Freedom of Information. Adequacy of reasons

Transcription

1 Freedom of Information Adequacy of reasons There is no general rule of the common law that requires reasons to be given for administrative decisions: Osmond v Public Service Board of NSW. Notwithstanding, documents that contain reasons may be accessed by way of court action and subsequent court procedures and rules (discovery): Sankey v Whitlam. A general statutory duty to provide reasons exists under the ADJRA (Cth) (s 13) and JRA (Qld) s 32. However this general duty is circumvented where the AAT/QCAT Act is applicable. Is review conferred? Is there a statutory requirement under the Act for reasons to be given? If yes, reasons is defined as: a setting out of material facts, the setting out of evidence upon which those findings were made and a set of reasons: Acts Interpretation Act 1901 (Cth) s 25D; Acts Interpretation Act 1954 (Qld) s 27B. 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: Soldatow. The reasons of an administrative decision-maker are also meant to inform and not to be scrutinised upon by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Wu Shan Liang. Merits Scheme: AAT Act 1975 (Cth) s 25 indicates the primary Act may confer on the AAT review power. s 28 specifies that if the AAT has review power then decision maker may provide reasons; further reasons available if insufficient: s 28 (5). Note that if applicant can use s28 of AAT then obliged to use it over s 13 of the ADJRA: s 13 (11) ADJRA. Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 158: (i) but, it needs to be a decision the Queensland Civil and Administrative Tribunal (QCAT) can review, for example: (A) adults with impaired decision-making capacity; (B) anti-discrimination; (C) building disputes; (D) children; and (E) minor debt disputes. Note that if the applicant can use s 158 of the QCAT Act then they are obliged to use it over s 32 JRA: s 13 (11) ADJRA. Statutory duty under the Judicial Review Acts (to provide reasons) As mentioned there is a default duty to provide reasons in both federal and state jurisdictions:

2 (a) s 13 ADJRA Commonwealth; and (b) s 32 JRA Queensland. Two elements: (a) Decision of an Administrative Character Under an Enactment + applicant has standing (ss 3,5 ADJRA, ss4, 20 JRA); (b) Not Excluded by Schedule 2 Time limits applicant has 28 days from when applicant was given notice of decision. In writing to Decision Maker DM has 28 days to provide reasons Effect of decision? Form of decision? Decision of administrative character Decision of administrative character is going to be satisfied whenever we have a decision that is clearly provided for in an Act of Parliament. There are technical differences between Queensland and Commonwealth, for example: (a) Under Queensland, applicants can apply to some non-statutory schemes (s 4(b) JRA); (b) Under the Commonwealth ADJRA, decisions of the Governor-General are exempt (s 3(1)(c) ADJRA) Standing The applicant has standing for review given that personal (commercial) interests are directly affected by the decision: s 27 (1) Not excluded by Schedule 2 Not excluded by Schedule 2 applies to both Commonwealth and Queensland differently: (a) Commonwealth level the following extracted sections may apply: defence force personnel and discipline matters certain tribunals commercial decisions of the Australian Honey Board, AWB, Aust Wool Corp aircraft design under Civil Aviation Act 1988 (b) Queensland level the following extracted section may apply: administration of criminal justice, especially prosecution decisions certain decisions under the Crime and Misconduct Act 2001 (Qld) local government budgets On the facts the reasons are inadequate because: Although reasons contain findings on material questions of fact, and also refers to the

3 evidence relied upon, the reason are inadequate because: Insufficient detail in relation to the relevance of evidence relied upon! suggests decision based on irrelevant considerations/neglected relevant considerations. Error of law? Made for a proper purpse?" No explanation or outline of the reasoning process. Freedom of Information (a) Commonwealth Freedom of Information Act 1982 (Cth) (FOI Act) s 11 (1) provides the right to obtain a document of an agency or minister. (b) Queensland Right to Information Act 2009 (Qld) (RTI Act) provides the right to be given access to (a) documents of an agency; and (b) documents of a Minister. A written request must be submitted which (s 15): States request is made under FOI Act. Provide info allowing documents to be identified. Include a prescribed fee. Relevant documents which should be requested by the applicant include: Letters Policy/practice manuals A copy of the applicant s application form Material supplied by a third party A copy of the applicant s file A copy of delegation of authority Any other information or document relied on Freedom of information access rights are however restricted by exemptions on certain subject matter: Personal information (s 41 FOI Act (Cth); s 49 + Sch 4: Part 3 RTI Act (Qld)) Conditionally exempt if disclosure would involve the unreasonable disclosure of personal information about any person: Colavoski. On the facts... Access to an edited copy of documents (modified by deletions) may be obtained: s 22 FOI Act (Cth). National Security s 33 (Cth); s 9 RTI Act (Qld) (not to be disclosed) s 33(1)(a) document exempt if would, or could reasonably be expected to, cause damage to: (i) security (ii) defence (iii) international relations Cabinet Documents (s 34 FOI Act (Cth); s 48 + Sch 3: ss1 +2 RTI Act (Qld)) (not to be disclosed) Under s 34(1) (1), documents submitted to Cabinet...or bought into existence to submit to cabinet are treated as exempt to protect the ministerial responsibility that is

4 Merits Review Jurisdiction: Commonwealth/Queensland jurisdiction conferred under the Act. Commonwealth Jurisdiction - AAT S 43 (1) Administrative Appeals and Tribunal Act 1975 (Cth) ( AAT Act ) allows full merits review subject to the primary Act. Under the Act, review is conferred on the AAT without limit on the operation of merits review i.e. full merits review is available. The AAT can exercise all powers and discretions under the Act: s 25 (3). The AAT can consider a decision with fresh information: Shi v MARA. The AAT is not bound to adopt government policy (although it may be very persuasive): Drake (No 2). The AAT may affirm, vary, or set aside (substitute/refer) a decision under review: s 43 (1). Applications must be in writing: s 29 (1) Applications must be made within 28 days of decision: s 29 (2); this time period may be extended: s 29 (7). The applicant has standing for a review under the AAT Act given that personal interests are affected by the decision: s 27 (1). This includes the interest of organisations or associations of persons: s 27 (2). THE ACT MAY CHANGE STANDING TO APPLICANTS. Distinguish Transurban Citylink v Allan (1999) 95 FCR 553 the applicant has the required proximity to the issue such that personal interests are affected. The question for the determination of the AAT is whether the decision was the correct or preferable one based on the material before the Tribunal: Drake (No 1) at [68] per Bowen CJ and Deane J. MUST SHOW THE SECTION THAT PROVIDES FOR THE DECISION. A decision includes: failure to make a decision after expiry of statutory time limits: s 25 (5). Allows review of delegated decisions: s 25 (3). If a decision is tainted by errors of law s 43 allows the AAT power to correct poor (purported) decision making: Collector of Customs. State Jurisdiction QCAT Qld Civil and Administrative Appeals Tribunal Act 2009 (Qld) (QCAT). Merits review - effectively replicating the AAT s replicator power of the original decision maker, to: (i) make the correct and preferable decision (i.e. consider questions of fact, discretion and law) (s 20 QCAT Act); and (ii) exercise full merits review power (i.e. stand in the shoes of the original decision maker and make another decision, which is consequential on (i) above if one considers the reasoning in Drake (s 24(1) QCAT Act).

5 Substantive Arguments 1. Questions of fact: (...preferable decision) FCT v Swift (1989) 18 ALD 679 Types of Facts can be further broken down into: (a) Primary Facts set of facts that they can immediately read from the documents they have been given; and (b) Inferences of Fact involves more investigation then simply reading the facts. Both types of fact are really about the evidence that is available. In essence, the question for the decision maker is what facts does the evidence prove? Waterford v Commonwealth ( ) 163 CLR 77 per Brennan J at 77 and 78: an appellant cannot supplement the record by adducing fresh evidence merely to demonstrate an error of fact. As such, questions of fact generally go to the merits of the decision. However, there are a number of exceptions to this basic principal: (a) Jurisdictional Facts (where X must exist for Y to have power): (i) If the set of circumstances (X) is so important with regard to the decision maker s ability to exercising their power, the decision maker who breaches this undermines their own capacity to have jurisdiction in the first place (i.e. an error of law); (ii) The legal question being: did the decision maker actually find that X exists? (b) No Evidence Rule (was the finding of fact grounded on no-evidence?) (question of law). Outline submission (any new facts, or avenues to explore to find new facts)? 2. Questions of Discretion (...preferable decision): FCT v Swift (1989) 18 ALD 679 If the decision maker goes outside the legitimate bounds, they have made a prohibited decision. As long as they stay within the legitimate bounds, then the decision will be valid. Where an error of discretion is bad, the decision may become a question of law not just of merit. For example: No fettering rule Did the decision maker fail to exercise discretion by blindly following a policy or directive? Improper purpose Did the decision maker use the discretion for an improper purpose? Relevant consideration