Admin law Unit 2 Lecture PDF

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Administrative Law Lecture 2: Access to Info Case Summary Soldatow v Australia Council Reasons for decisions • Two types of legislative regimes which provide for access to government information. • Statutory rights to reasons for a decision • Statutory rights to government-held information • In this video, I will focus on two cases which are important for your understanding of the principles surrounding access to reasons for decisions. • Traditionally, there has been a presumption that information held by the government should remain secret. • Accordingly there is no common law right to reasons for administrative decisions. • This presumption was based on the belief that governments required secrecy in order to operate effectively. • This was challenged during the 1960s and 1970s with the increasing popularity of the notion that citizens in a democracy should be informed about how and why governments make their decisions. • As a consequence, reform of the tradition of secret government has been pursued through legislation. Soldatow v Australia Council (1991) 103 ALR 723; 22 ALD 750 • Soldatow applied to the Australia Council for a writer’s fellowship, but was unsuccessful. • He obtained statements of reasons from the Australia Council for its decision not to award the fellowship. • Soldatow argued that these statements did not comply with the requirements of s13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – which states that statement of reasons must:  Set out of findings of material facts;  Refer to the evidence relied on; and  Provide the actual reasons for the decision. • Soldatow sought an order under s13(7) that a statement complying with s13(1) be supplied to him. • Davies J stated that the two statements already provided to Soldatow did not adequately explain the Committee's assessment of the value of the writer's work. • Soldatow was entitled to know the substance of the reasons that his particular application was not successful. • Accordingly, Davies J ordered that the Australia Council supply a statement of reasons to Soldatow that complied with the requirements of s13.  ‘Section 13(1) of the Administrative Decisions (Judicial Review) Act 1977 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 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-maker left any such consideration out of account.’ [724] Lecture 2

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We can see in the reasoning by Davies J in this passage how important reasons can be in informing a person affected by a decision where the decision-maker is in error, and in assisting in the development of arguments to challenge the decision. In Lecture 2, we will discuss the importance of accessing reasons for decisions in challenging administrative decision-making and consider a number of other important cases in this area. We will also move on to consider the second statutory means of accessing government-held information - Freedom of Information legislation.

Administrative Law Access to Information Lecture 2.1 The common law and government secrecy Common law and secret government • There has always been a common law presumption that information held by government should remain secret. • One of the justifications for this position was the belief that governments require secrecy in order to operate effectively. • This was challenged during the 1960s and 1970s with the increasing popularity of the notion that citizens in a democracy should be informed about how and why governments make their decisions. • Public Service Board v Osmond (1986) 159 CLR 656 • Osmond was the District Surveyor in Armidale and had worked as a long-term public servant in NSW. • In 1982 he went for the job of chairman of the Local Lands Board, which required a recommendation from the relevant Head of Dept. • He was not recommended for the job and appealed to the Public Service Board – who rejected his appeal without any written notification of their decision. • Osmond argued he was entitled to receive reasons for their decision in order for the decision to be ‘procedurally fair’ [see Lecture 7]. • HC HELD: The CL does not require decision makers to provide reasons when making decisions. • This focus on the specifics of the Cth and Qld access to information regimes demonstrates two important characteristics of administrative law in Australia: • The central role played by legislation in structuring an applicant’s access to relevant information and their rights to review decisions. • The need to be clear which jurisdiction the decision being questioned falls under: Cth or Qld? Administrative Law Access to Information Lecture 2.2 Statutory reasons for decisions Access to reasons for decisions Why make decision maker provide reasons? • It explains the decision and informs the applicant of what the DM considered important in reaching their conclusion(s). • In turn this information can be used by applicants to challenge the decision

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By forcing the DM to justify their decision it can help to improve the standards of administrative decision-making by public bodies.

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It can add costs to decision making Possibly encourages hopeless appeals May be used by DMs as an opportunity to create reasons to obscure what was really the basis for their decision. Statutory basis for reasons for decisions Three ways that statute law provides for reasons. • Empowering statute says must provide reasons • General merits scheme includes a duty to give reasons • General duty in the Judicial Review Acts - ADJRA (Cth); JRA (Qld)

. Merits scheme provides for reasons Sect 28 of Administrative Appeals Tribunal Act 1975  s25 indicates that primary Acts may confer power of review on the AAT  s28 specifies that if the AAT has review power then DM may provide reasons  Note that if an applicant can use s28 of AAT Act then obliged to use it first, rather than seeking reasons through s13 ADJRA (see s13(11) ADJRA) Ss157-160 of Qld Civil and Administrative Tribunal Act 2009  Entitlement to reasons through QCAT. . Statutory duty to provide reasons s13 ADJRA – Commonwealth s32 JRA – Queensland TWO ELEMENTS a) ‘Decision of an administrative character under an enactment’ + applicant has ‘standing’ b) Not excluded by Schedule 2 of the relevant Act ‘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.  We will talk about this in Lecture 5. All we need to know at this stage is: • This is going to be satisfied whenever there is 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. Not excluded by Schedule 2 E.g. at Cth level  (a) Defence force personnel and disciplinary matters  (e) Administration of criminal justice  (l) Decisions of the Reserve Bank in connection with its banking operations  (p)(i) Aircraft design under Civil Aviation Act 1988  (q) Personnel management within the Australian Public Service E.g. at Qld level  (1) Administration of criminal justice (especially prosecution decisions)  (3-5) Certain decisions under the Crime and Corruption Act 2001 (11) Local government budgets Procedure for reasons under ADJRA/JRA/AATA/QCAT Time limits – applicant has 28 days (14 days under QCAT) from when applicant was given notice of decision. In writing to decision-maker Decision-maker has 28 days to provide reasons Supervisory jurisdiction is exercised by:  ADJRA (Federal Court or Federal Circuit Court)  JRA (Qld Supreme Court)  AATA (AAT) QCATA (QCAT)

Content of reasons for decisions • Regardless of which avenue is used to obtain a statement of reasons, the content of the statement must include 3 elements: 1. Setting out of material findings of fact 2. Setting out of the evidence relied on 3. Provision of the actual reasons for the decision. • For the classic statement of these requirements see: Soldatow v Australia Council (1991) 103 ALR 723; 22 ALD 750 What do reasons look like? • Is issuing standard form as reasons sufficient? • Re MIMIA Ex parte Palme (2003) 201 ALR 327  Decision under s 501 Migration Act to cancel a permanent resident’s visa due to conviction for serious crime  Under s501G(1) the DM had to provide reasons  Minster ‘crossed out’ various options on the last page of a departmental briefing document to indicate what the ultimate decision was.  Briefing document (with crossed out text and corrected errors) provided as reasons HELD: not adequate as had not informed of the grounds for the cancelling of the visa.  However in the circumstances this was not sufficient to invalidate the decision. What do reasons look like?  Usually in three sections: evidence, findings of fact and decision.  Often the most significant are the findings of fact. • MIMA v Yusuf (2001) 206 CLR 323

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See Gleeson CJ’s judgement [at para 5-10]: Somalia women illegally in Australia claims refugee status. Claims by the applicants that their village had been attacked. Refugee Review Tribunal (RRT) made no mention of this point in its ‘statement of reasons’  RRT under s430(1)(c) Migration Act 1958 (Cth) had to set out facts, findings and decision • HELD: Needs to be a relationship between the findings drawn from the facts that the tribunal made its decision on – not necessarily findings based on facts that the tribunal did not consider. Administrative Law Access to Information Lecture 2.4 Freedom of Information: An overview Freedom of Information overview • Cth: FOI Act 1982 • Qld: Right to Info Act 2009 (replaced earlier 1992 Act) • Purpose of FOI Act (Cth):  Sect 3: (1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by a) requiring agencies to publish the information; and b) providing for a right of access to documents. (2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following: a) increasing public participation in Government processes, with a view to promoting better informed decision making; (b) increasing scrutiny, discussion, comment and review of the Government’s activities. …. (4) The Parliament also intends that functions and powers given by this Act are to be performed … to facilitate and promote public access to information, promptly and at the lowest reasonable cost. • Purpose of RTI Act (Qld):  Sect 3 (RTI Act): (1)The primary object of this Act is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access. (2)The Act must be applied and interpreted to further the primary object. Key Characteristics • Rights of access: s11 (Cth); s23 (Qld) • Access to ‘documents’ • Acts Interpretation Acts 1901 (Cth) s2B and Acts Interpretation Acts 1954 (Qld) s36 Schedule 1 – expansive definition covers data • Access extends beyond ‘files’, to policies and guidelines

Administrative Law Access to Information. Lecture 2.5 Freedom of Information: Exemptions

Freedom of Information Exemptions Public Interest Test (Cth) s11B(3): Factors favouring access to the document in the public interest: (a) promote the objects of FOI Act; (b) inform debate on a matter of public importance; (c) promote effective oversight of public expenditure; (d) allow a person to access own personal information. s11B(4): Irrelevant factors (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. Public Interest Test (Cth) • Dreyfus and Attorney General [2015] AATA 995

 Request for Cth Attorney-General’s diary entries  Claim under s24 that disclosure of diary entries too onerous and would ‘substantially and unreasonably interfere’ with the performance of the Minister’s functions.  HELD: There was a strong public interest in disclosure Qld Act: Core exemption • Based on a a public interest test: s48 + Sch 3 for a list of information Parliament has considered that disclosure is 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 Cth or State (i) security (ii) defence (iii) international relations  Type 1 exemption under Cth Act  Criticisms of the exemption as drawn too widely and open to be overused for anything the govt prefers to keep secret. Cabinet Documents (Cth s34; Qld s48 + Sch 3: ss1 +2) • Reasons for the exemption  s34(1)(a) ‘docs submitted to Cabinet… bought into existence for the dominant purpose of submission to cabinet’  Re Porter v Department of Community Services and Health (1988) 14 ALD 403 Exemption can apply to any document that was prepared and actually submitted to Cabinet, and Documents prepared for the purpose of submission to Cabinet though not actually submitted. But not documents that simply relate to a matter that was on Cabinet’s agenda.  Type 1 exemption under Cth 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; 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 s47F; 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 can be reasonably ascertained  Type 2 exemption under Cth Act: Colakovski v Telecom (1991) 100 ALR 111 unreasonable to disclose identity of nuisance caller(s).  Agency must establish that disclosure is not in the public interest  Often disclosure will be considered unreasonable unless consent for release of information from the person (or their partner, relative etc)  Reports by qualified persons may be restricted to other similarly qualified people 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))...