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Contents (2009 - 52)
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Government Information (Public Access) Act 2009 No 52
Current version for 1 July 2017 to date (accessed 22 September 2017 at 10:56)
Part 5 Division 3
Division 3 Review by Information Commissioner
89   Right to have decision reviewed by Information Commissioner
(1)  A person aggrieved by a reviewable decision of an agency is entitled to have the decision reviewed by the Information Commissioner under this Division.
(2)  A reviewable decision must be the subject of an internal review by the agency under this Part before it can be reviewed by the Information Commissioner unless:
(a)  the aggrieved person is the access applicant, or
(b)  an internal review of the decision is not available to the aggrieved person under this Part.
(3)  The Information Commissioner may exercise any function of the Information Commissioner under the Government Information (Information Commissioner) Act 2009 for the purposes of or in connection with the review of a reviewable decision of an agency.
(4)  Conduct of an agency that constitutes a reviewable decision of the agency cannot be the subject of a complaint to the Information Commissioner under section 17 of the Government Information (Information Commissioner) Act 2009.
90   Time limit for applying for review by Information Commissioner
An application for the review of a decision by the Information Commissioner must be made within 40 working days after notice of the decision to which the review relates is given to the applicant.
91   Disclosure of public interest information
The Information Commissioner must not, in the exercise of functions in connection with a review under this Division, disclose any information for which there is (or for which an agency claims there is) an overriding public interest against disclosure.
92   Recommendations on review
(1)  On a review of a decision under this Division, the Information Commissioner may make such recommendations to the agency about the decision as the Information Commissioner thinks appropriate.
(2)  The recommendations specifically provided for by this Division do not limit the recommendations that the Information Commissioner can make.
93   Recommendation for reconsideration of matter by agency
(1)  The Information Commissioner may recommend that the agency reconsider the decision that is the subject of the Information Commissioner’s review and make a new decision as if the decision reviewed had not been made.
(2)  The agency may, pursuant to such a recommendation, reconsider the decision and make a new decision, whether or not the decision has already been the subject of internal review by the agency.
(3)  The agency’s reconsideration of a decision is to be by way of internal review of the decision (under Division 2) unless the decision has already been internally reviewed, in which case the agency is to reconsider the decision and make a new decision.
(4)  Unlike an internal review, the reconsideration of a decision that is not an internal review:
(a)  can be done by the person who made the original decision, and
(b)  can be the reconsideration of a decision made by the principal officer of the agency.
(5)  The reconsideration of a decision that is not an internal review cannot be done by a person who is less senior than the person who made the original decision.
(6)  No fee is payable for any reconsideration (including by way of an internal review) of a decision pursuant to a recommendation of the Information Commissioner.
94   Recommendation as to public interest against disclosure
(1)  The Information Commissioner may make a recommendation against a decision of an agency that there is an overriding public interest against disclosure of government information.
(2)  The Information Commissioner must consult with the Privacy Commissioner before making a recommendation under this section about a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14).
(3)  Despite section 91, the Information Commissioner may disclose information to the Privacy Commissioner in the course of consulting with the Privacy Commissioner under this section.
95   Recommendation as to general procedure of agency
The Information Commissioner may make a recommendation that any general procedure of an agency in relation to dealing with access applications be changed to conform to the requirements of this Act or to further the object of this Act.
96   Information Commissioner may refuse to review decision
The Information Commissioner may refuse to review or to deal further with a review of a decision of an agency if the Information Commissioner is satisfied that:
(a)  the application for review is frivolous, vexatious, misconceived or lacking in substance, or
(b)  the review would require an unreasonable and substantial diversion of the resources of the Information Commissioner, or
(c)  the applicant for review has failed without reasonable excuse to co-operate with the Information Commissioner in connection with the review, or
(d)  the applicant for review cannot by reasonable efforts be contacted by the Information Commissioner.
97   Onus on agency to justify decisions
(1)  In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.
(2)  If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.
(3)  If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.
98   No review of decisions administratively reviewed by NCAT
A decision is not to be the subject of review by the Information Commissioner under this Division if the decision is or has been the subject of an administrative review by NCAT.
99   Referral of agency decision to NCAT
The Information Commissioner may, with the consent of the applicant for review, refer a decision of an agency that is the subject of a review by the Information Commissioner under this Division to NCAT for an administrative review.