Administrative Law Exam Notes

ACCESS TO INFORMATION

STATEMENT OF REASONS

“Both CL and statutory mechanisms are available for accessing info with relation to a dec’n which has been made that affects a person. In this case, the jurisdiction of claim is [Cth/Qld] which will influence the Statutory mechanisms avail to the affected person.

CL right to reasons:

At CL, there is no general principle which states that reasons should be given for a stat’y dec’n: Osmond v Public Service Board of NSW. Other avail avenues are more applicable because stmt of reasons granted at CL must be in the public interest and if no ‘public element’ to the dec’n, there will not be enough to sustain a CL grant: Sankey v Whitlam.

Statutory avenues: content of dec’n

Statutory right to reasons: this is set out in section x which requires (written notice of the decision) – incl’ing a stmt of reasons and reference to the [AAT] as an avenue of appeal: s13 ADJRA/ s32 JRA.

In the absence of other leg’ve provisions, [s25D AIA Cth/ s27B AIA Qld] states that the content of a stmt of reasons should consist of findings on material questions of fact, and refer to the evidence or other material on which those findings were based. As there were insufficiencies, the applicant could ask for proper reasons to be provided which fully explain the findings of:

• [Material fact]

• [Refer to evidence/other materials in depth]

In Soldatow, reasons for a dec’n are necessary to determine whether or not a dec’n has been properly made.

As adequate reasons were not provided, the merits review system will provide for a stmt of reasons.

Statement of reasons:

Do exceptions apply?

• Cth – Schedule 1 – s3(1)(d) ADJRA

• Qld – Schedule 2 – s18 JRA

What is required of statement of reasons?

• Time limits – 28 days

• In writing to DM

• DM has 28 days from date of receiving request to provide reasons

• Is DM precluded from providing a Stmt of reasons under the empowering act?

• If so, applicant can go to FC or Fed Mag Court (ADJRA) or Qld Supreme Court (JRA) and AAT under AATA to get reasons or resolve why reasons not provided.

If can use s28 AAT obliged to use it over s13 ADJRA. Under s28 AAT Act, applicant affected by dec’n may obtain reasons for the dec’n. s25 states dec’ns covered by Act confer on AAT a review power and s28 states that DM must provide reasons if reasons are requested.

Based on these findings, the applicant should ask for reasons to be provided that set out the findings on material Qs of fact and refer to the evidence or other material on which those findings were based: s13(1) ADJRA.

FREEDOM OF INFORMATION

Note time limits. Be wary of language. Due to the ‘or’s’ involved, the applicant can be a ______ OR ‘the person concerned’. Note Allens v Transurban case where it wasn’t wide enough as they used ‘the person’ rather than ‘a person’ concerned.

Go through checklist.

What type of review: list the 3 and state which one. Highlight advantages and disadvantages eg. “This will be a specialist external review. [highlight adv and disadv’s] It can be captured by ex-agency staff, therefore, can get the same information back. It is an inquisitorial review, therefore, no lawyers which can be intimidating.”

What are the likely documents sought? “They’d be seeking a file or files containing notes about what had happened to cause the inquiry, what had been seen or heard during the investigation. It is important that they search for policy/guidelines stating what it is that happened eg. employees found with alcohol must be sacked. If not found in policy then it is an easier obstacle to overcome.”

Freedom of information is for access to info in poss’n of the govt by making avail to the public, info about the op’ns of depts and public authorities ie govt accountability and transparency.

• Process of application

  • Needs to be in writing

  • Agency must help ID docs

  • Agency can refuse if excessive or give request to more rel’t agency

  • Costs (appl’n fee + working time+ photocopying)

  • Costs reduced if after applicant’s personal info

  • Parts of docs (can black out exempt material)

  • 28 days turn around

  • Merits Review (Cth AAT, Qld Info Commissioner)

• Documents available

• Possible exemptions?

  • Type 1: Docs are not to be disclosed

  • Type 2: Docs in public interest NOT to be disclosed but public interest in content could allow disclosure

  • Type 3: Docs in public interest to be disclosed but public interest in content could prevent disclosure

  • Note: Re Howard test

    • Higher the office

    • Policy formation

    • Inhibit frankness and candour

    • Confuse public

    • Mislead as to reasons

Are there any issues about statements which may ‘affect personal privacy’ (s41)?

1. Does it set out information which is personal in that the person who made it may be identifiable?

2. Colakovski – accessing caller ID information of “nuisance” callers constituted personal information.

   1. Therefore if person is identifiable, not likely. Should ask that they de-identify the documents OR provide a summary as the information contained in the doc is central to understanding the reason for the decision: AI ACT s25D.

Are there any issues about policy documents as internal working documents? s36

1. Would argue that these are agency documents for making decisions under s9 and therefore should be accessible

2. If an extract has already been provided there is little reason why the rest of the document should also be provided.

3. There may also be scope to argue that the release of the documents is in the public interest (Re Howard).

If this is not effective can also approach ombudsman as another option.

Possible documents exempted - internal working docs s36(1) FOI; national security s33; cabinet docs s34;

**ANY PERSONAL INFORMATION docs – s41 – must argue IN the public interest as they are a type 2 exemption.

MERITS REVIEW

JURISDICTION

“We are dealing with a [Cth/Qld] Act, ie _______Act (Cth/Qld), therefore, jurisdiction is [Commonwealth/Queensland].”

OUTLINE SCHEME

• Statutory access to MR

• Powers of Review body

  • “Decisions can be reviewed 3 ways: internal review,...

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