Administrative Law 70617 - Essay PDF

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Distinction Essay for Admin Law...

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UTS:Law Assignment Cover Sheet for Online Submissions Instructions for students: 

Please complete and include this cover sheet when submitting online assignment .

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The cover sheet should become page 1 of your assignment – do NOT submit this coversheet as a separate document to your assignment.

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Please note that by submitting this form you are agreeing to the following ACADEMIC HONESTY DECLARATION:

ACADEMIC HONESTY DECLARATION

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I confirm that I am aware of the University rules regarding plagiarism and academic misconduct.

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I confirm that this assignment is entirely my own work and I have not previously submitted any part of it for assessment at UTS or any other institution.

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I confirm that I have read and understood the current version of the UTS:Law Guide to Written Communication.

STUDENT DETAILS (to be completed by student) Student Number: Family Name: Given Name(s): Subject Number: Subject Name: Subject Coordinator:

Dr Karen Lee

Word Count:

2997

Date of Submission:

/09/2020

Recipient: Souley Advocate Sender: Re: Access Refusal Decision – Fairtelex & Broadband for the Nation Co Limited (BFTN)

A) Jurisdiction The Information Commissioner (IC) has the ability to review the access refusal decision under the jurisdiction of the Freedom of Information Act (the ‘Act’), specifically ss 54K(a) and 54L(2)(a). With the facts accessible, the IC is able to reevaluate the decision BFTN had composed that refuses access to provide documents,1 in compliance with the request that was occasioned by Billy.2 As they possess the power to review said decision, they may also alter the decision made. They have the authority to produce a ruling that either varies from the decision established by BFTN or ratifies it as a whole. The IC can also completely dismiss BFTNs decision, ultimately leading to the demand for the documents to be delivered.3

In accordance with the IC’s current powers, they are also endowed with the ability to use alternative prerogatives that continue to assist in the accumulation of information. This benefits the IC as they are able to utilise a diverse array of powers that contribute in reviewing BFTNs decision. Under s 55R, the IC retains the power to compel BFTN to supply certain documents and knowledge about the issue under review, in order to assist themselves throughout the complex process.4 Consequently, BFTN may be requested to provide documents 1, 3, 5 and 6, which they declare to be absolved records. The IC may also order 1 Freedom of Information Act 1982 (Cth) s 54L(2). 2 Ibid s 53A(a). 3 Ibid s 55K(1). 4 Ibid s 55R(1).

for the deliverance of these specific documents in order to ascertain whether they are in feasible condition to be supplied to Billy, who would receive a modified carbon copy.5

Documents 2 and 4 may be exempt, as prescribed under s 33 and 34, if the IC does not acquire evidence on affidavit.6 If they are not satisfied with the evidence submitted, they may require the document to be produced for inspection.7 As the IC exercises certain powers, they are able to embody BFTN, in the respect of exerting their functions and powers.8 Nevertheless, the scope of the IC’s powers are limited, as documents that are deemed exempt are prohibited from being accessed, hindering their ability to overlook the decision.9

B) Assessment of the Decision To determine whether the access refusal decision formulated by BFTN is ‘correct or preferable’, we will refer to the case of Re Drake v Minister for Immigration and Ethnic Affairs (1979), as it specifies the correct connotations of how a decision can be regarded. 10 For the original decision to be deemed correct or preferable, the ‘correct’ component must be constructed according to relevant laws. It is considered only feasible for one judgement to be ruled on the basis of the facts given or the law used. 11 In relation to the ‘preferable’ constituent, there can be various rulings that are precise and in line with the law, but only one must be chosen based on it being the most sensible outcome.12 A judgement is necessary to determine which decision is predominantly favoured.

5 Ibid s 55T(4). 6Ibid s 55U(3). 7 Ibid. 8 Ibid s 55K(2). 9 Ibid s 55L. 10 Re Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. 11Administrative Reviews Council, Australian Administrative Law Policy Guide (Policy Guide, March 2011) 13. 12 Ibid.

i.

Annexure, Item 1 – Contract between BFTN and Fusée

BFTN have refused access to documents required by Billy, who is a correspondent on behalf of Fairtelex, on the grounds of s 47 of the Act. S 47 stipulates that the contract is deemed to be an exempt document as the potential for it to be disclosed would heighten the risk of broadcasting trade secrets.13 BFTN has refused to give access on the premise that the contract produced is confidential, as it comprises of archives of Fusée, expenditure for the satellite constructed and standard protocol for BFTN when handling customer dissatisfaction. The refusal to access the contract in issue is constituted on the rationale that publishing the exempt document would disclose ‘trade secrets’14 or reveal other sensitive information that holds commercial value. If released, it would reasonably be expected to be destroyed or diminished.15 In determining whether it is to be absolutely exempt, the basis that BFTN has conducted their decision is in need of further clarification, as there is lack of perspective as to whether the judgement was comprised of subsection (a) or (b).

The term ‘trade secret’ has not been explicitly outlined within the Act, but the IC has adopted a definition to be “any formula… device, or complication of information which gives an advantage to competitors who do not know or use it.” 16 It is also bound by technicality, as the more intricate the information is, the more plausible it is to be a ‘trade secret’. 17 Considering 13 Freedom of Information Act 1982 (Cth) s 47(1). 14 Ibid. 15 Ibid (b). 16Reynolds C. Seitz, ‘Reinstatement of the Law of Torts’ (1940) 24(3) Marquette Law Review 757.

17

‘Key published decisions applying Section 45(1)(a) FOI Act’, Office of the Information Commissioner (Web Page, 30 April 2012) .

the reasons stated by BFTN, it cannot be completely exempt under s 47(1)(a) as the material disclosed is not sufficient enough to amount to being established as a ‘trade secret’. Although the contract stipulates ‘unique customer procedures’, they cannot be established under a ‘trade secret’ regardless of the substantial information exchanged between both parties, 18 as there is disparity between clarification.

Although the basis to refuse access to the documents cannot be wholly exempt under s 47(1) (a), it can be established to be exempt under s 47(1)(b). 19 For information to be commercially valuable, it must intend to serve a purpose in implementing commercial functions that are endorsed by the business or the individual concerned.20 Information that is commercially valuable is said to be material that consists of prices that are calibrated to a certain degree, future business schemes and other matters that are utilised by a business. 21 As the contract in dispute discloses of unique policies to manage customer complaints, it would be detrimental to both BFTN and Fusée to disclose commercially valuable information and it would be reasonably foreseeable for such affairs to be discarded.22 In spite of Document 1 being absolutely exempt under s 47(1)(b), it cannot be assessed to uphold the ‘correct or preferable’ decision as BFTN have not provided sound clarification on what subsection it is deemed to be completely liable from. The factor of being legally correct does not stand, and it is on this basis that we seek to challenge the refusal of access to the contract imposed.

ii.

Annexure, Item 2 – 35 Technical Drawings of the Earthwrangler Satellite

18 Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241. 19 Freedom of Information Act 1982 (Cth) s 47(1)(b). 20 Guidelines issued by the Australian Information Commissioner under section 93A of the Freedom of Information Act 1982 (‘Guidelines’) cl 4(2). 21 Ibid. 22 Guidelines 5.205.

The documents in inquiry are addressed to be 35 technical drawings that depict the functions and features of the Earthwrangler. BFTN claims that these documents are exempt under s 33(a) of the Act as if released, it would enforce complications for valued BFTN customers as they would be more susceptible to cyber-attacks from external “state-based” hackers. BFTN have ‘correctly’ established the principle for exemption, as the disclosure of such advanced material can progress to inflict damage on the security 23 and defence24 of the Commonwealth. This results in residents being vulnerable to the interception of foreign hackers, who are equipped with the ability to access information that could jeopardise the security of the Nation.

The test applied determines the feasibility of damage arising, attributable to the divulgence of information.25 The damage that could possibly be inflicted on the Commonwealth must be a rational presumption,26 and given the submissions, it can be feasible to occur as hackers are equipped with extensive knowledge and could summon strategies that are likely to infringe the security of the State. It is for these reasons that this document can be absolutely exempt under s 33(a) of the Act, as the Commonwealth are under a strict obligation to guarantee security for citizens and their confidential data. Nevertheless, more clarification is essential to further declare this document exempt on substantial and existent grounds.27

iii.

Annexure, Item 3 – UTS Research Report on Satellite Technology Options

23 Freedom of Information Act 1982 (Cth) s 33(a)(i). 24 Ibid (ii). 25 Bell and Secretary Department of Health (Freedom of Information) (2015) AATA 494. 26 Re Maksimovic and Australian Customs Service [2009] AATA 28. 27 Attorney-General’s Department and Australian Iron and Steel Pty Ltd v Cockroft (1986) 10 FCR 180.

BFTN refuses to give access to the UTS research report on the grounds that the disclosure of the document would incline towards a disadvantage for the agency, as it contains information relating to research conducted by a specified research organisation.28 We seek to negate the refusal to access, as per s 47H of the Act.

Pursuant to s 47H, it specifies that a document may be determined to be conditionally exempt if it contains information relating to research that is being, or is to be, undertaken by an officer of an agency;29 or if its disclosure of sensitive information would be likely to imperil BFTN to severe disadvantage.30 The report cannot be conditionally exempt as it was not established by an appropriate agency, stipulated in Schedule 4 of the Act. 31 Additionally, the research paper composed was published as a book chapter, instituting how it was already made publicly available and the research aspect was already completed. It would also be credible to note that the disclosure of the report, which composes of transcripts in relation to the design, purchase and operation of the Earthwrangler, would not have any disadvantageous effects to BFTN.

Although the research report alleges to contain information relating to investigation conducted by an agency, for s 47H(b) to apply, the harm and disadvantage BFTN is said to incur if the documents are released, must be reasonably expected to transpire. It must go further than a mere assumption or claim that damage may perhaps arise if the report were to be published.32 It is on this basis that we seek to challenge the refusal of access to the research 28Freedom of Information Act 1982 (Cth) s 47H. 29 Ibid (a). 30 Ibid (b). 31 Ibid sch 4. 32 Guidelines 6.14.

report, as the agency is unlikely to sustain any disadvantages if the document were to be produced to the public.

iv.

Annexure, Item 4 – Briefing Paper

The briefing paper is currently in question as to whether it can be wholly exempt by BFTN, under s 34 of the Act.33 It has been considered to be a ‘Cabinet document’ as it was imparted onto the Prime Minister before he attended a Cabinet meeting. The refusal of access can be challenged pursuant to s 34 and s 11B, as BFTN have not correctly identified the purpose of this briefing paper and whether its intended use was for the Cabinet meeting stated. The document is said to also specify certain procedures that BFTN adheres to when addressing customer complaints. Under s 11B, we also challenge the decision as the information contained can be seen to inform debate on a matter of public importance, as it concerns affairs dealing with BFTN’s consumers and the efficacy of BFTN when processing complaints.

Section 34 declares extensive rules that conclude a Cabinet document to be absolutely exempt. It must have been submitted to the Cabinet for consideration or it was proposed by a Minister to be submitted,34 or it was brought to fruition for the dominant purpose of submission for consideration by the Cabinet.35 Although these elements are enforced to protect documents from being entirely revealed, they cannot exempt the document as there is no definitive communication that the document was established for the purpose of submission for consideration by the Cabinet; or that it was deliberated by a Minister to be submitted. The 33 Freedom of Information Act 1982 (Cth) s 34. 34 Ibid s 34(1)(a). 35 Ibid.

term ‘deliberation’ has been defined to be an exhaustive debate in Cabinet, in which they inspect an array of views that assist in proposing a decision, but do not necessarily achieve one.36 There is no explicit detail about the matter submitted, or proposed to be submitted to Cabinet;37 creating a scope for us to challenge the access refusal decision made.

Furthermore, we seek to challenge the access refusal decision on the basis that it contains matters concerning public importance that could spark debate. Although factors outlined in s 11B are exhibited to be adequately broad, the disclosure of this document is crucial as it deals with specific aspects of public significance and interest.38 It is said to contain steps actioned by BFTN to address customer complaints since July 2020 and we seek to obtain access as the general public should be informed about BFTN’s procedures.39 Prior to the complaints received in July 2020, Australian residents were promised improved broadband services backdating to April of 2019. To disclose such information would be valuable to the public as BFTN continued to have extensive issues on broadband outages and displayed inefficacy in coping with such matters. If such documents were disclosed, customers would be advised as to what to invest their time and finances to, reinstating how this document cannot be exempt as it is of interest to public importance.

v.

Annexure, Item 5 – Report by Foresight Recruitment Planners

36 Dan Conifer and Department of the Prime Minister and Cabinet (No. 3) (Freedom of information [2017] AICmr 132 (7 December 2017). 37‘Definition of Cabinet Documents’, Queensland Government; Department of the Premier and Cabinet (Web Page, 18 May 2016) . 38 Re Cleary and Department of the Treasury (1993) 31 ALD 214. 39 Freedom of Information Act 1982 (Cth) s 11B.

BFTN have refused access to the report organised by Foresight Recruitment Planners (FRP), on the grounds that ‘its disclosure could have a deleterious effect on the proper and efficient conduct of BFTN’s operations’, pursuant to s 47E of the Act. It is on this basis that we pursue to challenge the refusal of access to the report, under s 47E and s 11B.

For the report to be conditionally exempt, section 47H(d) prescribes that its disclosure ‘would, or reasonably be expected to… have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.’40 If published, the report cannot be seen to detrimentally impact the operations and efficacy of BFTN, as it declares to solely calculate information regarding staff and whether additional personnel is needed if BFTN purchased Earthwrangler. For the exemption to apply, the substantial adverse effect said to be imposed has to be reasonably expected to occur and it cannot rely on scant allegations or presumptions.41 It is on this foundation that we endeavour to challenge the refusal access to the report, as BFTN are unlikely to sustain any adverse effects towards their operations.

Furthermore, we intend to object to the conditional exemption of the report as it is in the public interest for it to be disclosed. If supplied to the State, it would promote effective oversight of public expenditure as it unveils the mechanisms and operations of the Earthwrangler.42 Given the facts at hand, Australian taxpayers disbursed over $1 billion dollars for the satellite to function. It was also rumoured that BFTN did not recruit a sufficient number of employees in order for the satellite to operate conventionally. For consumers to articulate that their broadband connections were slower than before the 40 Ibid s 47H(d). 41 Guidelines s 6.101. 42 Freedom of Information Act 1982 (Cth) s 11B(3)(b).

commencement of Earthwrangler, it is opportune for the public’s interest to disclose these documents as it would reinforce positive oversight of public expenditure.43 It would also be beneficial for the public as it would entice debate over significant issues and supply adequate reasoning as to why the satellite failed to advance as intended.

vi.

5 Boxes containing project-related Documents – 257 words

It was estimated that 5 small boxes, each containing approximately 500 pages in relation to the Earthwrangler would entail a year’s worth of reading, in order to determine whether there is a viable exemption or if they are relevant to the request. We intend to challenge the refusal of access, on the foundation that ‘it would be an unreasonable diversion of the time and resources of BFTN’, as per section 24AA and section 24AB of the Act.

A refusal is sustained where a request would be seen to ‘substantially and unreasonably divert resources.’44 For the refusal to be justified, BFTN must take reasonable steps to issue a written announcement, which would consist of the intention to refuse, a practical refusal reason, a designated contact person to which the applicant may consult and a consultation period of 14 days.45 This formation grants a review of the preliminary request and establishes ample amount of time to discern any conceivable rationales for refusal. As BFTN did not confer any of the practicable measures, we seek to challenge the refusal of access as they did not provide us with the explicit intention to refuse, nor did they accommodate us with a correspondent to overlook our appeal. To declare that it would take a year to examine all the 43 Australian Government, Telecommunications in New Developments Policy (Government Policy, 1 September 2020). 44Freedom of Information Act 1982 (Cth) s 24AA(1)(a)(i). 45 Ibid s 24AB(2)(a)-(e).

materials given is highly implausible and cannot mitigate the refusal of access.46 For this instance to arise, BFTN must negotiate with Fairtelex to determine phases in which the documents can be published.47

As BFTN were inadequate in upholding the scope of s 24, we advise to challenge the refusal of access, as if the agency had correctly applied the extent of the Act, there would not be such an excessive amount of material to review; thus eliminating the possibility for an unreasonable diversion.

C) Merits Review Options

As stipulated by the Act, there are several other avenues...