2. Accessing Government Information

Question 1

Recall

Administrative Decisions (Judicial Review) Act 1977

s3

Answer 1

Interpretation

Question 2

REcall

Administrative Decisions (Judicial Review) Act 1977

s5

Answer 2

How to apply for judicial review of decisions

Question 3

Recall

Administrative Decisions (Judicial Review) Act 1977

s13

Answer 3

Request for a statement of reasons for decision

Question 4

Recall

Administrative Decisions (Judicial Review) Act 1977

Sch 2

Answer 4

Decisions which section 13 does not apply

Question 5

Judicial Review Act 1991 (Qld)
s4

Answer 5

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

Question 6

Judicial Review Act 1991 (Qld)
s5

Answer 6

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

Question 7

Judicial Review Act 1991 (Qld)
s6

Answer 7

Making of report or recommendation is making of a decision

Question 8

Judicial Review Act 1991 (Qld) s31

Answer 8

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

Question 9

Judicial Review Act 1991 (Qld) s32

Answer 9

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.

Question 10

Judicial Review Act 1991 (Qld) s33

Answer 10

Decision maker must comply with request to provide written statement (28 days) except in certain circumstances

Question 11

Judicial Review Act 1991 (Qld) s34

Answer 11

Statement of decision must contain the reasons for the decision

Question 12

Judicial Review Act 1991 (Qld) Sch 2

Answer 12

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

Question 13

Administrative Appeals Tribunal Act 1975 (Cth) s 28

Answer 13

Person affected by decision may obtain reasons for decision via application to the Tribunal for a review

Question 14

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 157-160

Answer 14

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

Question 15

Acts Interpretation Act 1901 (Cth) ss 2B, 25D

Answer 15

s2B: Definitions
s25D: Even if names and constitutions are altered, body or office unaffected/former name construed

Question 16

Acts Interpretation Act 1954 (Qld) ss 27B, 36, Schedule 1

Answer 16

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

Question 17

Soldatow v Australia Council (1991) 103 ALR 723

P was a writer for fellowship, but unsccessful

Answer 17

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

Question 18

Recall

Public Service Board v Osmond (1986) 159 CLR 656

Answer 18

CL does not require decision makers to provide reasons when making decisions. Led to legislative reform.

Question 19

Why make decision maker provide reasons for decisions?

Answer 19

• 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

Question 20

3 ways that statute law provides for reasons

Answer 20

1. Empowering statute
2. General merits scheme
3. Judicial Review Acts ADJRA (Cth); JRA (Qld)

Question 21

Method 1 of accessing reasons

Empowering statute

Answer 21

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

Question 22

Method 2 of accessing reasons

Merits scheme

Answer 22

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

Question 23

Method 3 of obtaining reasons

Judicial Review statutes

What statutes + two elements

Answer 23

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

Question 24

Time limits for applicant obtaining reasons

Answer 24

28 days (QCAT 14 days) from when applicant was given notice of decision

DM has 28 days to provide reasons

Question 25

3 elements of a statement of reasons | Soldatow v Australia Council

Answer 25

1. Findings on material questions of fact 2. Evidence relied upon 3. Reasoning

Question 26

Purpose of FOI Act (Cth)

Answer 26

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

Question 27

Purpose of RTI Act (Qld)

Answer 27

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

Question 28

Rights of access provisions for Cth and Qld

Answer 28

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

Question 29

Can parts of documents be exempt?

Answer 29

Yes - parts can be blacked out if exempt or irrelevant FOI Act s22 RTI Act ss73-74

Question 30

Exemptions in FOI Act (Cth) | 2 types

Answer 30

1. Documents that are not to be disclosed (national security, cabinet) 2. 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)

Question 31

Public interest test (Cth)

Answer 31

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

Question 32

Dreyfus and Attorney General [2015] AATA 995

Answer 32

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.

Question 33

Exemptions in RTI Act (Qld)

Answer 33

1. 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

Question 34

Public interest test (Qld) | Relevant factors?

Answer 34

s49 + Sch 4

Question 35

# Exemption National security documents

Answer 35

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

Question 36

# Exemption Cabinet documents

Answer 36

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

Question 37

# Exemption Deliberative processes (internal working) documents

Answer 37

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

Question 38

# Exemption Personal information | of person other than applicant

Answer 38

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