Section 53AA - Procedure where Tribunal determines that there do not exist reasonable grounds for claim under section 29A

Extract of legislation

      
53AA
Procedure where Tribunal determines that there do not exist reasonable grounds for claim under section 29A

(1)
If, after hearing a proceeding referred to in clause 29C(1) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal determines in relation to a document in respect of which a certificate under section 29A(2) is in force that there do not exist reasonable grounds for the claim that the document is an exempt document under section 29A, the Tribunal must notify the responsible Minister in writing of that determination.

(2)
The responsible Minister must, within 28 days after being notified under subsection (1), make a decision to revoke, or not to revoke, the certificate.

(3)
If the responsible Minister makes a decision under subsection (2) to revoke a certificate—

(a)
any claim made in the certificate is to be taken, for the purposes of this Act, to have been withdrawn; and

(b)
the Minister must immediately inform the applicant of the existence or non-existence of the document to which the certificate related.

(4)
If the Minister makes a decision under subsection (2) not to revoke a certificate, he or she must—

(a)
cause written notice of the decision to be given to the applicant immediately; and

(b)
cause a copy of the notice to be laid before each House of the Parliament within 5 sitting days of that House after the notice is given.

(5)
A notice under subsection (4) must state the Minister’s findings on any material question of fact, the material on which those findings are based, the reasons for the decision and attach a copy of the Tribunal’s notification to the responsible Minister of its determination.

(6)
The Minister is not required to include in a notice under subsection (4) matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document under section 28, 29A, 31(3), 31A or 33.

(7)
The Minister is not required to include in a notice under subsection (4) information as to the existence or non-existence of a document or the existence or non-existence of a state of fact if that information would, if included in a document of an agency, cause that document to be an exempt document under section 28, 29A, 31(3), 31A or 33.

(8)
Nothing in this section is to be taken to imply that a certificate under section 29A(2) cannot be revoked otherwise than in accordance with this section.

Guidelines

When VCAT decides section 29A does not apply

1.1

The Victorian Civil and Administrative Tribunal (VCAT) cannot review a decision to issue a certificate under section 29A(2), but VCAT can determine whether reasonable grounds exist for claiming that section 29A ⁴Section 53AA sets out the procedure where VCAT determines that there are no reasonable grounds for the claim under section 29A.

1.2

If VCAT decides there are no reasonable grounds for claiming the exemption in section 29A, VCAT must notify the responsible Minister of that decision.⁵

1.3

The Minister has 28 days to decide whether or not to revoke the certificate.⁶

Minister revokes the certificate

1.4

If the Minister revokes the certificate, any claim made within the certificate is taken to be withdrawn.

1.5

The Minister must immediately inform the applicant of the existence or non-existence of the relevant document.⁸

Minister does not revoke the certificate

1.6

If the Minister does not revoke the certificate, the Minister must immediately give a written notice of that decision to the applicant.

1.7

The Minister must also give a copy of the notice to each House of Parliament within five sitting days of that House.¹³

1.8

The notice must:

state the Minister’s findings on any material questions of fact;
state the material on which those findings are based;
state the reasons for the decision; and
attach a copy of VCAT’s notification of its determination.¹⁴

1.9

The agency or Minister does not have to include any material in the notice that would make it exempt under section 28, 29A, 31(3), 31A, or 33.¹⁵ The notice is also not required to include information about whether a document or a fact exists or not, if that information would make the notice exempt under section 28, 29A, 31(3), 31A or 33.¹⁶

1.10

A Minister may revoke a certificate under section 29A(2) at any time, they do not need to wait for a determination from VCAT.

More information

Section 50 – Applications for review by the Tribunal

Section 29A – Documents affecting national security, defence or international relations

Freedom of Information Act 1982 (Vic), section 50(5A).
Freedom of Information Act 1982 (Vic), section 53AA(1).
Freedom of Information Act 1982 (Vic), section 53AA(2).
Freedom of Information Act 1982 (Vic), section 50(5A).
Freedom of Information Act 1982 (Vic), section 53AA(1).
Freedom of Information Act 1982 (Vic), section 53AA(2).
Freedom of Information Act 1982 (Vic), section 53AA(3).
Freedom of Information Act 1982 (Vic), section 53AA(3).
Freedom of Information Act 1982 (Vic), section 53AA(4).
Freedom of Information Act 1982 (Vic), section 53AA(5).
Freedom of Information Act 1982 (Vic), section 53AA(6).
Freedom of Information Act 1982 (Vic), section 53AA(7).
Freedom of Information Act 1982 (Vic), section 53AA(4).
Freedom of Information Act 1982 (Vic), section 53AA(5).
Freedom of Information Act 1982 (Vic), section 53AA(6).
Freedom of Information Act 1982 (Vic), section 53AA(7).

Section 53AA - Procedure where Tribunal determines that there do not exist reasonable grounds for claim under section 29A

Extract of legislation

Guidelines

When VCAT decides section 29A does not apply

Minister revokes the certificate

Minister does not revoke the certificate

More information

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53AA	Procedure where Tribunal determines that there do not exist reasonable grounds for claim under section 29A
	(1)	If, after hearing a proceeding referred to in clause 29C(1) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal determines in relation to a document in respect of which a certificate under section 29A(2) is in force that there do not exist reasonable grounds for the claim that the document is an exempt document under section 29A, the Tribunal must notify the responsible Minister in writing of that determination.
	(2)	The responsible Minister must, within 28 days after being notified under subsection (1), make a decision to revoke, or not to revoke, the certificate.
	(3)	If the responsible Minister makes a decision under subsection (2) to revoke a certificate—
		(a)	any claim made in the certificate is to be taken, for the purposes of this Act, to have been withdrawn; and
		(b)	the Minister must immediately inform the applicant of the existence or non-existence of the document to which the certificate related.
	(4)	If the Minister makes a decision under subsection (2) not to revoke a certificate, he or she must—
		(a)	cause written notice of the decision to be given to the applicant immediately; and
		(b)	cause a copy of the notice to be laid before each House of the Parliament within 5 sitting days of that House after the notice is given.
	(5)	A notice under subsection (4) must state the Minister’s findings on any material question of fact, the material on which those findings are based, the reasons for the decision and attach a copy of the Tribunal’s notification to the responsible Minister of its determination.
	(6)	The Minister is not required to include in a notice under subsection (4) matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document under section 28, 29A, 31(3), 31A or 33.
	(7)	The Minister is not required to include in a notice under subsection (4) information as to the existence or non-existence of a document or the existence or non-existence of a state of fact if that information would, if included in a document of an agency, cause that document to be an exempt document under section 28, 29A, 31(3), 31A or 33.
	(8)	Nothing in this section is to be taken to imply that a certificate under section 29A(2) cannot be revoked otherwise than in accordance with this section.