2. Accessing Government Information Flashcards
Recall
Administrative Decisions (Judicial Review) Act 1977
s3
Interpretation
REcall
Administrative Decisions (Judicial Review) Act 1977
s5
How to apply for judicial review of decisions
Recall
Administrative Decisions (Judicial Review) Act 1977
s13
Request for a statement of reasons for decision
Recall
Administrative Decisions (Judicial Review) Act 1977
Sch 2
Decisions which section 13 does not apply
Judicial Review Act 1991 (Qld)
s4
Meaning of decision
(a) administrative character made, proposed to be made, required to be made, under an enactment
(b) administrative character made, proposed, by or by an officer or employee of State/local authority involving funds provided/obtained by Parliament/from tax
Judicial Review Act 1991 (Qld)
s5
Meaning of making of a decision and failure to make a decision
Making, suspending, revoking or refusing, issuing, imposing, retaining…
Failure to make a decision is to be construed accordingly
Judicial Review Act 1991 (Qld)
s6
Making of report or recommendation is making of a decision
Judicial Review Act 1991 (Qld) s31
Meaning of decision to which this part applies
(a) must be a decision
(b) A decision included in Sch 2
Part 4: Reasons for decision
Judicial Review Act 1991 (Qld) s32
If decision in dispute applies (s31), and person is entitled to make application to court (s20), they may request the person to provide a written statement about the decision.
Judicial Review Act 1991 (Qld) s33
Decision maker must comply with request to provide written statement (28 days) except in certain circumstances
Judicial Review Act 1991 (Qld) s34
Statement of decision must contain the reasons for the decision
Judicial Review Act 1991 (Qld) Sch 2
Decisions for which reasons need not be given
* Criminal justice
* Civil proceedings
* Corruption
* CCC
* Weapons Act (some)
* Prostitution Act (some)
* Recovery proeedings
* Personnel management
* Appointment decisions
* Police Service
* Industrial matters
* Local government budgets, rates
* Tendering and awarding of contracts
* Competitive commercial activities of certain State authorities
* Assessments and calculation of tax
* Collection of tax
Administrative Appeals Tribunal Act 1975 (Cth) s 28
Person affected by decision may obtain reasons for decision via application to the Tribunal for a review
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 157-160
s157: Information notice to be given to anyone who may apply to the tribunal for a review of the decision
s158: How to obtain written statement of reasons
s159: Tribunal order requiring statement of reasons to be given if Tribunal is satisfied the person is entitled to receive the reasons
s160: If statement doesn’t contain adequate particulars, tribunal may make order requiring the decision-maker to give better statement
Acts Interpretation Act 1901 (Cth) ss 2B, 25D
s2B: Definitions
s25D: Even if names and constitutions are altered, body or office unaffected/former name construed
Acts Interpretation Act 1954 (Qld) ss 27B, 36, Schedule 1
s27B: Statement of reasons for decision must set out findings on material questions of fact and refer to the evidence or other material on which those findings were based
Sch 1: Definitions/meaning of commonly used words
s36: Words in sch1 have the meaning stated in that sch
Soldatow v Australia Council (1991) 103 ALR 723
P was a writer for fellowship, but unsccessful
Important case which highlighted how important reasons can be in informing a person affected by a decision where the decision-maker is in error, and assisting the development of arguments to challenge the decision
Recall
Public Service Board v Osmond (1986) 159 CLR 656
CL does not require decision makers to provide reasons when making decisions. Led to legislative reform.
Why make decision maker provide reasons for decisions?
- Explain decision and informs important criteria in reaching their conclusions
- Allows applicants to challenge the decisions
- Help improve the standards of administrative decision-making by public bodies
Cons:
* Costs to decision making
* Possibly encourage hopeless baseless appeals
* May be used by DMs as an opportunity to create reasons to obscure what was really the basis of their decision
3 ways that statute law provides for reasons
- Empowering statute
- General merits scheme
- Judicial Review Acts ADJRA (Cth); JRA (Qld)
Method 1 of accessing reasons
Empowering statute
The statute must oblige DM to provide reasons for decision.
Meaning of ‘reasons’ is drawn from AIA (Cth and Qld).
* Findings of fact
* Evidence relied upon
* Reasoning behind decision
Method 2 of accessing reasons
Merits scheme
Cth setting:
Empowering/Primary Acts must confer (grant) power of review on the AAT - AAT Act 1975
If AAT has review power, then DM may provide reasons - s28 AAT Act
If s28 AAT is applicable for obtaining reasons, don’t seek reasons through s13 ADJRA
Qld setting:
Same but through ss157-160 QCAT Act
Method 3 of obtaining reasons
Judicial Review statutes
What statutes + two elements
Cth: s13 ADJRA
Qld: s32 JRA
Two elements must be satisfied:
(a) Decision of an admin character under an enactment and the applicant has ‘standing’ (having special interest) - ss3-5 ADJRA / ss4, 20 JRA
(b) The decision is not excluded by Sch2 of relevant judicial review Act
Time limits for applicant obtaining reasons
28 days (QCAT 14 days) from when applicant was given notice of decision
DM has 28 days to provide reasons
3 elements of a statement of reasons
Soldatow v Australia Council
- Findings on material questions of fact
- Evidence relied upon
- Reasoning
Purpose of FOI Act (Cth)
s3: to give community access to info held by Gov of Cth by -
(a) requiring agencies to publish the information and
(b) providing for a right of access to documents
s3(2): This is to promote Australia’s representative democracy
s3(4): done so promptly and at lowest reasonable cost
Purpose of RTI Act (Qld)
s3: to give a right of access to info in the Gov’s possession or under the Gov’s control **unless, on balance, it is contrary to the public interest **to give the access
Rights of access provisions for Cth and Qld
s11 (Cth) - to documents
s23 (Qld) - to documents
However, AIA 1901 (Cth) s2B & AIA 1954 (Qld) s36 Sch 1 **allows expansive definition of ‘documents’ **to mean beyond ‘files’ and can include data, policies and guidelines
Can parts of documents be exempt?
Yes - parts can be blacked out if exempt or irrelevant
FOI Act s22
RTI Act ss73-74
Exemptions in FOI Act (Cth)
2 types
- Documents that are not to be disclosed (national security, cabinet)
- Documents which are conditionally exempt, subject to determination whether disclosure would be contrary to the public interest ( Cth & State relations; deliberative (draft) processes)
Conditionally exempt documents can be obtained under public interest test - s11A(5) (Qld) + s11B (Cth)
Public interest test (Cth)
s11B(3): factors that favour access to document in public interest
* Promote 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
* Embarrassment to Cth Gov
* Result of misinterpretation or misunderstanding by applicant
* Author of document was of high seniority in the agency
* Result of confusion or unnecessary debate
Dreyfus and Attorney General [2015] AATA 995
Case which held that disclosure of documents successful if there is strong public interest in disclosure. There was a significant cut in the community legal centres before the federal budget release. In response to AG’s statement that he had consulted affected community legal centres, the opposition made request for Cth AG’s diary entries to challenge the statement.
AG claimed s24 disclosure is too onerous. Was shot down.
Exemptions in RTI Act (Qld)
- Public interest test - s48 + Sch 3
* Cabinet
* Executive Council
* Information briefing incoming Minister
* Information revealing particular Sovereign communications
* Info of court or Parliament
* Info subject to legal professional privilege
* National/State security information
Public interest test (Qld)
Relevant factors?
s49 + Sch 4
Exemption
National security documents
s33 Cth:
If info would/could reasonably be expected to damage security (Type 1 category of exemption)
s48 + Sch3 Qld
Controversial exemption - too widely drawn
Exemption
Cabinet documents
Reasons for exemption are so that the Cabinet can discuss without interference - s34 Cth
Re Porter v Department of Community Services and Health (1988) 14 ALD 403
* Exemption can apply to any doc prepared and submitted to Cabinet and
* Docs prepared for the purpose of submission to Cabinet even if not submitted
* Can’t get docs that simply relate to matter on Cabinet’s agenda
Exemption only applies to documents for 10 years in Qld (Sch3, s2)
Controversial exemption - complaints of abuse of Cabinet exemption
Exemption
Deliberative processes (internal working) documents
Reasons for exemption may be opinion, advice, recommendations, consultations or deliberations that were not implemented in the end.
Re Waterford and Dept of Treasury (No 2) (1984) 5 ALD 588
* Processes of reflection, rather than purely procedural or adm. functions of an agency cannot be released
Type 2 exemption under Cth Act - but must succeed public interest test if agency wishes to not release
s47C Cth
s49 Sch4 Qld
Exemption
Personal information
of person other than applicant
Reasons for the exemption include if natural person’s identity is apparent or can be reasonably ascertained
Colakovski v Telecom (1991) 100 ALR 111 - held unreasonable to disclose identity of nuisance caller(s).
To exercise exemption, agency must establish disclosure is not in the public interest. If consent for release of information from the person is signed, then release of info is reasonable.
Mental health
If release of info to the applicant may be detrimental to applicant’s physical or mental health or wellbeing, then disclosure of info may be restricted to other similarly qualified people only - s47F(4)+(5) Cth; s51 Qld
s47F Cth
s49 Sch 4 Qld
