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Appeal to the Federal Court against IC review of FOI access refusal decision

Appeal to the Federal Court against IC review of FOI access refusal decision

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This precedent has been authored by Dr Damien J Cremean, Adjunct Professor, University of Queensland.

Introductory note

This precedent is an appeal to the Federal Court against IC review of FOI access refusal decision.

Note that no form in the Federal Court Rules 2011 (Cth) relates specifically to the FOI Act and the this precedent is an adaptation only of Form 75 in the Rules available at: http://www.fedcourt.gov.au/forms-and-fees/forms/federal-court-rules/FCA_form075_20130509.doc

Legislation

Legislation providing for freedom of information is in force in the Commonwealth and in all states and territories under various names.

The Commonwealth Act is the Freedom of Information Act 1982 (Cth) (Cth FOI Act). State and territory Acts are:

• Freedom of Information Act 1989 (ACT);

• Information Act 2002 (NT);

• Government Information (Public Access) Act 2009 (NSW);

• Right to Information Act 2009 (Qld);

• Freedom of Information Act 1991 (SA);

• Right to Information Act 2009 (Tas);

• Freedom of Information Act 1982 (Vic); and

• Freedom of Information Act 1992 (WA).

The Commonwealth Act has served as the base model for all of these laws. It has, however, been amended by the Freedom of Information Amendment (Reform) Act 2010 (Cth). But variations occur now between that Act and those laws. Indeed, as between the various states and territories there are now significant areas of difference as well, due to amendments.

The particular state or territory law in question should be consulted if a state or territory matter is in issue, ie if information is sought at state or territory or local government levels, or from a state or territory agency, the relevant state or territory law must be consulted.

External review: Administrative tribunals In accordance with usual principles of administrative law, review by a tribunal will be undertaken on the basis that the tribunal will be concerned to reach the correct or preferable decision on the evidence or materials before it.

Commonwealth

An application may be made under section 57A(1) of the Cth FOI Act for review by the AAT of a decision of the Information Commissioner:

• on an IC review under section 55K; or

• that an IC reviewable decision in inappropriate for IC review (under section 54W(b)).

The time for applying to the AAT is set out in section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth). Special provision is made for decisions on appropriateness for IC review: section 57A(2) of the Cth FOI Act: section 57A(2) of the Cth FOI Act. The reviewable decision before the AAT under section 57A of the Cth FOI Act is generally speaking a decision of the Information Commissioner.

States and territories

Australian Capital Territory: The Freedom of Information Act 1989 (ACT) does not make provision for an Information Commissioner. There is provision only for appeal to the ACT Civil and Administrative Tribunal (ACAT) under section 60 of that Act.

Northern Territory: By the Information Act 2002 (NT) section 129(1), appeal from the Information Commission lies only to the Supreme Court and on a question of law only.

New South Wales: The Government Information (Public Access) Act 2009 (NSW) section 100 specifies that a person aggrieved by a reviewable decision may apply to the Administrative Decisions Tribunal (ADT) for review of a decision. The Note to that provision states that a reviewable decision does not have to be internally reviewed or reviewed by the Information Commissioner before it can be the subject of ADT review.

Queensland: By section 119(1) of the Right to Information Act 2009 (Qld), a participant in an external review (to the Information Commissioner) may appeal to the appeal tribunal (Queensland Civil and Administrative Tribunal (QCAT)) against a decision of the Commissioner on the external review. Such appeal may only be on a question of law: section 119(2).

South Australia: The Freedom of Information Act 1991 (SA) section 40(1) specifies that an agency aggrieved by a determination made on review may, with leave of the District Court, appeal against the determination to the District Court but only on a question of law. Under section 40(2)(a) a person (other than an agency) aggrieved by a determination of an agency following an internal review may appeal to the District Court and this is not expressed to be limited to questions of law.

Tasmania: The Right to Information Act 2009 (Tas) section 44(1) allows generally for review of decisions to be taken to the Ombudsman. In certain circumstances an appeal lies to the Supreme Court from a decision of the Ombudsman under section 32 of the Ombudsman Act 1978 (Tas).

Victoria: By the Freedom of Information Act 1982 (Vic) section 50 application may be made for review by the Victorian Civil and Administrative Tribunal (VCAT). For example, under section 50(1)(b) from a decision of the Freedom of Information Commissioner refusing to grant access to a document in accordance with a request. There is a public interest "override" provision in section 50(4) of the Act (as noted above) where in certain cases, despite a document being an exempt document, VCAT may determine that public access warrants that access be given.

Western Australia: The Freedom of Information Act 1992 (WA) section 85(1) provides that an appeal lies to the Supreme Court on any question of law arising out of any decision of the Information Commissioner on a complaint relating to an access application.

Appealing to the courts

Commonwealth

A review party may appeal to the Federal Court of Australia, on a question of law, from a decision of the Information Commissioner on IC review: section 56(1) of the Cth FOI Act. The time for bringing an appeal is set out in section 56(2) of the Cth FOI Act. The court's powers include (section 56(6)) any or all of:

• making an order affirming or setting aside the decision of the Information Commissioner (and making a decision in substitution for it): section 56(6);

• remitting the case to be considered and decided again by the Information Commissioner in accordance with the directions of the court: section 56(6); making findings of fact.

Reference should be made to the Federal Court Rules 2011 (Cth) and to the forms under those Rules set out in the Federal Court volume in the series: Practice and Procedure of the High Court and Federal Court of Australia.

States and territories

Australian Capital Territory: In certain circumstances, an appeal tribunal is able to conduct appeals within ACAT. See ACT Civil and Administrative Tribunal Act (ACT) section 79. Then from a decision of the appeal tribunal and from certain other decisions, appeal may be taken to the Supreme Court whether on a question of fact or law. See section 86.

Northern Territory: As noted in item “External review: Administrative tribunals”, appeal lies to the Supreme Court from the Information Commissioner but on questions of law only. See Information Act 2002 (NT) section 129(1).

New South Wales: In a way similar to the ACT, an appeal panel is able to conduct appeals within the ADT. See Administrative Decisions Tribunal Act 1987 (NSW) section 113. Then from a decision of an appeal panel, appeal may be taken to the Supreme Court on a question of law only. See section 119 of that Act.

Queensland: Again, as with the ACT, a party may apply to the appeal tribunal of QCAT against a decision of QCAT but on a question of law only. See Queensland Civil and Administrative Tribunal Act 2009 (Qld) section 143(1). In various circumstances, a person may then appeal to the Court of Appeal. See section 149.

South Australia: As seen in item “External review: Administrative tribunals” a person may in certain circumstances appeal to the District Court under section 40(2)(a) of the Freedom of Information Act 1991 (SA). Appeal lies then to the Supreme Court. See District Court Act 1991 (SA) section 43.

Tasmania: In item “External review: Administrative tribunals” it was noted that appeal may lie to the Supreme Court from decisions of the Ombudsman.

Victoria: By section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), appeal lies with leave from VCAT on a question of law to the Supreme Court (which may be the Court of Appeal of the Supreme Court depending on the VCAT member making the decision). It is necessary for an applicant to identify precisely the question(s) of law involved and that there is a “real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave”; it may also be the case that it must be shown that to allow the error(s) to go uncorrected would impose “substantial injustice”.

Western Australia: As noted in item “External review: Administrative tribunals”, appeal may lie to the Supreme Court from decision of the Information Commissioner.