspector-General’s other functions.
Mandatory allowance of time for Inspector-General's consideration.
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.26
Amendment applies to decisions made on or after commencement.
21 Application provision—item 17
22 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
Exemption from application of amendment for records in open access period or with certificate issued under Archives Act 1983
22 Application provision—item 18
3 Section 41
4 Subsections 44(4), (5) and (6)
5 Section 45
Decision of the Archives is taken to be given by the Director-General.
50 Parties
Decision is taken to be given by the Director-General.
50A Inspector-General of Intelligence and Security must be
Must provide information in proceedings before the Tribunal
50A(1) Inspector-General of Intelligence and Security must be
Request for Inspector-General to provide evidence on potential damage or breach of confidence
50A(2) Inspector-General of Intelligence and Security must be
...the Inspector-General of Intelligence and Security to appear personally and give evidence...
Must request Inspector-General to appear and give evidence
(2) Before determining that the record is not an exempt record, the Tribunal must...
...the damage that could reasonably be expected to be caused to the security, defence or international relations of the Commonwealth if the record were made available for public access;
Must provide evidence on potential damage or breach of confidence
(2) Before determining that the record is not an exempt record, the Tribunal must request the Inspector-General of Intelligence and Security to appear personally and give evidence...
...whether making the record available for public access would constitute a breach of confidence by disclosing information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
Must provide evidence on potential breach of confidence
Request for personal appearance by Inspector-General before making part of record available for public access.
50A(3) Inspector-General of Intelligence and Security must be
Personal appearance request is contained within record access request
Personal appearance request is contained within the record access request
Record access request contains personal appearance request
Part of record should not be made available for public access
Request for personal appearance implies that the part of record should not be made available for public access
Inspector-General must appear personally
Obligation to request personal appearance
Request for personal appearance is required
Personal appearance request is a diffusion event
Personal appearance request is a subset of diffusion events
Record access request is a diffusion event
Tribunal must hear evidence from Archives and Commonwealth institutions.
50A(4) Inspector-General of Intelligence and Security must be
Archives and Commonwealth institutions' evidence must be heard within Tribunal's hearing interval
Evidence from Archives and Commonwealth institutions must be heard within Tribunal's hearing
Tribunal's hearing is a temporal interval
Archives and Commonwealth institutions' evidence is relevant to the case
Tribunal's hearing of Archives and Commonwealth institutions implies their relevance to the case
Tribunal's hearing is relevant to the case
Archives and Commonwealth institutions' evidence must be processed cognitively by Tribunal
Tribunal's hearing requirement for Archives and Commonwealth institutions is a cognitive task
Tribunal has a cognitive task to perform
Evidence from Archives and Commonwealth institutions must be heard
Agents of Tribunal must also hear evidence from Archives and Commonwealth institutions
Tribunal's obligation to hear Archives and Commonwealth institutions is diffused to its agents
Tribunal has an obligation to hear evidence
50A(5) Inspector-General of Intelligence and Security must be
Inspector-General's belief in qualification
Tribunal must provide records for inspection
The Tribunal must allow the Inspector-General to take possession of records.
50A(6) Inspector-General of Intelligence and Security must be
50A(7) Inspector-General of Intelligence and Security must be
Tribunal not bound by Inspector-General's opinion.
50A(8) Inspector-General of Intelligence and Security must be
The Inspector-General's opinion does not overlap with the Tribunal's obligation.
Inspector-General's opinion does not overlap with the Tribunal's obligation.
(8) The Tribunal is not bound by any opinion of the Inspector-General expressed while giving evidence under this section.
The Inspector-General's opinion is not applicable to the Tribunal.
Inspector-General's opinion is not applicable to the Tribunal.
The Tribunal is not bound by the Inspector-General's opinion.
Inspector-General's opinion does not bind the Tribunal.
The Inspector-General's opinion does not diffuse to the Tribunal.
Inspector-General's opinion does not diffuse to the Tribunal.
The Tribunal is not obligated to follow the Inspector-General's opinion.
Tribunal's obligation to follow Inspector-General's opinion is negated.
55A Automatic stay of certain decisions on appeal
55A(1) Automatic stay of certain decisions on appeal
Automatic stay of certain decisions on appeal from the time an appeal is instituted.
55A(2) Automatic stay of certain decisions on appeal
Conditional commencement of stay on appeal
55A(3) Automatic stay of certain decisions on appeal
Requires relation between identifiable temporal intervals for conditional commencement
Continuation of automatic stay on appeal
55A(4) Automatic stay of certain decisions on appeal
Nothing in this section affects the power of the Federal Court of Australia or the Federal Magistrates Court to make orders under section 44A of the Administrative Appeals Tribunal Act 1975 in relation to matters other than staying the decision of the Tribunal.
55A(5) Automatic stay of certain decisions on appeal
Tribunal must be constituted in accordance with subsection (2) for proceedings about certain exempt records.
6 Subsection 46(1)
Tribunal must be constituted in accordance with subsection (2)
7 Section 47
8 Section 49
Repeal section and substitute with new provision
9 Section 50
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.27
Insertion of '(other than a proceeding to which section 21AB applies)' after 'Security Appeals Division'
1 Subsection 21AA(1)
2 After section 21AA
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.28
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.30
Rehearsal of proceeding if member ceases to be available
Temporal overlap between member's availability and proceeding
Member ceased to be available before proceeding was completed
Consider a record of proceedings in the Division as previously constituted when reconstituting.
Request to reconstitute the Division for a proceeding.
Notify President of application and submissions
The President may reconstitute the Division by 3 presidential members.
Division may complete or remit proceeding
Division must comply with directions from the previous Division in reviewing a proceeding.
The Division as previously constituted must comply...
Division has an obligation to comply with directions.
The Division as reconstituted may give directions...
Presidential member must preside in a proceeding before the Division.
21AB Constitution of Security Appeals Division—proceedings to
Refusal to grant access to a record in the Australian Archives under certain conditions.
21AB(1) Constitution of Security Appeals Division—proceedings to
Prohibits access to a record in the Australian Archives.
Constitutes the Security Appeals Division with specified members.
21AB(2) Constitution of Security Appeals Division—proceedings to
Prohibition on participation in proceedings by certain officials
21AB(3) Constitution of Security Appeals Division—proceedings to
(3) A presidential member must not participate...
24 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
26 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
1 Paragraph 34(1)(a)
Prohibition on disclosing information acquired under section 60A or 50A
2 After subsection 34(1)
Prohibition applies during performance of functions or duties
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.32
Reference to section 50A of the Archives Act 1983
28 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
Omit 'Subsection (1) does', substitute 'Subsections (1), (1AA) and (1AB) do'
3 Subsection 34(1A)
Prohibits the removal of conclusive certificates
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.31
Replace 'subsection (1)' with 'the subsection'
4 Paragraphs 34(1A)(a) and (b)
5 Subsection 34(2)
6 Subsection 34(3)
7 Subsection 34(4)
Cannot be required to produce documents or divulge information in certain circumstances.
8 Subsection 34(5)
Cannot be required to produce documents or divulge information.
9 Subsection 34(7)
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.5
1 Short title
freedom-of-information-removal-of-conclusive-certificates-and-other-measures-act-2009.pdf, p.6
2 Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act
Commences on day after receiving Royal Assent.
2 Commencement
Schedules amendment and repeal provisions for specified Acts.
3 Schedule(s)
An Act to amend the law relating to access to information, and for related purposes
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009