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FREEDOM OF INFORMATION BILL 1999
Serial 121
Freedom Of Information
Ms Hickey
NORTHERN TERRITORY OF AUSTRALIA
FREEDOM OF INFORMATION BILL 1999
TABLE OF PROVISIONS
Clause
PART 1 - PRELIMINARY
Division 1 - Introductory
1. Short title
2. Commencement
Division 2 - Object of the Act and Matters Relevant
to its Administration and Interpretation
3. Object of the Act
4. Reasons for enactment of Act
5. Matter relating to personal affairs of applicant
Division 3 - Interpretation
6. Definitions
7. Meaning of "agency"
8. Meaning of "public authority"
Division 4 - Operation and Application of Act
9. Act applies to document whenever it came into existence
10. Act not to apply to certain bodies etc.
11. Application of Act to Ombudsman
12. Act binds Crown
Division 5 - Relationship with Other Laws
13. Act not intended to prevent other publication of information
14. Relationship with other enactments requiring publication of information etc.
15. Operation of provisions of other enactments providing for nondisclosure
PART 2 - PUBLICATION OF CERTAIN
DOCUMENTS AND INFORMATION
16. Publication of information concerning affairs of agencies
17. Availability of certain documents
18. Notices to require specification of documents in statements
PART 3 - ACCESS TO DOCUMENTS
Division 1 - Access
19. Right of access
20. Documents to which access may be refused
21. Non-official documents in Territory Archives
22. Official documents in Territory Archives
23. How applications for access are made
24. Transfer of applications
25. How applications are dealt with
26. Access may be refused in certain cases
27. Fees and charges for access to documents
28. Forms of access
29. Access may be deferred in certain cases
30. Deletion of exempt matter
31. Persons who are to make decisions for agencies and Ministers
32. Notification of decisions and reasons
33. Information as to existence of certain documents
Division 2 - Exempt Matter
34. Cabinet matter
35. Executive Council matter
36. Matter affecting relations with other governments
37. Matter relating to investigations by Ombudsman or audits by Auditor-General
38. Matter concerning certain operations of agencies
39. Matter relating to deliberative processes
40. Matter relating to law enforcement or public safety
41. Matter affecting legal proceedings
42. Matter affecting personal affairs
43. Matter relating to trade secrets, business affairs and research
44. Matter communicated in confidence
45. Matter affecting the economy of Territory
46. Matter to which secrecy provisions of enactments apply
47. Matter affecting financial or property interests
48. Matter disclosure of which would be contempt of Parliament or contempt of court
Division 3 - Consultation
49. Disclosure that may reasonably be expected to be of substantial concern
Division 4 - Internal Review
50. Internal review
PART 4 - AMENDMENT OF INFORMATION
Division 1 - Application for Amendment
of Information
51. Person may request amendment of information
52. Form of application for amendment of information
53. Agency or Minister may amend information
54. Notation to information
55. Time within which agency or Minister must notify applicant
56. Decision to be made by authorised person and reasons given
57. Certain notations required to be added
Division 2 - Internal Review
58. Internal review
PART 5 - EXTERNAL REVIEW OF DECISIONS
Division 1 - Functions of the Ombudsman
59. Functions of Ombudsman
Division 2 - Conduct of Review
60. Procedure on review
61. Applications for review
62. Ombudsman to notify
63. Preliminary inquiries
64. Inspection of exempt documents by Ombudsman
65. Ombudsman may decide not to review
66. Participants in review
67. Applications where decisions delayed
68. Mediation
69. Onus to lie with agencies and Ministers
70. Requirement to provide better reasons
71. Conduct of reviews
72. Review of Minister's certificates
73. Power to obtain information and documents and compel attendance
74. Power to examine witnesses
75. Ombudsman to ensure non-disclosure of certain matter
76. Powers of Ombudsman on review
77. Decisions of Ombudsman
Division 3 - Miscellaneous
78. Delegation
79. Protection of Ombudsman, &c., from personal liability
80. Restrictions under other laws not applicable
81. Secrecy
82. Failure to produce documents or attend proceedings
83. Costs of review
84. Disciplinary action
85. Reference of questions of law to Supreme Court
86. Costs in proceedings
87. Ombudsman may appear in proceedings
88. Intervention by Attorney-General
89. Reports of Ombudsman
PART 6 - MISCELLANEOUS
90. Protection against actions for defamation or breach of confidence
91. Protection in respect of offences
92. Protection of agency etc. from personal liability
93. Precautions
94. Offence of unlawful access
95. Report to Parliament by agencies and Ministers
96. Regulations
Freedom of Information
53
NORTHERN TERRITORY OF AUSTRALIA
A BILL
for
AN ACT
to require information concerning documents held by government to be made available to members of the community, to enable members of the community to obtain access to documents held by government and to enable members of the community to ensure that documents held by the government concerning their personal affairs are accurate, complete, up-to-date and not misleading, and for related purposes
B
E it enacted by the Legislative Assembly of the Northern Territory of Australia, with the assent as provided by the Northern Territory (Self-Government) Act 1978 of the Commonwealth, as follows:
PART 1 - PRELIMINARY
Division 1 - Introductory
1. SHORT TITLE
This Act may be cited as the Freedom of Information Act 1999.
2. COMMENCEMENT
This Act comes into operation on the date fixed by the Administrator by notice in the Gazette.
Division 2 - Object of Act and Matters Relevant to
its Administration and Interpretation
3. OBJECT OF ACT
The object of this Act is to extend as far as possible the right of the community to have access to information held by the Territory Government.
4. REASONS FOR ENACTMENT OF ACT
(1) Parliament recognises that, in a free and democratic society-
(a) the public interest is served by promoting open discussion of public affairs and enhancing government's accountability; and
(b) the community should be kept informed of government's operations, including, in particular, the rules and practices followed by government in its dealings with members of the community; and
(c) members of the community should have access to information held by government in relation to their personal affairs and should be given the ways to ensure that information of that kind is accurate, complete, up-to-date and not misleading.
(2) Parliament also recognises that there are competing interests in that the disclosure of particular information could be contrary to the public interest because its disclosure in some instances would have a prejudicial effect on -
(a) essential public interests; or
(b) the private or business affairs of members of the community in respect of whom information is collected and held by government.
(3) This Act is intended to strike a balance between those competing interests by giving members of the community a right of access to information held by government to the greatest extent possible with limited exceptions for the purpose of preventing a prejudicial effect to the public interest of a kind referred to in subsection (2).
5. MATTER RELATING TO PERSONAL AFFAIRS OF APPLICANT
If an application for access to a document is made under this Act, the fact that the document contains matter relating to the personal affairs of the applicant is an element to be taken into account in deciding -
(a) whether it is in the public interest to grant access to the applicant; and
(b) the effect that the disclosure of the matter might have.
Division 3 - Interpretation
6. DEFINITIONS
In this Act, unless the contrary intention appears -
"agency" has the meaning given by section 7;
"court" includes a justice and a coroner;
"document of an agency" or "document of the agency" means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes -
(a) a document to which the agency is entitled to access; and
(b) a document in the possession or under the control of an officer of the agency in the officer's official capacity;
"enactment" means an Act or an instrument of a legislative or administrative character;
"exempt document" means a document that contains exempt matter, but to which access cannot be given under section 30;
"exempt matter" means matter that is exempt under Division 2 of Part 3;
"government" includes an agency and a Minister;
"holds", in relation to an office, includes performs the duties of the office;
"officer", in relation to an agency, includes -
(a) the agency's principal officer;
(b) a member of the agency;
(c) a member of the agency's staff; and
(d) a person employed by or for the agency;
"official document of a Minister" or "official document of the Minister" means a document in the possession or under the control of a Minister, or the Minister concerned, that relates to the affairs of an agency, and includes -
(a) a document to which the Minister is entitled to access; and
(b) a document in the possession or under the control of a member of the staff of, or a consultant to, the Minister in the person's capacity as such a member or consultant;
"Ombudsman" means the Ombudsman appointed under the Ombudsman (Northern Territory) Act;
"policy document", in relation to an agency, includes -
(a) a document containing interpretations, rules, guidelines, statements of policy, practices or precedents;
(b) a document containing particulars of an administrative scheme;
(c) a document containing a statement of the way, or intended way, of administration of an enactment or administrative scheme; and
(d) a document describing the procedures to be followed in investigating a contravention or possible contravention of an enactment or administrative scheme,
that is used by the agency in connection with the performance of such of its functions as affect or are likely to affect rights, privileges or other benefits, or obligations, penalties or other detriments, to which members of the community are or may become entitled, eligible, liable or subject, but does not include an enactment that has already been published;
"principal officer" means -
(a) in relation to an agency, the chief executive officer of the agency;
(b) in relation to a public authority for which a regulation declares an office to be the principal office, the holder of the office; or
(c) in relation to a public authority -
(i) if it is an incorporated body that has no members, the person who manages the body's affairs;
(ii) if it is a body (whether or not incorporated) that is constituted by one person, that person; or
(iii) if it is a body (whether or not incorporated) that is constituted by 2 or more persons, the person who is entitled to preside at a meeting of the body at which the person is present;
"public authority" has the meaning given by section 8;
"public library" includes -
(a) the State Reference library; and
(b) a library in the Territory that forms part of a public tertiary educational institution;
"responsible Minister" means -
(a) in relation to an agency, the Minister administering the agency;
(b) in relation to a public authority referred to in paragraph (a) of the definition of "public authority", the Minister administering the Act by or under which the public authority is established; or
(c) in relation to any other public authority, the Minister declared by regulation to be the responsible Minister in relation to the public authority;
"Territory Archives" means the Northern Territory Archives Service.
7. MEANING OF "AGENCY"
(1) In this Act "agency" includes -
(a) an agency as defined by section 18 of the Interpretation Act; and
(b) a public authority.
(2) In this Act, a reference to an agency includes a reference to a body that -
(a) forms part of the agency; or
(b) exists mainly for the purpose of enabling the agency to perform its functions.
8. MEANING OF "PUBLIC AUTHORITY"
(1) In this Act "public authority" means -
(a) a body (whether or not incorporated) that -
(i) is established for a public purpose by an enactment; or
(ii) is established by government for a public purpose under an enactment; or
(b) a body (whether or not incorporated) that is created by the Administrator or a Minister;
(c) a body (whether or not incorporated) -
(i) that is -
(A) supported directly or indirectly by government funds or other assistance or over which government is in a position to exercise control; or
(B) a body established by or under an enactment; and
(ii) that is declared by regulation to be a public authority for the purposes of this Act;
(d) subject to subsection (3), a person holding an office established by or under an enactment; or
(e) a person holding an appointment -
(i) made by the Administrator or Minister otherwise than by or under an enactment; and
(ii) that is declared by regulation to be an appointment the holder of which is a public authority for the purposes of this Act,
but does not include a body that, under subsection (2), is not a public authority for the purposes of this Act.
(2) For the purposes of this Act, an unincorporated body that is a board, council, committee, sub-committee or other body established by or under an enactment for the purpose of assisting, or performing functions connected with, a public authority is not a separate public authority, but is taken to be comprised within the public authority.
(3) A person is not a public authority merely because the person holds -
(a) an office the duties of which are performed as duties of employment as an agency's officer;
(b) an office of member of a body; or
(c) an office established by or under an enactment for the purposes of an agency.
Division 4 Operation and Application of Act
9. ACT APPLIES TO DOCUMENT WHENEVER IT CAME INTO EXISTENCE
A person is entitled to apply under this Act for access to a document regardless of when the document came into existence.
10. ACT NOT TO APPLY TO CERTAIN BODIES ETC.
(1) This Act does not apply to -
(a) the Administrator;
(b) the Executive Council, a member of the Executive Council, the Legislative Assembly, a member of the Legislative Assembly, a committee of the Legislative Assembly, a member of a committee of the Legislative Assembly, a parliamentary commission of inquiry or a member of a commission of inquiry;
(c) the judicial functions of -
(i) a court; or
(ii) the holder of a judicial office or other office connected with a court; or
(d) a registry or other office of a court, or the staff of a registry or other office of a court in their official capacity, so far as its or their functions relate to the court's judicial functions;
(e) an agency in relation to a document that has originated with, or has been received from, the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Inspector -General of Intelligence and Security or the Office of National Assessments, or the Defence Signals Directorate or the Joint Intelligence Organisation of the Commonwealth Department of Defence; or
(f) an agency, part of an agency or function of an agency prescribed by regulation for the purposes of this paragraph.
(2) In subsection (1), a reference to documents in relation to a particular function or activity is a reference to documents received or brought into existence in performing the function or carrying on the activity.
11. APPLICATION OF ACT TO OMBUDSMAN
Section 18 and Parts 3 and 4 do not apply to the Ombudsman or documents of the Ombudsman.
12. ACT BINDS CROWN
This Act binds the Crown in right of the Territory.
Division 5 - Relationship with Other Laws
13. ACT NOT INTENDED TO PREVENT OTHER PUBLICATION OF INFORMATION ETC.
This Act is not intended to prevent or discourage -
(a) the publication of information;
(b) the giving of access to documents (including documents containing exempt matter and exempt documents); or
(c) the amendment of documents relating to the personal affairs of persons,
otherwise than under this Act if that can properly be done or is permitted or required to be done by law.
14. RELATIONSHIP WITH OTHER ENACTMENTS REQUIRING PUBLICATION OF INFORMATION
Without limiting section 13, this Act does not affect the operation of another enactment that -
(a) requires information concerning documents held by government to be made available to members of the community;
(b) enables a member of the community to obtain access to documents held by government;
(c) enables a member of the community to ensure that documents held by government concerning the person's personal affairs are accurate, complete, up-to-date and not misleading; or
(d) requires the publication of information concerning government operations.
15. OPERATION OF PROVISIONS OF OTHER ENACTMENTS PROVIDING FOR NON-DISCLOSURE
(1) This Act is intended to operate to the exclusion of the provisions of other enactments relating to non-disclosure of information.
(2) Subsection (l) has effect subject to section 46.
PART 2 - PUBLICATION OF CERTAIN
DOCUMENTS AND INFORMATION
16. PUBLICATION OF INFORMATION CONCERNING AFFAIRS OF AGENCIES
(1) An agency must, within 1 year after the commencement of this section and at subsequent intervals of not more than 1 year, publish an up-to-date statement of the affairs of the agency.
(2) The statement must contain -
(a) a description of the agency's structure and functions;
(b) a description of the ways in which the agency's functions (including, in particular, its decision-making functions) affect members of the community;
(c) a description of any arrangements that exist to enable members of the community to participate in the formulation of the agency's policy and the exercise of the agency's functions;
(d) a description of the various kinds of documents that are usually held by the agency, including -
(i) the kinds of documents that are available for inspection at the agency (whether or not as part of a public register) under an enactment other than this Act, whether or not inspection of any such document is subject to a fee or charge;
(ii) the kinds of documents that are available for purchase from the agency; and
(iii) the kinds of documents that are available from the agency free of charge;
(e) a description of the literature available from the agency by way of subscription services or free mailing lists;
(f) a list of all boards, councils, committees and other bodies constituted by 2 or more persons -
(i) that are a part of, or that have been established for the purpose of, advising, the agency;
(ii) the meetings of which are open to the public or the minutes of which meetings are available for public inspection;
(g) a description of the arrangements that exist to enable a member of the community to obtain access to the agency's documents and to seek amendment of the agency's documents concerning the person's personal affairs; and
(h) a description of the agency's procedures in relation to the giving of access to the agency's documents and to the amendment of the agency's documents concerning the personal affairs of a member of the community, including -
(i) the designation of officers to whom inquiries should be made; and
(ii) the addresses at which applications under this Act should be lodged.
(3) The statement must be published in a way approved by the Minister.
(4) Nothing in this section requires the publication of exempt matter.
17. AVAILABILITY OF CERTAIN DOCUMENTS
(1) An agency must make copies of -
(a) its most recent statement of affairs; and
(b) each of its policy documents,
available for inspection and purchase by members of the community.
(2) Nothing in this section prevents an agency from deleting exempt matter from a copy of a policy document.
(3) A person must not be subjected to any prejudice because of the application of the provisions of an agency's policy document (other than provisions the agency is permitted to delete from the copies of the document) to any act or omission of the person if, at the time of the act or omission -
(a) the policy document was not available for inspection and purchase;
(b) the person was not aware of the provisions; and
(c) the person could lawfully have avoided the prejudice had the person been aware of the provisions.
(4) During the first year of the application of this section to an agency -
(a) the agency is required to comply with subsection (l) only to the extent that is reasonably practicable; and
(b) subsection (3) does not have effect.
18. NOTICES TO REQUIRE SPECIFICATION OF DOCUMENTS IN STATEMENTS
(1) A person may serve on an agency's principal officer a written notice stating that, in the person's opinion -
(a) the agency has failed to publish a statement of affairs as required by this Part; or
(b) that a statement of affairs published by the agency under this Part does not comply with the Part.
(2) The principal officer must -
(a) within 21 days of receiving the notice decide whether or not the person's opinion is correct and, if so, whether to -
(i) publish a statement of affairs, or further statement of affairs, as required by this Part; or
(ii) ensure that the next statement of affairs published under this Part complies with the Part; and
(b) notify the person, in writing, of the decision.
(3) If the principal officer decides that the person's opinion is incorrect, the notice is to -
(a) give the reasons for the decision; and
(b) inform the person of -
(i) the person's right to apply to the Ombudsman for a review of the decision under Part 5; and
(ii) the time within which the application for review must be made.
PART 3 - ACCESS TO DOCUMENTS
Division 1 - Access
19. RIGHT OF ACCESS
Subject to this Act, a person has a legally enforceable right to be given access in accordance with this Act to -
(a) documents of an agency; and
(b) official documents of a Minister.
20. DOCUMENTS TO WHICH ACCESS MAY BE REFUSED
An agency or Minister may refuse access under this Act to -
(a) a document that is reasonably open to public access (whether or not as part of a public register) in accordance with another enactment, whether or not the access is subject to a fee or charge;
(b) a document that is reasonably available for purchase by members of the community in accordance with arrangements made by an agency;
(c) a document that is reasonably available for public inspection in the Territory Archives or a public library;
(d) a document that -
(i) is stored for preservation or safe custody in the Territory Archives; and
(ii) is a copy of a document of an agency; or
(e) adoption records maintained under the Adoption of Children Act.
21. NON-OFFICIAL DOCUMENTS IN TERRITORY ARCHIVES.
(1) A document that -
(a) has been placed in the custody of the Territory Archives or a public library by a person; and
(b) was not, immediately before being placed in that custody, a document of an agency or an official document of a Minister,
is available for access to members of the community in accordance with this Act, subject to any restrictions or conditions imposed by the person at the time the document was placed in the custody of the Territory Archives or a public library.
(2) Subsection (l) applies to a document that was placed in the custody of the Territory Archives or a public library by a person before the commencement of this Act and, for the purposes of that application, any restrictions or conditions imposed by the person within one year after that commencement are taken to have been imposed by the person at the time referred to in that subsection.
22. OFFICIAL DOCUMENTS IN TERRITORY ARCHIVES
(1) For the purposes of this Act, a document that -
(a) has been placed in the custody of the Territory Archives by an agency (whether before or after the commencement of this Act); and
(b) is not reasonably available for inspection in the Territory Archives,
is taken to be in the agency's possession, or, if the agency no longer exists, the agency whose functions are most closely related to the document, if the agency is entitled to access to the document.
(2) For the purposes of this Act, a document that has been placed by an agency (including the Territory Archives) in a place of deposit in a public library (whether before or after the commencement of this Act) is taken to be in the agency's possession, or, if the agency no longer exists, the agency whose functions are most closely related to the document, if the agency is entitled to access to the document.
23. HOW APPLICATIONS FOR ACCESS ARE MADE
(1) A person who wishes to obtain access to a document of an agency or an official document of a Minister under this Act is entitled to apply to the agency or Minister for access to the document.
(2) The application must -
(a) be in writing; and
(b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency or the Minister to identify the document.
(3) If a person -
(a) wishes to make an application under this Act to an agency or Minister for access to a document;
(b) has made such an application but it does not comply with this section; or
(c) has directed such an application to the wrong agency or Minister,
it is the duty of the agency or Minister to assist the person to make the application in a way that complies with this section or to direct the application to the appropriate agency or Minister.
(4) An agency or Minister must not refuse access to a document because the application does not comply with this section without first giving the applicant a reasonable opportunity of consultation with a view to making an application in a form that complies with this section.
24. TRANSFER OF APPLICATIONS
(1) In this section "agency" includes a Minister.
(2) An agency to which an application has been made (the "receiving agency") may transfer the application to another agency if -
(a) the document to which the application relates -
(i) is not held by the receiving agency but is, to the receiving agency's knowledge, held by the other agency; or
(ii) is held by the receiving agency but is more closely related to the functions of the other agency; and
(b) the other agency consents to the transfer.
(3) An agency that transfers an application to another agency must -
(a) if it holds the document to which the application relates, give a copy of the document (whether or not in the form of a written document) to the other agency with the application; and
(b) immediately give the applicant written notice of the transfer, specifying in the notice the day on which, and the agency to which, the application has been transferred.
(4) An agency is not required to include exempt matter in a notice.
(5) An application that is transferred from one agency to another is taken to have been received by the other agency -
(a) on the day on which it is transferred; or
(b) 14 days after the day on which it was received by the agency to which it was originally made,
whichever is the earlier.
25. HOW APPLICATIONS ARE DEALT WITH
(1) If an application for access to a document is made to an agency or Minister in accordance with this Act, the agency or Minister must take all reasonable steps to ensure that the applicant is notified that the application has been received as soon as practicable, but in any case not later than 14 days, after the application is received.
(2) After considering the application, the agency or Minister must decide -
(a) whether access is to be given to the document;
(b) if access is to be given, any charge that must be paid before access is granted; and
(c) any charge payable for dealing with the application.
(3) If it is apparent from the terms of the application that the applicant seeks information of a certain kind contained in documents of the agency or official documents of the Minister, the agency or Minister may, with the agreement of the applicant, deal with the application as if it were an application relating only to those parts of the documents that contain information of that kind.
(4) If the agency or Minister fails to determine an application within -
(a) the appropriate period; or
(b) if action is required under sections 42(3) and (4) or 49 in relation to the application - a period equal to the appropriate period plus 15 days,
the agency or Minister is taken to have refused access to the document to which the application relates at the end of the period.
(5) If the agency or Minister decides that the applicant is liable to pay a charge in relation to the application or the provision of access to a document, the agency or Minister must notify the applicant in writing of the amount of the charge and of the basis on which the amount of the charge was calculated.
(6) This section does not require an agency to determine an application that has been transferred to another agency under section 24.
(7) In this section -
"appropriate period" means -
(a) in relation to an application to an agency or Minister for a document that -
(i) came into existence more than 5 years before the commencement of this Act; and
(ii) does not concern the personal affairs of the applicant,
60 days after the application is received by the agency or Minister; or
(b) in relation to any other application - 45 days after the application is received by the agency or Minister.
26. ACCESS MAY BE REFUSED IN CERTAIN CASES
(1) An agency or Minister may refuse access to exempt matter or an exempt document.
(2) If -
(a) an application is expressed to relate to all documents, or to all documents of a specified class, that contain information of a specified kind or relate to a specified subject matter; and
(b) it appears to the agency or Minister dealing with the application that the work involved in dealing with the application would, if carried out -
(i) substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions; or
(ii) interfere substantially and unreasonably with the performance by the Minister of the Minister's functions,
having regard only to the number and volume of the documents and to any difficulty that would exist in identifying, locating or collating the documents within the filing system of the agency or the office of the Minister,
the agency or Minister may refuse to deal with the application.
(3) If -
(a) an application is expressed in the way referred to in subsection (2)(a); and
(b) it appears to the agency or Minister concerned that all of the documents to which the application relates are exempt documents,
the agency or Minister may refuse access to all of the documents without having identified any or all of the documents and without specifying the reason that any matter in the documents is claimed to be exempt matter.
(4) An agency or Minister must not refuse access to a document under subsection (2) or (3) without first giving the applicant a reasonable opportunity of consultation with a view to making an application in a form that would remove the ground for refusal.
27. FEES AND CHARGES FOR ACCESS TO DOCUMENTS
(1) In this section "agency" includes a Minister.
(2) An applicant applying for access to a document that does not concern the applicant's personal affairs may be required to pay a prescribed application fee at the time the application is made.
(3) Any prescribed charge that is to be paid by an applicant before access to a document is given is to be calculated in accordance with the following principles:
(a) no charge is to be made for the time spent by the agency in conducting a search for the document to which access is requested;
(b) no charge is to be made for supervising the inspection by the applicant of the document to which access is granted;
(c) a charge may be made for the reasonable costs incurred by an agency in -
(i) supplying copies of documents;
(ii) making arrangements for hearing or viewing documents of a kind referred to in section 28(1)(c); or
(iii) providing a written transcript of the words recorded or contained in documents; or
(iv) providing a written document under section 28(1)(e);
(v) examining a document to determine whether it contains exempt matter;
(vi) deleting exempt matter from a document;
(d) no charge is to be made for producing for inspection a document referred to in section 17(1), whether or not the document has been specified in a statement published under section 16;
(e) no charge is to be made for the time spent in meeting the requirements of section 49.
(4) Subject to subsections (5) and (6), payment of a charge must not be required before the agency has notified the applicant of its decision on access to a document.
(5) If in an agency's opinion a charge might be more than $25 or such greater amount as is prescribed, the agency must give written notice to the applicant of its opinion and ask whether the applicant wishes to proceed with the application.
(6) An agency may, in a notice given to an applicant under subsection (5), require the applicant to pay a deposit of a prescribed amount, or at a prescribed rate, on account of the charge.
(7) A notice under subsection (5) requiring an applicant to pay a deposit must -
(a) specify the name and designation of the person who calculated the charge; and
(b) inform the applicant of -
(i) the applicant's right to apply for a review of the charge;
(ii) the procedures to be followed for exercising the right; and
(iii) the time within which the application for review must be made.
(8) If an agency requires an applicant to pay a deposit on account of a charge, the period beginning on the day on which the applicant is notified of the requirement and ending on the day on which the deposit is paid is to be disregarded for the purposes of section 25(4).
(9) If an agency requires an applicant to pay a deposit on account of a charge, the agency must, if requested to do so by the applicant, discuss with the applicant practicable alternatives for altering the application or reducing the anticipated charge, including reducing the charge if the applicant waives, either conditionally or unconditionally, the need for the agency to comply with section 25(4).
(10) Subject to this section, the prescribed charges must be uniform for all agencies, and there must be no variation of charges between different applicants in relation to like services.
28. FORMS OF ACCESS
(1) Access to a document may be given to a person in one or more of the following forms -
(a) a reasonable opportunity to inspect the document;
(b) providing a copy of the document;
(c) if the document is an article or material from which sounds or visual images are capable of being reproduced - making arrangements for the person to hear the sounds or view the images;
(d) if the document is one -
(i) by which words are recorded in a way in which they are capable of being reproduced in the form of sound; or
(ii) in which words are contained in the form of shorthand writing or in codified form,
providing a written transcript of the words recorded or contained in the document; or
(e) if -
(i) the application relates to information that is not contained in a written document held by the agency; and
(ii) the agency could create a written document containing the information using equipment that is usually available to it for retrieving or collating stored information,
providing a written document so created.
(2) Subject to this section and section 30, if an applicant has requested access in a particular form, access must be given in that form.
(3) If giving access in the form requested by the applicant -
(a) would interfere unreasonably with the operations of the agency, or the performance by the Minister of the Minister's functions;
(b) would be detrimental to the preservation of the document or, having regard to the physical nature of the document, would be inappropriate; or
(c) would involve an infringement of the copyright of a person other than the Territory,
access in that form may be refused and given in another form.
(4) If an applicant is given access to a document in a form different from the form of access requested by the applicant, the applicant must not be required to pay a charge that is more than the charge that would have been payable if access had been given in the form requested by the applicant.
(5) Access under subsection (l)(a) to a document referred to in section 21 or 22 must be given by affording the applicant a reasonable opportunity to inspect the document on the premises of the Territory Archives or public library or in an office of an agency.
(6) If a document is more than 20 years old or in the custody of the Territory Archives, the Territory Archivist may direct that access not be given in one or more, but not all, of the forms referred to in subsection (l) if, in the Territory Archivist's opinion, giving access in that form would be detrimental to the document's preservation or, having regard to the physical nature of the document, would be inappropriate.
(7) This section does not prevent an agency or Minister giving access to a document in another form agreed to by the applicant.
29. ACCESS MAY BE DEFERRED IN CERTAIN CASES
An agency or Minister may defer providing access to a document for a reasonable period if the document was prepared -
(a) for presentation to the Parliament or a committee of the Parliament;
(b) for release to the media; or
(c) solely for inclusion, in the same or an amended form, in a document to be prepared for a purpose referred to in paragraph (a) or (b),
and the document is yet to be presented or released, or included in a document to be presented or released, as the case may be.
30. DELETION OF EXEMPT MATTER
Subject to section 33, if -
(a) an application is made for access to a document containing exempt matter (including a document that is the subject of a certificate under section 34, 35 or 40);
(b) it is practicable to give access to a copy of the document from which the exempt matter has been deleted; and
(c) it appears to the agency or Minister concerned (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy,
the agency or Minister is to give access accordingly.
31. PERSONS WHO ARE TO MAKE DECISIONS FOR AGENCIES AND MINISTERS
(1) An application is to be dealt with on behalf of an agency -
(a) by the agency's principal officer; or
(b) by such other officer of the agency as the principal officer directs, either generally or in a particular case.
(2) An application for access to an official document of a Minister may be dealt with by such person as the Minister directs, either generally or in a particular case.
32. NOTIFICATION OF DECISIONS AND REASONS
(1) An agency or Minister is to give written notice to an applicant for access of -
(a) the decision on the application; and
(b) if the application relates to a document that is not held by the agency or Minister, the fact that the document is not so held.
(2) The notice must specify -
(a) the day on which the decision was made;
(b) the amount of any charge that was payable for making the application;
(c) if access is to be given to the document the subject of the application (whether immediately or subject to deferral), the amount of any charge payable for giving access;
(d) if access is to be given to a copy of the document subject to the deletion of exempt matter -
(i) the fact that the document is such a copy;
(ii) the provision of this Act under which the matter is exempt matter; and
(iii) the reasons for the decision classifying the matter as exempt matter;
(e) if access to the document is to be given subject to deferral -
(i) the reason for the deferral; and
(ii) the day on which the agency or Minister expects the document to be presented or released as referred to in section 30;
(f) if access to the document is refused, the reasons for the refusal;
(g) details of any public interest considerations on which the decision was based;
(h) the name and designation of the officer who made the decision; and
(j) the rights of review conferred by this Act in relation to the decision, the procedures to be followed for exercising the rights and the time within which an application for review must be made.
(3) An agency or Minister is not required to include any exempt matter in the notice.
33. INFORMATION AS TO EXISTENCE OF CERTAIN DOCUMENTS
(1) Nothing in this Act requires an agency or Minister to give information as to the existence or non-existence of a document containing matter that would be exempt matter under section 34, 35 or 40.
(2) If an application relates to a document that includes exempt matter of that kind, the agency or Minister concerned is to give written notice to the applicant that -
(a) the agency or Minister neither confirms nor denies the existence of such a document as a document of the agency or an official document of the Minister; and
(b) if the document existed it would be an exempt document and, for that reason, access would be refused.
(3) A notice given under subsection (2) must specify -
(a) the day on which the decision was made;
(b) the amount of any charge that was payable for making the application;
(c) the name and designation of the officer who made the decision; and
(d) the rights of review conferred by this Act in relation to the decision, the procedures to be followed for exercising the rights and the time within which an application for review must be made.
Division 2 - Exempt Matter
34. CABINET MATTER
(1) Matter is exempt matter if -
(a) it has been submitted, or is proposed by a Minister to be submitted, to Cabinet for its consideration and was brought into existence for the purpose of submission for consideration by Cabinet;
(b) it is, or forms part of, an official record of Cabinet;
(c) it is a draft of matter referred to in paragraph (a) or (b);
(d) it is a copy of, or contains an extract from, matter or a draft of matter referred to in paragraph (a), (b) or (c); or
(e) its disclosure would involve the disclosure of any deliberation or decision of Cabinet, other than matter that has been officially published by decision of Cabinet.
(2) Matter is not exempt under subsection (l) if it is purely factual or statistical matter unless -
(a) the disclosure of the matter under this Act would involve the disclosure of any deliberation or decision of Cabinet; and
(b) the fact of the deliberation or decision has not been officially published by decision of Cabinet.
(3) For the purposes of this Act, a certificate signed by the Minister certifying that matter is of a kind referred to in subsection (1) establishes, subject to Part 5, that it is exempt matter.
(4) For the purposes of this Act, a certificate signed by the Minister certifying that matter described in an application for access to a document would, if it existed, be of a kind referred to in subsection (1) establishes, subject to Part 5, that, if such matter exists, it is exempt matter.
(5) In this section "Cabinet" includes a Cabinet committee.
35. EXECUTIVE COUNCIL MATTER
(1) Matter is exempt matter if -
(a) it has been submitted, or is proposed by a Minister to be submitted, to Executive Council for its consideration and was brought into existence for the purpose of submission for consideration by Executive Council;
(b) it is, or forms part of, an official record of Executive Council;
(c) it is a draft of matter referred to in paragraph (a) or (b);
(d) it is a copy of, or contains an extract from, matter or a draft of matter referred to in paragraph (a), (b) or (c); or
(e) its disclosure would involve the disclosure of any deliberation or advice of Executive Council, other than matter that has been officially published by decision of the Administrator.
(2) Matter is not exempt under subsection (l) if it is purely factual or statistical matter unless -
(a) the disclosure of the matter under this Act would involve the disclosure of any deliberation or advice of Executive Council; and
(b) the fact of the deliberation or advice has not been officially published by decision of the Administrator.
(3) For the purposes of this Act, a certificate signed by the Minister certifying that matter is of a kind referred to in subsection (1) establishes, subject to Part 5, that it is exempt matter.
(4) For the purposes of this Act, a certificate signed by the Minister certifying that matter described in an application would, if it existed, be of a kind referred to in subsection (1) establishes, subject to Part 5, that, if such matter exists, it is exempt matter.
36. MATTER AFFECTING RELATIONS WITH OTHER GOVERNMENTS
Matter is exempt matter if its disclosure could reasonably be expected to -
(a) cause damage to relations between the Territory and another government; or
(b) divulge information of a confidential nature that was communicated in confidence by or on behalf of another government,
unless its disclosure would, on balance, be in the public interest.
37. MATTER RELATING TO INVESTIGATIONS BY OMBUDSMAN OR AUDITS BY AUDITOR-GENERAL
Matter is exempt matter if its disclosure could reasonably be expected to prejudice the conduct of -
(a) an investigation by the Ombudsman; or
(b) an audit by the Auditor-General,
unless its disclosure would, on balance, be in the public interest.
38. MATTER CONCERNING CERTAIN OPERATIONS OF AGENCIES
Matter is exempt matter if its disclosure could reasonably be expected to -
(a) prejudice the effectiveness of a method or procedure for the conduct of tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of a test, examination or audit conducted by an agency;
(c) have a substantial adverse effect on the management or assessment by an agency of the agency's personnel; or
(d) have a substantial adverse effect on the conduct of industrial relations by an agency,
unless its disclosure would, on balance, be in the public interest.
39. MATTER RELATING TO DELIBERATIVE PROCESSES
(1) Matter is exempt matter if its disclosure -
(a) would disclose -
(i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or
(ii) a consultation or deliberation that has taken place,
in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and
(b) would, on balance, be contrary to the public interest.
(2) Matter is not exempt under subsection (l) if it merely consists of -
(a) matter that appears in an agency's policy document;
(b) factual or statistical matter; or
(c) expert opinion or analysis by a person recognised as an expert in the field of knowledge to which the opinion or analysis relates.
(3) Matter is not exempt under subsection (l) if it consists of -
(a) a report of a prescribed body or organisation established within an agency; or
(b) the record of, as a formal statement of the reasons for, a final decision, order or ruling given in the exercise of -
(i) a power;
(ii) an adjudicative function;
(iii) a statutory function; or
(iv) the administration of a publicly funded scheme.
40. MATTER RELATING TO LAW ENFORCEMENT OR PUBLIC SAFETY
(1) Matter is exempt matter if its disclosure could reasonably be expected to -
(a) prejudice the investigation of a contravention or possible contravention of the law (including revenue law) in a particular case;
(b) enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained;
(c) endanger a person's life or physical safety;
(d) prejudice a person's fair trial or the impartial adjudication of a case;
(e) prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law);
(f) prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety;
(g) endanger the security of a building, structure or vehicle;
(h) prejudice a system or procedure for the protection of persons, property or environment;
(j) facilitate a person's escape from lawful custody; or
(k) prejudice the wellbeing of a cultural or natural resource or the habitat of animals or plants.
(2) Matter is not exempt under subsection (l) if -
(a) it consists of -
(i) matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law;
(ii) matter containing a general outline of the structure of a program adopted by an agency for dealing with a contravention or possible contravention of the law;
(iii) a report on the degree of success achieved in a program adopted by an agency for dealing with a contravention or possible contravention of the law;
(iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law; or
(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation; and
(b) its disclosure would, on balance, be in the public interest.
(3) For the purposes of this Act, a certificate signed by the Minister certifying that matter is of a kind referred to in subsection (1), but not of a kind referred to in subsection (2), establishes, subject to Part 5, that it is exempt matter.
(4) A reference in this section to a contravention or possible contravention of the law includes a reference to an offence or possible offence within the meaning of Division 2 of Part 4 of the Criminal Code.
(5) In this section "law" includes law of the Commonwealth, another Territory of the Commonwealth, a State or a foreign country.
41. MATTER AFFECTING LEGAL PROCEEDINGS
(1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.
(2) Matter is not exempt under subsection (l) merely because it appears in an agency's policy document.
42. MATTER AFFECTING PERSONAL AFFAIRS
(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest.
(2) Matter is not exempt under subsection (l) merely because it relates to information concerning the personal affairs of the person by whom, or on whose behalf, an application for access to a document containing the matter is being made.
(3) If -
(a) an application is made to an agency or Minister for access to a document of the agency or an official document of the Minister that contains information of a medical or psychiatric nature concerning the person making the application; and
(b) it appears to the principal officer of the agency or the Minister that the disclosure of the information to the person might be prejudicial to the physical or mental health or well-being of the person,
the principal officer or Minister may direct that access to the document is not to be given to the person but is to be given instead to a qualified medical practitioner nominated by the person and approved by the principal officer or Minister.
(4) An agency or Minister may appoint a qualified medical practitioner to make a decision under subsection (3) on behalf of the agency or Minister.
43. MATTER RELATING TO TRADE SECRETS, BUSINESS AFFAIRS AND RESEARCH
(1) Matter is exempt matter if -
(a) its disclosure would disclose trade secrets of an agency or another person;
(b) its disclosure -
(i) would disclose information (other than trade secrets) that has a commercial value to an agency or another person; and
(ii) could reasonably be expected to destroy or diminish the commercial value of the information; or
(c) its disclosure -
(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and
(ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government,
unless its disclosure would, on balance, be in the public interest.
(2) Matter is not exempt under subsection (l) merely because it concerns the business, professional, commercial or financial affairs of the person by, or on whose behalf, an application for access to the document containing the matter is being made.
(3) Matter is exempt matter if -
(a) it would disclose the purpose or results of research (including research that is yet to be started or finished); and
(b) its disclosure could reasonably be expected to have an adverse effect on the agency or other person by or on whose behalf the research is being, or is intended to be, carried out.
(4) Matter is not exempt under subsection (3) merely because it concerns research that is being, or is intended to be, carried out by the agency or other person by, or on whose behalf, an application for access to the document containing the matter is being made.
44. MATTER COMMUNICATED IN CONFIDENCE
(1) Matter is exempt if -
(a) its disclosure would found an action for breach of confidence; or
(b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest.
(2) Subsection (l) does not apply to matter of a kind referred to in section 39(1)(a) unless its disclosure would found an action for breach of confidence owed to a person or body other than -
(a) a person in the capacity of -
(i) a Minister;
(ii) a member of the staff of, or a consultant to, a Minister; or
(iii) an officer of an agency; or
(b) the Territory or an agency.
45. MATTER AFFECTING THE ECONOMY OF THE TERRITORY
(1) Matter is exempt matter if its disclosure could reasonably be expected -
(a) to have a substantial adverse effect on the ability of government to manage the economy of the Territory; or
(b) to expose any person or class of persons to an unfair advantage or disadvantage because of the premature disclosure of information concerning proposed action or inaction of the Parliament or government in the course of, or for the purpose of, managing the economy of the Territory,
unless its disclosure would, on balance, be in the public interest
(2) Without limiting subsection (l)(a), that provision applies to matter the disclosure of which would reveal -
(a) the consideration of a contemplated movement in government taxes, fees or charges; or
(b) the imposition of credit controls.
46. MATTER TO WHICH SECRECY PROVISIONS OF ENACTMENTS APPLY
(1) Matter is exempt matter if -
(a) there is in force an enactment applying specifically to matter of that kind, and prohibiting persons referred to in the enactment from disclosing matter of that kind (whether the prohibition is absolute or subject to exceptions or qualifications); and
(b) its disclosure would, on balance, be contrary to the public interest.
(2) Matter is not exempt under subsection (l) if it relates to information concerning the personal affairs of the person by whom, or on whose behalf, an application for access to the document containing the matter is being made.
(3) This section expires on the expiration of 2 years after the commencement of this Act.
47. MATTER AFFECTING FINANCIAL OR PROPERTY INTERESTS
Matter is exempt matter if its disclosure could reasonably be expected to have a substantial adverse effect on the financial or property interests of the Territory or an agency unless its disclosure would, on balance, be in the public interest.
48. MATTER DISCLOSURE OF WHICH WOULD BE CONTEMPT OF PARLIAMENT OR CONTEMPT OF COURT
Matter is exempt matter if its public disclosure would, apart from this Act and any immunity of the Crown -
(a) be in contempt of a court;
(b) be contrary to an order made or direction given by -
(i) a royal commission or commission of inquiry; or
(ii) a person or body having power to take evidence on oath; or
(c) infringe the privileges of -
(i) Parliament;
(ii) the Parliament of the Commonwealth, of a State or a House of such a Parliament; or
(iii) the Legislative Assembly of the Australian Capital Territory or Norfolk Island.
Division 3 - Consultation
49. DISCLOSURE THAT MAY REASONABLY BE EXPECTED TO BE OF SUBSTANTIAL CONCERN
(1) An agency or Minister may give access to a document that contains matter the disclosure of which may reasonably be expected to be of substantial concern to a government, agency or person only if the agency or Minister has taken such steps as are reasonably practicable to obtain the views of the government, agency or person concerned about whether or not the matter is exempt matter.
(2) If -
(a) the agency or Minister decides, after having sought the views of the government, agency or person concerned, that the matter is not exempt matter; and
(b) that government, agency or person believes that the matter is exempt matter,
the agency or Minister must -
(c) give written notice to the government, agency or person concerned of -
(i) the decision of the agency or Minister;
(ii) the reasons for the decision;
(iii) the rights of review conferred by this Act in relation to the decision; and
(iv) the procedures to be followed in exercising those rights;
(d) give written notice to the applicant of the decision; and
(e) defer giving access to the document until after the end of the period within which any application for review under this Act may be made or, if such an application is made, until after the application is finally disposed of.
(3) In this section "person concerned", in relation to a person who has died, means the person's closest living relative.
Division 4 - Internal Review
50. INTERNAL REVIEW
(1) A person who is aggrieved by a decision of an agency made under this Part is entitled to a review of the decision.
(2) An application for review of a decision must -
(a) be in writing;
(b) specify an address in Australia to which notices under this Act may be sent to the applicant; and
(c) be lodged at an office of the agency within 28 days after the day on which notice of the decision was given to the applicant or within such further time as the agency's principal officer allows (whether before or after the end of that period).
(3) A person is not entitled to a review under this section of a decision made -
(a) on an application made under this section; or
(b) by an agency's principal officer.
(4) An application under this section is to be dealt with as if it were an application for access to a document under section 23.
(5) An application under this section must not be dealt with by -
(a) the person who dealt with the original application; or
(b) a person who is less senior than that person.
(6) If an agency does not decide an application under this section within 14 days after receiving it, the agency is taken to have made a decision at the end of the period affirming the original decision.
(7) For the purposes of this section, a person is aggrieved by a decision -
(a) if the decision relates to an application made by the person under section 23 and is to the effect that -
(i) the agency or delegate of the Minister refuses to give the applicant access to a document;
(ii) access to a document is to be given to the applicant subject to deferral;
(iii) access to a document is to be given to the applicant subject to the deletion of exempt matter;
(iv) access to a document is to be given to the applicant subject to a charge for making the application, or for giving access to a document, that the applicant considers to be unreasonable; or
(v) a charge for making the application, or for giving access to a document, that the applicant considers to have been unreasonably incurred is payable by the applicant; or
(b) if the decision relates to an application by another person under section 23 for access to a document and -
(i) the agency should have taken, but has not taken, such steps as are reasonably practicable to obtain the views of the person as to whether or not the document contained matter that is exempt matter; or
(ii) the agency has obtained the views of the person but the decision is not in accordance with the views.
PART 4 - AMENDMENT OF INFORMATION
Division 1 - Application for Amendment of Information
51. PERSON MAY REQUEST AMENDMENT OF INFORMATION
If a person has had access to a document from an agency or Minister (whether or not under this Act) containing information relating to -
(a) the person's personal affairs; or
(b) the personal affairs of a deceased person to whom the person is next-of-kin,
the person is entitled to apply to the agency or Minister for correction or amendment of any part of the information if it is inaccurate, incomplete, out-of-date or misleading.
52. FORM OF APPLICATION FOR AMENDMENT OF INFORMATION
An application under section 51 must -
(a) be in writing;
(b) specify an address to which a notice under section 55 may be sent to the applicant;
(c) give particulars of the matters in relation to which the applicant believes the information kept by the agency or Minister is inaccurate, incomplete, out-of-date or misleading; and
(d) specify the amendments that the applicant wishes to be made.
53. AGENCY OR MINISTER MAY AMEND INFORMATION
If an agency or Minister to whom an application is made under section 51 decides to amend the information to which the application relates, the agency or Minister may make the amendment by -
(a) altering the information; or
(b) adding an appropriate notation to the information.
54. NOTATION TO INFORMATION
If an agency or Minister adds a notation to information, the notation must -
(a) specify the respects in which the information is inaccurate, incomplete, out-of-date or misleading; and
(b) if the information is claimed to be incomplete or out-of-date, set out such information as is required to complete the information or bring it up-to-date.
55. TIME WITHIN WHICH AGENCY OR MINISTER MUST NOTIFY APPLICANT
If an application is made to an agency or Minister under section 51, the agency or Minister must take all reasonable steps to give the applicant written notice of a decision on the application as soon as practicable, but in any case not later than 30 days, after the day on which the application is received.
56. DECISION TO BE MADE BY AUTHORISED PERSON AND REASONS GIVEN
(1) Section 31 applies to an application made under section 51.
(2) Section 32(1)(a) and (2)(a), (f), (h) and (j) applies to a decision made under this Part refusing to amend information in like way as it applies to a decision refusing to give access to a document.
57. CERTAIN NOTATIONS REQUIRED TO BE ADDED
(1) In this section "agency" includes a Minister.
(2) If an agency has refused to amend information, the applicant may, whether or not the applicant has applied to the Ombudsman for review of the decision, by written notice, require the agency to add to the information a notation -
(a) specifying the respects in which the applicant claims the information to be inaccurate, incomplete, out-of-date or misleading; and
(b) if the applicant claims the information to be incomplete or out-of--date, setting out such information as the applicant claims is necessary to complete the information or to bring it up-to-date.
(3) An agency must comply with the requirements of a notice under this section, and must cause written notice of the nature of the notation to be given to the applicant.
(4) If an agency discloses to a person (including another agency and a Minister) any information contained in the part of its documents to which a notice under this section relates, the agency -
(a) must ensure that there is given to the person, when the information is disclosed, a statement -
(i) stating that the person, or next-of-kin of the person, to whom the information relates, claims that the information is inaccurate, incomplete, out-of-date or misleading; and
(ii) setting out particulars of the notation added under this section; and
(b) may include in the statement the reason for the agency's refusal to amend the information as requested.
(5) This section is not intended to prevent or discourage agencies from giving particulars of a notation added to its documents under this section to a person (including another agency and a Minister) to whom information contained in the documents was given before the commencement of this section.
Division 2 - Internal Review
58. INTERNAL REVIEW
(1) A person who is aggrieved by a decision of an agency made under this Part is entitled to a review of the decision.
(2) An application for review of a decision must -
(a) be in writing;
(b) specify an address in Australia to which notices under this Act may be sent to the applicant; and
(c) be lodged at an office of the agency not later than 28 days after the day on which notice of the decision was given to the applicant or within such further time as the agency's principal officer allows (whether before or after the end of that period).
(3) A person is not entitled to a review under this section of a decision made -
(a) on an application made under this section; or
(b) an agency's principal officer.
(4) An application under this section is to be dealt with as if it were an application under section 51.
(5) An application under this section must not be dealt with by -
(a) the person who dealt with the original application; or
(b) a person who is less senior than that person.
(6) If an agency does not decide an application under this section within 14 days after receiving it, the agency is taken to have made a decision at the end of the period refusing to amend the information to which the application relates.
(7) For the purposes of this section, a person is aggrieved by a decision if the decision -
(a) relates to an application made by the person under section 51; and
(b) is to the effect that the agency refuses to amend information in accordance with the application.
PART 5 - EXTERNAL REVIEW OF DECISIONS
Division 1 - Functions of Ombudsman
59. FUNCTIONS OF OMBUDSMAN
(1) The functions of the Ombudsman, in relation to this Act, are to investigate and review decisions of agencies and Ministers of the following kinds -
(a) decisions under section 18 not to publish statements of affairs or as to whether a statement of affairs complies with Part 2;
(b) decisions refusing to grant access to documents in accordance with applications under section 23;
(c) decisions deferring providing access to documents;
(d) decisions giving access to documents subject to the deletion of exempt matter;
(e) decisions as to the amount of charges required to be paid before access to documents is granted, whether or not the charge has already been paid;
(f) decisions -
(i) to disclose documents contrary to the views of a person obtained under section 49; and
(ii) not to amend information in accordance with applications under section 51.
(2) The functions of the Ombudsman also include investigating and reviewing the grounds for a decision to issue a certificate under section 34, 35 or 40.
(3) The Ombudsman has power to do all things that are necessary or convenient to be done for or in connection with the performance of the Ombudsman's functions.
Division 2 - Conduct of Review
60. PROCEDURE ON REVIEW
(1) On a review under this Part -
(a) the procedure to be followed is, subject to this Act, within the discretion of the Ombudsman;
(b) proceedings are to be conducted in accordance with the rules of natural justice and with as little formality and technicality and as much expedition as the requirements of this Act and a proper consideration of the matters before the Ombudsman permits; and
(c) the Ombudsman is not bound by the rules of evidence and may inform himself or herself on any matter in any way the Ombudsman considers appropriate.
(2) The Ombudsman may, during a review, give directions as to the procedure to be followed on the review.
61. APPLICATIONS FOR REVIEW
(1) An application for review must -
(a) be in writing;
(b) specify an address of the applicant to which notices may be sent under this Act;
(c) give particulars of the decision for review; and
(d) be made -
(i) no later than 60 days; or
(ii) if the application is for review of a decision referred to in section 59(1)(f)(i) - within 28 days,
from the day on which written notice of the decision is given to the applicant, or within such longer period as the Ombudsman allows (whether before or after the end of that period).
(2) The application may contain particulars of the basis on which the applicant disputes the decision under review.
(3) A person is not entitled to apply to the Ombudsman for review of a decision (other than a decision of a Minister or the principal officer of an agency) unless -
(a) the person has made an application under section 50 or 58 in relation to the decision; and
(b) the person has been informed of the result of that review or the period of 14 days referred to in section 50(6) or 58(6) has ended.
62. OMBUDSMAN TO NOTIFY
Before starting a review, the Ombudsman must -
(a) inform the applicant and the agency or Minister concerned; and
(b) take such steps as are practicable to inform another person who the Ombudsman considers would be affected by the decision the subject of the review,
that the decision is to be reviewed.
63. PRELIMINARY INQUIRIES
If an application has been made to the Ombudsman, the Ombudsman may, for the purpose of determining -
(a) whether the Ombudsman has power to review the matter to which the application relates; or
(b) whether the Ombudsman may decide not to review the matter,
make inquiries of the applicant or the agency or Minister concerned.
64. INSPECTION OF EXEMPT DOCUMENTS BY OMBUDSMAN
(1) The Ombudsman may require the production of a document or matter for inspection for the purpose of enabling the Ombudsman to determine -
(a) whether the document or matter is exempt; or
(b) if a document in the possession of a Minister is claimed by the Minister not to be an official document of the Minister, whether the document is an official document of the Minister.
(2) The Ombudsman must do all things necessary to ensure -
(a) that a document or matter produced to the Ombudsman under subsection (l) is not disclosed to a person other than a member of the staff of the Ombudsman in the course of performing duties as a member of the staff; and
(b) the return of the document or matter to the person who produced it at the end of the review.
65. OMBUDSMAN MAY DECIDE NOT TO REVIEW
(1) The Ombudsman may decide not to review, or not to review further, a decision in relation to which an application has been made under section 61 if the Ombudsman is satisfied that the application is frivolous, vexatious, misconceived or lacking in substance.
(2) If the Ombudsman decides not to review, or not to review further, a matter to which an application relates, the Ombudsman must, as soon as practicable and in the manner that the Ombudsman considers appropriate, inform -
(a) the applicant;
(b) the agency or Minister concerned; and
(c) any other person informed under section 62(b),
in writing, of the decision and of the reasons for the decision.
66. PARTICIPANTS IN REVIEW
(1) The applicant and the agency or Minister concerned are participants in a review.
(2) Any person affected by the decision the subject of the review (including, if the review concerns matter that is claimed to be exempt matter, a person whose views must be sought under section 49 in relation to the matter) may apply to the Ombudsman to participate in the review.
(3) The Ombudsman may allow such a person to participate in the review in such way as the Ombudsman directs.
67. APPLICATIONS WHERE DECISIONS DELAYED
(1) Subject to this section, if -
(a) an application has been made to an agency or Minister under this Act;
(b) the time period provided in section 25(4) or 55 has ended; and
(c) notice of a decision on the application has not been received by the applicant,
the principal officer of the agency or the Minister is, for the purpose of enabling an application to be made to the Ombudsman under section 61, taken to have made a decision refusing to grant access to the document on the last day of the relevant time period.
(2) If an application is made by virtue of this section, the Ombudsman, may on the application of the agency or Minister concerned, allow further time to the agency or Minister to deal with the application (whether before or after the end of the time period provided in section 25(4) or 55).
(3) A decision under subsection (2) may be made subject to such conditions as the Ombudsman considers appropriate, including a condition that, if a decision is made during the further time to grant access to a document, any charge that was required to be paid before access is granted must be reduced or waived.
(4) A reference in this section to an application made to an agency or Minister under this Act includes a reference to a notice served on a principal officer under section 18(1).
68. MEDIATION
(1) The Ombudsman may, at any time during a review, try to effect a settlement between the participants.
(2) The Ombudsman may suspend a review at any time to allow the participants in the review to negotiate a settlement.
69. ONUS TO LIE WITH AGENCIES AND MINISTERS
On a review by the Ombudsman, the agency that or Minister who made the decision under review has the onus of establishing that the decision was justified or that the Ombudsman should give a decision adverse to the applicant.
70. REQUIREMENT TO PROVIDE BETTER REASONS
If -
(a) an application under section 61 is made for review of a decision of an agency or a Minister;
(b) the agency or Minister was required to provide a statement to the applicant of the reasons for the decision; and
(c) the Ombudsman considers that the statement is not adequate,
the Ombudsman may require the agency or Minister to provide to the applicant and the Ombudsman an additional statement as soon as practicable, but in any case within 28 days after the date on which written notice of the requirement is given by the Ombudsman, containing further and better particulars in relation to the matters set out in the first statement.
71. CONDUCT OF REVIEWS
(1) Subject to subsection (2), if, during a review, the Ombudsman proposes to -
(a) allow a participant to make oral submissions; or
(b) take evidence on oath or affirmation,
that part of the review is to be conducted in public unless the Ombudsman otherwise determines.
(2) The Ombudsman may, for the purposes of a review, obtain information from such persons, and make such inquiries, as the Ombudsman considers appropriate.
(3) In conducting a review, the Ombudsman must -
(a) adopt procedures that are fair, having regard to the obligations of the Ombudsman under this Act; and
(b) ensure that each participant has an opportunity to present the participant's views to the Ombudsman;
but, subject to paragraph (a), it is not necessary for a participant to be given an opportunity to appear before the Ombudsman.
(4) If the Ombudsman gives a participant an opportunity to appear before the Ombudsman, the participant may, with the approval of the Ombudsman, be represented by another person.
72. REVIEW OF MINISTER'S CERTIFICATES
(1) If a certificate has been given in respect of matter under section 34, 35 or 40, the Ombudsman may, on the application of an applicant for review, consider the grounds on which the certificate was given.
(2) If, after considering the matter, the Ombudsman is satisfied that there were no reasonable grounds for the issue of the certificate, the Ombudsman must -
(a) make a written decision to that effect; and
(b) include in the decision the reasons for the decision.
(3) A certificate the subject of a decision under subsection (2) ceases to have effect at the end of 28 days after the decision was made unless, before that time, the Minister notifies the Ombudsman in writing that the certificate is confirmed.
(4) The Minister must cause a copy of a notice given under subsection (3) to be -
(a) tabled in the Parliament within 5 sitting days after it was given; and
(b) given to the applicant.
(5) A notice under subsection (3) must specify the reasons for the decision to confirm the certificate.
(6) If the Minister withdraws a certificate the subject of a decision under subsection (2) before the end of the period of 28 days referred to in subsection (3), the Minister must, as soon as practicable, notify the Ombudsman and each participant.
73. POWER TO OBTAIN INFORMATION AND DOCUMENTS AND COMPEL ATTENDANCE
(1) If the Ombudsman has reason to believe that a person has information or a document relevant to a review under this Division, the Ombudsman may give to the person a written notice requiring the person -
(a) to give the information to the Ombudsman 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 Ombudsman.
(2) The notice must state -
(a) the place at which the information or document is to be given or produced to the Ombudsman; and
(b) a reasonable time at which, or a reasonable period within which, the information or document is to be given or produced.
(3) If the Ombudsman has reason to believe that a person has information relevant to a review under this Division, the Ombudsman may give to the person a written notice requiring the person to attend before the Ombudsman at a reasonable time and place specified in the notice to answer questions relevant to the review.
74. POWER TO EXAMINE WITNESSES
(1) The Ombudsman may administer to a person required under section 73 to attend before the Ombudsman an oath or affirmation and may examine the person on oath or affirmation.
(2) 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.
75. OMBUDSMAN TO ENSURE NON-DISCLOSURE OF CERTAIN MATTER
(1) On a review, the Ombudsman may give such directions as the Ombudsman considers necessary in order to avoid the disclosure to the applicant or the applicant's representative of exempt matter or information of the kind referred to in section 33.
(2) The Ombudsman -
(a) must not, in a decision on a review or in reasons for such a decision, include matter or information of a kind referred to in subsection (l); and
(b) may receive evidence, or hear argument, in the absence of a participant or a representative of a participant if it is necessary to do so to prevent disclosure to that person of matter or information of that kind.
(3) If an application under section 61 relates to a document or part of a document access to which has been refused under section 34, 35 or 40, the Ombudsman may give findings in terms that neither confirm nor deny the existence of the document.
76. POWERS OF OMBUDSMAN ON REVIEW
(1) In the conduct of a review, the Ombudsman has, in addition to any other power, the power to -
(a) review any decision that has been made by an agency or Minister in relation to the application concerned; and
(b) decide any matter in relation to the application that could, under this Act, have been decided by an agency or Minister,
and any decision of the Ombudsman under this section has the same effect as a decision of the agency or Minister.
(2) If it is established that a document is an exempt document, the Ombudsman does not have power to direct that access to the document is to be granted.
77. DECISIONS OF OMBUDSMAN
(1) The Ombudsman, after conducting a review of a decision (other than a review under section 72), must make a written decision -
(a) affirming the decision;
(b) varying the decision; or
(c) setting aside the decision and making a decision in substitution for the decision.
(2) The Ombudsman must include in the decision the reasons for the decision.
(3) The Ombudsman must give a copy of the decision to each participant.
(4) The Ombudsman may arrange to have decisions published.
Division 3 - Miscellaneous
78. DELEGATION
The Ombudsman may delegate to a member of the Ombudsman's staff all or any of the Ombudsman's powers under this Act, other than the power to compel the production of matter that is the subject of a certificate under section 34, 35 or 40.
79. PROTECTION OF OMBUDSMAN FROM PERSONAL LIABILITY
(1) The Ombudsman, or a member of the Ombudsman's staff, incurs no civil liability for an act or omission done or omitted to be done, in good faith and without negligence under, or for the purposes of, this Act.
(2) A liability that would, but for this section, attach to the Ombudsman or a member of the Ombudsman's staff attaches to the Territory.
80. 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 or Ministers, whether imposed under an enactment or a rule of law, applies to the disclosure of information to the Ombudsman for the purposes of a review under this Part.
(2) Legal professional privilege does not apply to the production of documents or the giving of evidence by a member of an agency or a Minister for the purposes of a review under this Part.
(3) Subject to subsections (l) and (2), every participant in a review has the same privileges in relation to the giving of evidence and producing documents and things that the person would have as a witness in a proceeding before a court.
81. SECRECY
If a person who is or has been the Ombudsman or a member of the staff of the Ombudsman, otherwise than for the purposes of this Act or a proceeding arising under this Act, discloses any information that the person obtained in the course of the exercise of powers or the performance of functions under this Act or takes advantage of that information to benefit himself or herself or another person, the person commits an offence.
Penalty: $1,000 or imprisonment for 6 months.
82. FAILURE TO PRODUCE DOCUMENTS OR ATTEND PROCEEDINGS
A person given notice under section 73 to -
(a) give information;
(b) produce a document; or
(c) attend before the Ombudsman,
must not, without reasonable excuse, fail to do so.
Penalty: $500.
83. COSTS OF REVIEW
The costs incurred by a participant in a review are to be paid by the participant.
84. DISCIPLINARY ACTION
If the Ombudsman, at the completion of a review, is of the opinion that -
(a) there is evidence that an agency's officer has committed a breach of duty or misconduct in the administration of this Act; and
(b) the evidence is, in all the circumstances, of sufficient force to justify doing so;,
the Ombudsman must bring the evidence to the notice of -
(c) if the person is the principal officer of an agency - the responsible Minister of the agency; or
(d) in any other case - the principal officer of the agency.
85. REFERENCE OF QUESTIONS OF LAW TO SUPREME COURT
(1) The Ombudsman may, at the request of a participant in the review or on the Ombudsman's own initiative, refer a question of law arising on a review to the Supreme Court for decision.
(2) The Supreme Court has jurisdiction to hear and determine a question of law referred to it under this section.
(3) If a question of law is referred to the Supreme Court under this section, the Ombudsman must not -
(a) make a decision on the review to which the question is relevant while the reference is pending; or
(b) proceed in a way, or make a decision, that is inconsistent with the Supreme Court's determination of the question.
86. COSTS IN PROCEEDINGS
If a proceeding arising out of the exercise of the powers or the performance of the functions of the Ombudsman is instituted by the Territory, the reasonable costs of a party to the proceeding are to be paid by the Territory.
87. OMBUDSMAN MAY APPEAR IN PROCEEDINGS
The Ombudsman is entitled to appear and be heard in a proceeding arising out of the exercise of the powers or the performance of the functions of the Ombudsman.
88. INTERVENTION BY ATTORNEY-GENERAL
(1) The Attorney-General may, on behalf of the Territory, intervene in a proceeding before a court arising out of the exercise of the powers or the performance of the functions of the Ombudsman under this Act.
(2) If the Attorney-General intervenes -
(a) the Attorney-General becomes a party to the proceeding; and
(b) the court may make an order as to costs against the Territory as the court considers appropriate.
89. REPORTS OF OMBUDSMAN
(1) The Ombudsman may, in his or her discretion, make a report to the Parliament on matters relating to a particular review.
(2) The Ombudsman must, at the time of furnishing to the Minister a report under section 28 of the Ombudsman (Northern Territory) Act, submit a report of the operations of the Ombudsman in relation to this Act during the preceding year.
(3) The Parliament may require the Ombudsman to prepare and submit to the Parliament a report on a particular aspect of the exercise of the Ombudsman's powers or the performance of the Ombudsman's functions in relation to this Act.
PART 6 - MISCELLANEOUS
90. PROTECTION AGAINST ACTIONS FOR DEFAMATION OR BREACH OF CONFIDENCE
(1) If access has been given to a document and -
(a) the access was required or permitted by this Act to be given; or
(b) the access was authorised by a Minister, or by an officer having authority under section 31 to make decisions in relation to applications, in the genuine belief that the access was required or permitted to be given by this Act,
then no action for defamation or breach of confidence lies -
(c) against the Territory, an agency, a Minister or an officer because access was authorised or given; or
(d) in relation to a publication involved in or resulting from the access, against the author of a document or any other person because the author or the other person supplied the document to an agency or Minister.
(2) The giving of access to a document (including an exempt document) because of an application must not be taken for the purposes of the law relating to defamation or breach of confidence to constitute an authorisation or approval of the publication of the document or its contents by the person to whom access is given.
91. PROTECTION IN RESPECT OF OFFENCES
If access has been given to a document and -
(a) the access was required or permitted by this Act to be given; or
(b) the access was authorised by a Minister, or by an officer having authority under section 31 to make decisions in relation to applications, in the genuine belief that the access was required or permitted to be given by this Act,
neither the person authorising the access nor any other person concerned in the giving of the access commits a criminal offence merely because of authorising or giving of the access.
92. PROTECTION OF AGENCY ETC. FROM PERSONAL LIABILITY
(1) Neither -
(a) an agency, an agency's principal officer or a Minister; nor
(b) a person acting under the direction of an agency, an agency's principal officer or a Minister;
incurs civil liability for an act or omission done or omitted to be done in good faith and without negligence under, or for the purposes of, this Act.
(2) A liability that would, but for this section, attach to a body or person referred to in subsection (l) attaches instead to the Territory.
93. PRECAUTIONS
If an application is made under section 23 for documents that relate to the personal affairs of a person, and the documents contain matter that would be exempt matter if the application was made by a person other than the first-mentioned person or the person's agent, an agency or Minister must -
(a) not give access to the information unless the agency or the Minister is satisfied of the identity of the applicant;
(b) ensure, by the adoption of appropriate procedures, that any information intended for the applicant is received -
(i) if the applicant is an agent of a person, only by the person or the agent; or
(ii) in any other case, only by the applicant; and
(c) ensure that, if the applicant is an agent of a person, the agent has the written authority of the person to obtain the information or is otherwise properly authorised by the person to obtain the information.
94. OFFENCE OF UNLAWFUL ACCESS
A person who, in order to gain access to a document containing matter relating to the personal affairs of another person, knowingly deceives or misleads a person exercising powers under this Act, commits an offence.
Penalty: $1,000 or imprisonment for 6 months.
95. REPORT TO PARLIAMENT BY AGENCIES AND MINISTERS
(1) The Minister administering this Act must, as soon as practicable after the end of each financial year, prepare a report on the operation of this Act during that year and cause a copy of the report to be tabled in the Parliament.
(2) The report is to include details of the difficulties (if any) encountered during the year by agencies and Ministers in the administration of this Act.
(3) For the purposes of this section, each responsible Minister must, in relation to the agencies within the Minister's portfolio and the Minister's official documents, comply with any prescribed requirements concerning the information to be included in the report and the records to be kept.
(4) A report under subsection (l) must include, in relation to the financial year to which it relates, particulars of the operations of each agency and Minister under this Act including, in relation to each agency and Minister -
(a) the number of applications made to each agency and to each Minister;
(b) the number of decisions not to give access to a document, the provisions of this Act under which matter was classified as exempt and the number of times each provision was invoked;
(c) the name and designation of each officer with authority to make a decision in relation to an application, and the number of decisions made by each officer that an applicant was not entitled to access to a document pursuant to an application;
(d) the number of applications under sections 50 and 58 for review of a decision, and in relation to each application for review -
(i) the name of the officer who made the decision under review;
(ii) the name and designation of the officer who conducted the review and the decision of the officer; and
(iii) if the officer conducting the review confirmed (in whole or part) a decision classifying matter as exempt matter - the provision of this Act under which that decision was made; and
(e) the number of applications to the Ombudsman under section 61 and in relation to each application -
(i) the written decision of the Ombudsman under section 77;
(ii) the details of any other decision made by the Ombudsman in relation to the application; and
(iii) if the decision in respect of which the application was made was a decision that an applicant is not entitled to access to a document in accordance with an application - the provision of this Act under which the matter was classified as exempt matter;
(f) the number of notices served upon the principal officer of the agency under section 18(1) and the number of decisions by the principal officer which were adverse to the person's claim;
(g) particulars of any disciplinary action taken against an officer in relation to the administration of this Act;
(h) the amount of charges collected by the agency or Minister;
(j) particulars of any reading room or other facility provided by the agency or Minister for use by applicants or members of the community, and the publications, documents or other information regularly on display in that reading room or other facility; and
(k) any other facts that indicate an effort by the agency or Minister to implement and administer this Act.
96. REGULATIONS
The Administrator may make regulations, not inconsistent with this Act, prescribing matters -
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act,
and, in particular, make regulations prescribing fees to be charged for the purpose of this Act._____________________________
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