Administrative Law

freedom of information

 

Freedom of Information ('FOI')

 

  • Information held by Government should be secret
  • Belief was that Governments needed secrecy to be effective
  • Freedom of laws ('FOI')  originally adopted from the United States, which were not introduce until 1980s or 1990s. It was enacted in Australia requiring direct disclosure of official information to citizens.  The purpose of the legislation:
  • increase the public scrutiny and accountability of government
  • increase the level of public participation in policy-making and the processes of government
  • provide individual with access to personal information held about them by government
  • Challenged in the 1960s-1970s be ideas that citizens in a democracy should know what government is up to. FOI legislation plays significant role in a democracy:
  • FOI allows for individuals to see their information is held on government files and have a right to correct that information if it is wrong or misleading.
  • FOI improves the transparency and accountability of policy making, administrative decision making and government service delivery.
  • A communities can participate in the nationals democratic processes
  • Information should be available to the public
  • Australia was the first nation with a Westminster style of government to enact FOI legislation.

 

Common Law and Secret Government

  • Public Service Board v Osmond (1986) 159  CLR 656
    • Osmond argued that in order for decisions to be ‘procedurally fair’,  government had to provide information.
    • HC found that the CL did not require decision makers to provide reasons when making decisions
  • Decisions like Osmond have meant that changes to the tradition of secret government have occurred through legislation.
  • In Australia, 2 legislative regimes allow access to information
    • Statutory right to reasons for a decision
    • Statutory right to government-held information
  • As based in legislation need to consider the Commonwealth legislation and the Queensland legislation separately.
  • Focusing on Commonwealth and Queensland regimes in this way is an important characteristic of Administrative Law because of the strong role played by legislation.

 


Provide For Reasons

 

Why make DM(decision maker) provide reasons?

  • Individuals need to be provided with reasons for the decision. Section 28 of the AAT Act provides for access to full reasons for those decision which could be reviewed under the AAT Act.
  • In turn this information can be used to applicant to challenge the decision

 

However:

  • Costs to decision making
    • Part I of the Schedule specifies charges related to making a decision on request (currently $15 per hour for time spend searching for or retrieving a document) and Part II specifies charges for giving access to a document.
  • Possibly encourages hopeless appeals
  • Cynics suggest Decision Makers write reasons to hide what was really the basis for the decision.

 

3 statute laws provide for reasons:

  1. Empowering statute says must provide reasons -> if fails then go to step 2
  2. General merits scheme includes a duty to give reasons -> fails then step 3
  3. General duty in the Judicial Review Acts - ADJRA (Cth), JRA (Qld)

 

 

Empowering statute obliges DM to provide reasons:

What is meant by ‘reasons’

  • Commonwealth – 25D Interpretation Act 1901 (Cth):

The Act Interpretation Act 1901 (Cth) s25D provides that where a body is required to give reasons, "whether the expression 'reasons', 'grounds' or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

  • Queensland – 27B Acts Interpretation Act 1954 (Qld)

 

Merits scheme provides for reasons

S28 of Administrative Appeals Tribunal Act 1975

  •  s 25 indicates that primary Acts may confer on the AAT review power
  •  s 28 specifies that if the AAT has review power then DM may provide reasons
  •  Note that if can use s28 of AAT then obliged to use it over s13 ADJRA (see s13(11) ADJRA)

See similar provision in Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 157-160.

 

 

Statutory duty to provide reasons

  • s13 Administrative Decisions Judicial Review Act 1977 ('ADJRA') – Commonwealth
  • s32 Judicial Review Act 1991 (' JRA') – Queensland

In 1991, Queensland passed a Judicial Review Act. It heavily based on the ADJR Act, yet slightly more ambitious. It made decisions by the Governor reviewable and it also provided a statutory scheme to regulate applications for orders equivalent to the traditional judicial review remedies.

 

JUDICIAL REVIEW ACT 1991 - SECT 32

32 Request for statement of reasons

(1) If a person makes a decision to which this part applies, a person who is entitled to make an application to the court under section 20 in relation to the decision may request the person to provide a written statement in relation to the decision.

(2) The request must be made by written notice given to—

(a) if the decision was made by the Governor in Council or by Cabinet—the Minister responsible for the administration of the enactment, or the scheme or program, under which the decision was made; or

(b) in any other case—the person who made the decision.

 

 

2 Elements

  1. ‘Decision of an administrative character under an enactment’ + applicant has standing
  2. Not excluded by Schedule 2

 

‘Decision of an administrative character under an enactment’ + has Standing (ss3,5 ADJRA, ss4, 20 JRA)

  • Decision of administrative character under enactment’: This is what is required to access statutory judicial review.
  • This is going to be satisfied whenever we have a decision that is clearly provided for in an Act of Parliament.
  • ‘+ has standing’ see Lecture 6.  Generally the applicant must have  a special interest in an application.

 


Adequacy of reasons

 

Administrative Decisions Judicial Review Act 1977 ('ADJRA')

Judicial Review Act ('JRA')

Administrative Appeals Tribunal Act 1975 ('AATA')

Queensland Civil and Administrative Tribunal ('QCAT')

 

  • Time limits:
    • Applicant has 28 days (14 days QCAT) from when applicant was given notice of decision.
  • In writing to Decision Maker
  • Decision Maker is obliged to give reason within a specified period, in general, 28 days
  • Under the Judicial Review Acts, decision makers who think that the person making the request was not entitled to a statement of reasons may notify the person, who may then apply to the court for an order that reasons be given. Alternatively, the decision maker may apply to the court for an order declaring that the person was not entitled to make the request.
  • Fed Court or Fed Circuit Court (ADJRA), Qld Supreme (JRA), AAT (AATA), QCAT (QCATA) have supervisory jurisdiction.
  • A Statement of Reasons must contain 3 elements:
    1. Setting out of material facts (findings) - most significant part of reasoning
    2. Setting out of the evidence relied on
    3. Provision of the actual reasons for the decision.

 

Soldatow v Australia Council (1991) 22 ALD 750

  • Mr Soldatow submitted the application for a statement of reasons why the Australia Council had rejected his application for a Writers Fellowship.
  • He had been provided with two statements of reasons but both lacked any real specificity.
  • Justice Davies of the Federal Court said:

"Considering the obligation under section 13 of the AD(JR) Act, it requires proper and adequate reasons which are intelligible, which deal with the substantial issues raised for determination and which expose the reasoning process adopted. The reasons need not be lengthy unless the subject matter requires but they should be sufficient to enable it to be determined whether the decision was made for a proper purpose, whether the decision involved an error of law, whether the decision-maker acted only on relevant considerations and whether the decision-makers left any such consideration out of account ...'

 

'The making of an order under section 13(7) is discretionary. Therefore, before malung such an order, the Court should be satisfied that, notwithstanding that the reasons given may not satisfy all aspects of section 13(1), nevertheless, the ordering of a fuller and better statement would be a useful step furthering the interests of justice.'

 

  • Failure to provide adequate reasons constitutes an error of law.
  • MIMA v Yusuf: Gleeson CJ
    • Somalia women illegally in Australia claims refugee status.
    • Claims village attacked.
    • Refugee Review Tribunal (RRT) makes no mention of this in its ‘statement of reasons’
    • RRT under s430(1)(c) Migration Act 1958 (Cth) had to set out facts, findings and decision
  • HELD: interrelated – the findings are drawn from the facts that the tribunal made its decision on.

 

Key Characteristics

  • Access to ‘documents’
  • Acts Interpretation Acts 1901 (Cth) s2B and Acts Interpretation  Acts 1954 (Qld) s36 Schedule 1 – expansive definition covers data
  • Rights of access: s11 (Cth); s23 (Qld)
  • Access extends beyond ‘files’ to policy and guidelines

 


Freedom of Information Exemptions

 

Commonwealth Act has 2 types of exemptions: Except under Div 2  and Div 3of Part IV.

  1. Except under Div 2 of Part IV:
  • Documents should not be disclosed :
    • relating national security (s 33)
    • cabinet documents (s 34)
    • which affecting enforcement of law and protection of public safety (s 37)
    • secrecy provisions of enactments (s 38)
    • legal professional privilege (s 42)
    • containing material obtained in confidence (s 45)
    • contempt of Parliament or contempt of court (s 46)
    • disclosing trade secrets of commercially valuable information (s 47)
    • electoral rolls and related document (s 47A)

 

Those 9 categories of exemptions are not subject to override public interest test. Also, there are 3 exceptions to the general Cabinet exemption rule:

  • a document is not merely exempted as it is attached to a Cabinet submission, record or briefing (s 34(4))
  • the document by which a Cabinet decision is officially published is not itself exempt (s 34(5))
  • purely factual material in a Cabinet submission, record or briefing is not exempt unless it is disclosure would reveal a Cabinet deliberation or decision and the decision has not been officially disclosed (s 34(6))

 

Cabinet notebooks which are likely to be more revealing of government deliberations, are expressly excluded from the operation of the FOI Act (s4(1): document)

 

  1. Except under Div 3
  • Documents which are conditionally exempt under Div 3
    • Commonwealth-State relations (s47B);
    • Deliberative process (s 47C);
    • Financial or property interests of the Commonwealth (s 47D);
    • Certain operations of agencies (s 47E);
    • Personal privacy (s 47F);
    • Business (other than documents to which s47 applies) (s 47G);
    • Research (s 47H);
    • The economy (s 47J)
  • Access to conditionally exempt documents cannot be refused simply because the document falls within one of these categories.
  • Instead, documents are subject to a public interest test:

 

What is 'public interest'?

The 1979 Senate Committee on the FOI bill described the concept of 'public interest' in the FOI is:

"a convenient and useful concept for aggregating any number of interests that may bear upon a disputed question that is of general - as opposed to merely private - concern."[1]

"the concept of public interest has also been describe as something that is of serious concern or benefit to the public, not merely of individual interest."[2]

ss 11A(5) + 11B

Section 11A(5) states: " The agency or minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would , on balance, be contrary to the public interest."

 

Public Interest Test (Cth)

s11B(3): Factors favouring access to the document in the public interest:

  • promote the objects of FOI Act;
  • inform debate on a matter of public importance;
  • promote effective oversight of public expenditure;
  • allow a person to access own personal information.

 

s11B(4): Irrelevant factors

  • access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
  • access to the document could result in any person misinterpreting or misunderstanding the document;
  • the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
  • access to the document could result in confusion or unnecessary debate.

 

Queensland Act: Core exemption

  • Based on a public interest test: s48 + Sch 3 for a list of information Parliament has considered disclosure to be contrary to the public interest.
    • Cabinet information
    • Executive Council information
    • Information briefing incoming Minister
    • Information revealing particular Sovereign communications
    • Information disclosure of which would be contempt of court or Parliament
    • Information subject to legal professional privilege
    • National or State security information

 

  • Sect 49 + Sch 4 for factors relevant to ascertaining the public interest
    • Factors irrelevant to deciding the public interest
    • Factors favouring disclosure in the public interest
    • Factors favouring nondisclosure in the public interest
    • Factors favouring nondisclosure in the public interest because of public interest harm in disclosure
  • S50: Contrary to child’s best interests
  • S51: Contrary to applicant’s best interests – healthcare information
  • S52: Document non-existent or un-locatable
  • S53: The applicant can reasonably access the document under another Act, or under arrangements made by an agency.

 

 

National Security  Documents  | Cth s33; Qld s48 + Sch 3: s9

Reasons for the exemption

  • s33(1)(a) exempt if would or could reasonably be expected to damage the security of Commonwealth or State:

(i) security

(ii) defence

(iii) international relations

  • Type 1 exemption under Cth Act

 

 

Criticisms of the exemption

Cabinet Documents  | Cth s34 Cth; Qld s48 + Sch 3: ss1 +2

  • Reasons for the exemption
    • s34(1)(a) ‘docs submitted to Cabinet… bought into existence to submit to cabinet’
    • Re Porter v Department of Community Services and Health (1988) 14 ALD 403
      • any document prepared and submitted
      • but not any document prepared, but not submitted
    • Type 1 exemption under Commonwealth Act
    • Only applies to documents for 10 years in Qld (Sch 3, s2)
    • NB: Complaints of abuse of Cabinet exemption

 

Deliberative Processes (Internal Working) Documents
(Cth s47C Cth; Qld  s49 + Sch 4)

  • Reasons for the exemption
  • Opinion, advice, recommendations, consultations or deliberations
  • Re Waterford and Dept of Treasury (No.2) (1984) 5 ALD 588: ‘thinking process’ – processes of reflection, rather than purely procedural or administrative functions of an agency
  • Type 2 exemption under Cth Act: normally released, but up to the agency to establish not in the public interest to release.
  • Public interest test argument

 

 

Personal information
(Cth 47F; Qld  s49 + Sch 4: Part 3 Qld)

  • Reasons for the exemption (NB: concerns personal information of a person other than the applicant)
  • Information about a (natural) person whose identity is apparent or reasonably ascertained
  • Type 2 exemption under Cth Act: Colakovski v Telecom (1991) 100 ALR 111 - unreasonable to disclose identity of nuisance callers.
  • Applicant must establish that disclosure is in the public interest
  • Often will be considered unreasonable unless obtain a release from the person (eg partner, relative etc)
  • Reports by qualified persons may be restricted to other such qualified persons if disclosure of information to applicant might be detrimental to applicant’s physical or mental health, or well‑being - (s47F(4) + (5) (Cth); s51 (Qld))

[1] Senate Standing Committee on Constitutional and Legal Affairs, Report on the Cth Freedom of Information Bill 1978,1979, paragraph 5.25.

[2] British Steel Corporation v Granada Television Ltd (1980) 3 WLR 780.


* Content was written based on lecture notes and a textbook. I received a 7 in this Administrative law course.

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