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