LAWS2201 Lecture Notes - Lecture 1: Administrative Appeals Tribunal, Greg Weeks, Canadian English
Freedom of Information Legislation
Kerr Committee
• Kerr Committee knew that reasons for administrative decision-making were fundamental to the effectiveness of the
balance of the reforms. Enacted as s 13 ADJR and a 28 AAT Act. Generally a twofold justification:
i. information to enable the applicant to decide whether to appeal and the grounds for any such appeal; and
ii. beneficial process for decision-makers which encourages care and rigour, and helps identify principles for future
decision-making.
Reasons as an incident of the judicial function are all but essential (McHugh JA in Soulemezis).
Common law duty to reasons
• Generally, no common law duty to reasons: PSB v Osmond. Three main strands of argument in relation to a common
law duty to give reasons:
i. Better and more rational decision-making (but NB arguments to the contrary, especially that this may lead to a
standardisation of reasoning or that it will needlessly increase the cost and time of decision-making);
ii. To increase government transparency and accountability and give legitimacy (but subject to countervailing
political interests); and
iii. To enable persons decided against to assess the decision, understand why they have not succeeded, decide if
there are grounds for appeal or review and assess the strength of the opposing case.
NB - these considerations do not go to ‘procedural fairness’ as that term is usually understood because they
refer to acts subsequent to the decision being made.
The Closure of the OAIC
Greg Weeks, Editorial, the Closure of the Office of the Australian Information Commission
The advent of the OAIC was particularly welcome to those who had become discouraged with the operation of the
FOI Act over the course of its existence and signalled a policy preference in favour of government agencies initiating
the publication of information, even if it had not been requested under the FOI Act.
It was disbanded in 1 Jan 2015, because the Government stopped funding it.
we doubt that the AAT will be able to match the OAIC’s record with regard to dealing efficiently with requests for
merits review from decisions made under the FOI Act. There are already significant delays in obtaining hearings in the
AAT and, with many AAT members unsure at the time of writing whether or when they will have their contracts
renewed, it is hard to see this situation improving in the short term. We may be returning to an era in which obtaining
information from government is beset with great practical difficulties.
The productivity of the OAIC in these areas will need to be matched from 1 January 2015 by a range of agencies.
While the Privacy Commissioner will continue to administer the Privacy Act from Sydney in 2015, the administration
of the FOI Act will be absorbed into the Attorney-General’s Department and the OAIC’s merits review and complaints
functions with respect to the FOI Act will again be performed by the Administrative Appeals Tribunal (AAT) and
Commonwealth Ombudsman respectively, as they were prior to 2010.
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FOI after the demise of the OAIC
• Fundamentals remain – right to ask, no standing, limited exemptions
• Decisions appellable to AAT, onus on govt party to justify denials
• Nothing much about information policy (which OAIC had used to promote active release of information that is not
secret)
• Who will perform the tasks of the OAIC? They remain in statute.
FOI Fundamentals
• Anyone can request access to any document in the possession of a govt agency or minister
• A refusal is reviewable by an independent body and the onus rests on the agency/Minister
Tensions
• Increased FOI administrative resource burden
• FOI requests that cause inconvenience without apparent public interest benefit
• Concern that FOI requests inhibit constructive policy development and ministerial briefing
• Disquiet with media misreporting or exaggeration of information acquired through FOI
• Heightened concern that transparency imperils personal privacy
Important Sections of the FOI Act
Section 11
Legal right of access to documents subject to the restrictions in the Act. See exemptions in ss 11A and 11B.
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person's right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency's or Minister's belief as to what are his or her reasons for seeking access.
Section 11 A
…..
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the document at a particular
time if, at that time, the document is an exempt document.
Note: Access may be given to an exempt document apart from under this Act, whether or not in response to
a request (see section 3A (objects--information or documents otherwise accessible)).
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(5) 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.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be
contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6) Despite subsection (5), the agency or Minister is not required to give access to the document at a particular
time if, at that time, the document is both:
(a) a conditionally exempt document; and
(b) an exempt document:
(i) under Division 2 of Part IV (exemptions); or
(ii) within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
Section 11B
….
3) Factors favouring access to the document in the public interest include whether access to the document would do
any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document would,
on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a
loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) 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;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
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Document Summary
Kerr committee: kerr committee knew that reasons for administrative decision-making were fundamental to the effectiveness of the balance of the reforms. Enacted as s 13 adjr and a 28 aat act. Generally a twofold justification: information to enable the applicant to decide whether to appeal and the grounds for any such appeal; and beneficial process for decision-makers which encourages care and rigour, and helps identify principles for future decision-making. Reasons as an incident of the judicial function are all but essential (mchugh ja in soulemezis). Common law duty to reasons: generally, no common law duty to reasons: psb v osmond. Three main strands of argument in relation to a common law duty to give reasons: Better and more rational decision-making (but nb arguments to the contrary, especially that this may lead to a standardisation of reasoning or that it will needlessly increase the cost and time of decision-making);
