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Where a certificate under section 23(2) or 24(3) has been served, either the Commissioner, or any applicant whose request for information is affected by the issue of the certificate, may appeal to the Tribunal against the certificate. In cases where a certificate is served, this is the second stage of the appeal process.
Thus, where a Ministerial certificate under sections 23 or 24 has been served, any appeal against it is made to the Tribunal under section 60, and not to the Commissioner. The Tribunal will consist of a panel specially constituted to consider such appeals.
Once the Tribunal has made a determination under section 60, there is no appeal. The Tribunal's determination would, however, be susceptible to judicial review.
Where the appeal is against a certificate served under section 23, the Tribunal will consider whether the certificate is accurate or not (i.e. whether the information was in fact directly or indirectly supplied by one of the Security Bodies or whether it relates to one of the Security Bodies). If it finds the certificate to be inaccurate, the Tribunal may allow the appeal and quash the certificate.
Where a Minister issues a certificate under section 24, it may be challenged on two separate grounds by means of an appeal to the Tribunal.
First, the issue may be whether the certificate is correct, i.e. whether the Minister had reasonable grounds for claiming that the information does require exemption on national security grounds. In that case, the Tribunal's powers under section 60 are limited. The Tribunal can only review the certificate using judicial review principles.
Second, the appellant may claim that the information requested falls outside the scope of a certificate (which identifies a general category of information as subject to the exemption). In that case, the Tribunal can decide the issue one way or the other without being constrained by judicial review principles.
In either case, in relation to a general and prospective certificate, if the Tribunal gives an unfavourable decision and decides to quash the certificate, there is nothing to stop the department from making a fresh certificate specifically relating to the particular information for which it is claiming an exemption. Where a certificate is specific to the request for information it will be much harder for the department to make a fresh certificate since the one that has been quashed should already have been tailored to the specific information which the department was trying to protect, leaving little room for further refinement.
There is no power for the Tribunal to review the decision reached by the department on the balance of the public interest in disclosure to the extent that it is distinct from the determination of whether an exemption is required for the purposes of safeguarding national security on a challenge to a certificate. Any challenge to this will therefore need to be made by the claimant by way of separate application to the Commissioner.
Where an application is made to challenge the assessment of the public interest in disclosure the two appeals (to the specially constituted Tribunal, and to the Commissioner), could run in parallel. However, the issues may be disposed of by the Tribunal if the certificate is quashed. In practice, it is therefore likely that the application to the Commissioner would be adjourned pending the outcome of the appeal to the Tribunal.
If the application to the Commissioner does proceed, the Commissioner may serve an Information Notice on the department under section 51 to obtain access to the information which would be needed by him to judge if the public interest in disclosure had been properly assessed.
Where the Commissioner issues a Decision Notice (section 50) or Enforcement Notice (Section 52), both of these have effect subject to Section 53. Section 53 provides an exception to the duty to comply with a Decision Notice or an Enforcement Notice. It allows for a Minister to sign a certificate stating that he/she has on reasonable grounds formed the opinion that there has been no failure on the part of the public authority to comply with the relevant Notice. However a section 53 certificate can only be used where the relevant Notice relates to information which is exempt from the section 1 duties (the duty to confirm whether or not the information is held and the duty to communicate it). The certificate must also be laid before both Houses of Parliament and in any event it is amenable to judicial review.
Alternatively, the department could appeal to the normally constituted Tribunal against either form of notice under section 57. At this stage this Tribunal would be able to consider the assessment of the public interest as part of its determination if relevant.