Administrative Law Summary 1

7/31/2019 Administrative Law Summary 1

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PUBLIC LAW

NEED- RG Capital Radio (wk4) v ABA (2001) 185 ALR 573, [2001] FCA 0855

- s5, 6,7 Legislative Instruments Act 2003 (cth) + prob more sections

- seminar presentations

- McKinnon v Sec, Dept Treasury [2006] HCA 45

o [2006] HCA 45, (2006) 228 CLR 423

- Test in 20.1 communications 20 short answer each 1.5 marks, 50

min

- Do discussion questions in subject outline

15-49, 1-14, 143-157, 134-142, 345-367, 116-133, 172-184

Members of the executive/govt./statutory regulators

o -exercising power-challenging decisions and the exercising of

power.

Admin law defines the proper scope of governmental executive

power.

o through judicial review and merits review

Admin law is the body of general principles which govern the

exercise of powers and discretions by public authorities.

Rule of law-everyone is subject to the law and is equal, law

protecting human rights


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Lawfulness-power to make decision

Responsible govt. executive and legislature combine to form

responsible governance with checks

Judiciary- it is reactive-you must take a problem to them to have it

resolved.

Justiciability-can a law be challenged

Remedial-goes back to person who made

Delegated legislation- by-laws, etc.

Week 1 Lecture

Legislature makes the laws legislates

Executive administers the laws

Judiciary interprets laws

Rule of law elaboration of Dicey s formulation

Umbrella principle - 3 limbs:

Punishment for breach of law as determined by courts;

All subject to the law;

Constitutional principles - judicial determination.

This Mean s


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Exercise of official power (legislative, executive, judicial) must be

supported by constitutional authority or law;

Limits of power only determined via exercise of judicial power. [18]

Occurs within a specific framework

There is no such thing as unfettered discretion (Lord Denning)

Framework

Cth & State constitutions

Section 75(v)

Prerogative power

Prerogative writs

Justiciability

Vessels of admin law - judicial & merits review

Judicial - legal merits review; defect not cured; remedial

Merits - factual merits review; defect cured; remedial

Focus - executive power

Judicial review

Judicial review


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Aim - ensure official action is within power

Grounds

Writs - mandamus, prohibition, certiorari, declaration, injunction

Merits review

Part of continuum

Decreased time & cost

Correct or preferable decision

Internal review and External review - tribunals

Ombudsman

Freedom of information

Privacy , Reasons, Corruption

Themes & values

Fundamental - All official action must lie within the boundaries created

by law.

Lawfulness : decision is authorised

Good faith : decision made honestly

Rationality : decision complies

Fairness : decision reached impartially


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Statutory interpretation

Where themes & values are embedded

Power conferred by statute or delegated legislation

The exercise of power depends on interpretation

Purposive interpretation aim to discover purpose or intention

Extrinsic materials

Not the intention of legislature to authorise abuse

Ultra vires - beyond power

Public/private distinction

Private law - law governing relationships between private individuals

Public law - see definition: admin law

Public power - judicial review: power derived from statute or prerogative

power

CASES

Traditionally - source of power, not nature

UK precedent: Datafin Case (1987)

Context: Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR)


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Decision under an enactment of administrative character (ADJR s 3)

Relief available to individual affected

Privatization

Australian cases

Typing Centre of NSW v Toose (1998)

Vic v Master Builders Assoc (Vic) [1995]

Neat v AWB (2004); Masu Financial Management v FICS & Wong (2005)

D Souza v RANZCP (2005)

Lecture Week 2: Constitutional Framework

Values in Public Law

Transparency

Accountability

Consistency

Rationality

Impartiality

Participation

Procedural fairness

Access to justice

-overall goal of fairness

What is constitutional law?

Branch of law that regulates the three arms of govt:


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Legislature - s 1 - Cth parliament

Executive - s 61 - Cth govt - G-G advised by FEC = Prime Minister &

Ministers

Judiciary - s 71 - system of federal courts

Constitutional Law looks at the nature and scope of these branches

What is administrative law?

The body of principles, practices, mechanisms & institutions which

provide the:

Supervision

Regulation

Structuring

of the exercise of executive power (ministers, departments, agencies)

of government.

*What they can and cannot do

Why is administrative law important?

Regulates relationship between citizen & state

Officials need to explain the rationale for the exercise of their power

Limits govt. operations including implicit limits such as political


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Operates at Cth & State levels

What is the relationship between administrative & constitutional law?

Constitutional framework came first

Admin law is relevantly recent

Constitutional law establishes the structure & functions of govt . -

executive

Constitutional principles & administrative law

Rule of law - essentially, things must be done in accordance with law, not

arbitrarily - including things done by govt.

Parliamentary supremacy - partial not absolute; legislative power is only

subject to constitutional limitations.

Constitutional conventions -customs followed by govt.; no legal sanction

attached.

Bicameralism - two houses of parliament. Lower house = popularly

elected (preferential); upper house =

12/State; 2/Territory (proportional)

Responsible govt. - the executive is responsible to parliament; ministerial

accountability.


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Representative govt - executive responsible to legislature. House of Reps

+ Senate? Executive linked to citizens.

Parliamentary control of supply - budget m ust be authorised by

parliament [ss 81, 83].

Federalism - constitutional power shared between two levels of govt.

autonomous govts. - Cth & States; NOT territorial govts.

Demarcation of power - s 51.

Separation of powers

Arms of govt separate & independent.

o Executive & legislature are notionally separated - s 64

Ministers in both.

o Judiciary is separate from the former.

Separation of powers is a constitutional principle

Required of a government operating under the rule of law equality

Safeguards individual rights & disseminates power

Decentralized power

Modified separation of powers

Development of the doctrine -separation of judicial power


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legislature essential

Need to define judicial power

What is judicial power?

Difficult to formulate an exact definition - Brandy v Human Rights &

Equal Opportunity Commission (1995) 183 CLR 245

Early definition - Huddart Parker & Co v Moorehead (1909) 8 CLR

330

Administrative law: judicial v non-judicial power - courts v tribunals

Various elements have been identified:

Enforceability

[A] binding and authoritative decision of controversies ;

Decisions regarding existing rights & duties

Breadth of discretion

Need for a controversy

Historical considerations

Judicial power of Cth


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Sections 75 & 76 - matters

Original jurisdiction - s 75

Conferral of original jurisdiction - s 76

Separation of judicial power - 2 limbs (A & B)

2 Limbs - Federal judicial can be vested only in Chap III courts - s 71 and

those courts cannot exercise non-judicial power.

Judicial Power:

Griffith CJ in Huddar Parker and Co. Pty Ltd v Moorehead

The words judicial power mean the power which every sovereign must of

necessity have to decide controversies [] The exercise of power does not

begin until some tribunal which has power to give a binding and

authoritative decision is called upon to take action .

A: Judicial power only exercised by Chap III courts

NSW v Cth (The Wheat Case) (1915) 20 CLR 54.

- action brought to the wheat commission

o NSW appealed to HC, agreeing that HC did not have

jurisdiction with no chapter 3 court characteristics

Waterside Workers Federation v JW Alexander (1918) 25 CLR 434 (WWF

Case ).


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14. Exceptions to both limbs

A: Chap III courts delegating judicial power

Administrative officers (part of executive = Chapter II) exercising

judicial power

o Harris v Caladine (1991) 172 CLR 84.

Discrete exceptions - eg courts martial, contempt of parliament.

B: Chap III courts cannot exercise non- judicial power

Judicial officers (Chapter III) exercising non- judicial power

o The Persona Designata doctrine enables courts to uphold

legislation which seeks to confer admin functions upon a

federal j udge acting in a personal capacity .

o Persona designata

- Hilton v Wells (1985) 157 CLR 57; challenged the

validity of s20 of Telecommunications (Interception)

Act 1979

Grollo v Palmer (1995) 184 CLR 348. in context of

amended Telecom Act, now a requirement that fed

judge had to consent to be nominated as an eligible

judge in order to perform functions under the act and

to be so declared by the minister.


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Not incompatible. (incompatible = too close to judicial

function so breaching SOP)

Exception to persona designata - incompatibility - Wilson v

Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189

CLR 1.

Appointment of Chap III judge as reporter - incompatible.

Test - [J&C p 185]

Separation of judicial power: States

Does the strict separation of judicial power that exists at the Cth

level apply to the States?

The textual basis that establishes the Cth incarnation of the rule

does not exist in the States.

o Kable v DPP (NSW) (1996) 189 CLR 51.

Chap III does constrain State parliaments.

Limitations on powers of State court vested with federal jurisdiction

under Chap III.

Court to maintain independence & freedom from political control.

States can vest State courts (vested with federal jurisdiction) with

non-judicial power, but not if this would undermine their

institutional integrity.


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Further challenges to the concept of separation of judicial power at

the State level.

o See also: Fardon v AG (Qld) (2004) 210 ALR 50; Baker v The

Queen (2004) 210 ALR 1.

Note dissenting judgments.

Cth & State Constitutions: comparison

Commonwealth

Compliance essential

Section 128

States

General legislative power

Normal legislative process

Application to administrative law

Distinction between judicial and non - judicial power.

Which bodies can exercise the different types of power.

Distinction between bodies exercising the power.

Contemporary issues about govt. that are relevant to administrative

law

Privatisation /corporatisation.


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Contracting out of services.

Growth of the bureaucracy.

New Admin Law

Kerr Committee recommended

o Est. of Administrative Appeals Tribunal (AAT)

o Introduction of legislation to provide the public with general

right of access to info held by the govt. (basis of the FOI

legislation)

o Statutory reform to judicial review

(later the Admin Decisions (Judicial Review) Act 1977)

(ADJR Act)

o Est. of Ombudsman to receive and investigate complaints

ADJR Act Introduced

o The right to be given reasons for decisions which were also

amenable to review

o A single test for standing

o Codified the grounds of review

o Reduced technicalities of common law judicial review

AAT legislation provided


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o Right to be given reasons for decisions and amenable to

review

o Simplified merits review process

o Right for people to gain a new decision

Summary

Relationship between constitutional & administrative law

Common theme - control of govt power

Limits of power

Accountability

How/why is administrative law relevant to you?

Week 3: Executive Accountability

Judicial Review-

1. Dignan source of power

2. Datafin - body

3. CCSU- source of power

When tackling any question, look at

- decision


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- who

- authority where did it come from

Executive administers the law

Chapter II of Constitution

Compare reality v theory of Chap II

Constitutional conventions - flexibility & discretion

Personnel & Power

The Crown - legal person with rights (like a corporation)

Section 61 - executive power of Cth vested in Queen; exercisable

by the Governor- General as the Queen s representative

Power to do ?

Section 61 - the execution and maintenance of the [the]

Constitution, and of the laws of the Commonwealth.

Exercised by Governor-General, Federal

Executive Council, Cabinet, Prime Minister, Ministers and

government departments and others

Governor-General may exercise power alone, or


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Westminster system would constrain the State

How far should responsibility reach given the nature of the bureaucracy?

Executive is much more

Modern bureaucracy is very complex:

Crown

Cabinet

Inner group of Ministers who make the decisions of govt

Federal Executive Council

Formal version of cabinet

Ministers

Government departments

Public Servants

Statutory Authorities

Established by statute and have common features:

Corporate personality

Board/management structure

Function/objects

Other provisions


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Review

Statutory Offices

Type of statutory body eg Ombudsmen

QANGO - Quasi autonomous non -govt. org eg. RSPCA

Clubs

Type of QANGO

Local government

Subject of many administrative law matters

Administrative Tribunals

Quasi judicial

Scope of executive power

Section 61

Execution of the laws of the Constitution

Maintenance of the laws of the Constitution


Legislature enacts laws


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Executive also given power to enact subordinate legislation

delegated power

Delegated legislation

Rules

Regulations

This muddies the concept of separation of powers

To what extent can legislati ve power be conferred on the executive?

Victorian Stevedoring & General Contracting Co v Dignan (1931)46CLR73

Dignan

Challenge to provision authorising, in broad terms, regulations by

Governor- General

Grant of delegated power = exercise of legislative power

Parliament cannot abdicate its lawmaking power

1.

Decision Delegating legislative power to executive

2. Who- GG

3. Authority Transport workers Act

a. Constitutional doctrines

i. separation of powers s64 of exec


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ii. responsible govt. executive is responsible to

legislature- safeguards.

Legislative power = the power to make laws = the power to delegate.

Control of delegated power

Acts Interpretation Act 1901 (Cth) section 48 - delegated

legislation can be disallowed by each house

Judicial review of administrative action

o limits placed on the discretion of the delegate

Why is delegated power an issue?

Think about the functions of government today

Can the legislature preempt all possible scenarios that may require

regulation?

Execution of the Constitution

Section 61 - broad power

Section 67 - appoint civil servants

Section 72 - appoint High Court & Federal Court judges

Section 86 - collect & control duties of customs & excise


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Maintenance of the Constitution

Protection of Constitution rather than system of govt

Inherent/autonomous executive power - legislative authority not

required, eg ASIO

Inherent power: common law

Prerogative power residue of arbitrary aut hority which at any

given time is legally left in the hands of the Crown. SEE CCSU Case

Why? Section 61 powers are not exhaustive.

Three types of prerogative power.

Prerogative powers

Executive prerogatives - eg declare war, execute treaties, pardons

Prerogative immunities & preferences - special rights, eg, priority

of debts

Proprietary prerogatives - special rights of ownership

Relevance?

Can be exercised without statutory power - but may be limited.


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BUT - executive powers can be altered by statute - could this be

transferred to a private body?

Accountability?

Justiciability

Suitability of executive action to judicial review

Defines boundary for this action - relationship between executive &

judiciary (separation of powers)

NB other contexts

SEE DATATFIN Case

A core meaning?

Court has jurisdiction +

Applicant h as standing +

Argument raised - HOWEVER

Institutional incompetence

Constitutional legitimacy

Institutional incompetence

Unsuitable forum


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Adversarial process

Evidence

Political decisions

Polycentric decisions

? Merits

Constitutional legitimacy

Reluctance to intervene

Constitutional sensitivity

Political questions

Purely executive domain

Prerogative powers

History

Early UK case re actions of King - prerogative powers [PP]

Limits of prerogative power by judiciary not executive

How far can the executive go before legislature will sanction?

Council of Civil Service Unions v Minister for Civil Service [1985]

? Auto- immunity of PP s


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Primary questions

To what extent can legislative power be conferred on the executive?

Etc

Fed parliament is permitted to delegate its law making power to the

executive which in turn is

the legislature of the commonwealth and it alone may lawfully exercise

legislative power.

Impossible to insist upon a strict separation of powers between legislature

and judicial

It has power to confer powers of lawmaking upon other bodies.

Other cases

Roche v Kronheimer (1921)

Huddart Parker Ltd v Cth (1931)

Dignan v Australian Steamships pty ltd (1931)

Hierarchy of exec

Queen gg- pm-ministers statutory bodies

1. Vessel body governer general


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2. Scope must be consistent employment conditions with the

act itself

3. Restrictions disallowance of bills by parliament. Amendments

and repealing

4. Circumstances post ww1 and depression

5. Law with Respect - laws must be made with consideration, not

crazily

a.

legislature has concurrent powers with the state.

b. Cth has enumerative powers and states have general

c. Trade and Commerce Act s51(1

R v Panel on Take overs and Mergers; Ex parte Datafin plc [1982[

The panel was the city s self -regulating mechanism for dealing with

mergers and acquisitions. The applicants, Datafin and Prudential Bache,

complained about the conduct of their competitors in a take over bid and

were unhappy with the panel s decision. When they were refused to seek

JR by the JC, they appealed to the court of appeal.

The nature of the duty is as important as the source of the power.

Decision the panel had a duty to act judicially and its decisions could be

checked by means of judicial review. On the merit however, the court

found no ground to overturn the disputed decision.


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Decision take overs and mergers

Who - the panel of takeovers and mergers

Authority - have an act which actually establishes statutory bodies takes

on a corporate structure e.g. ACCC, ASIC, APRA, FIRB and are involved in

exercising public functions. Not established under statute so how can they

be amenable to judicial review? It is set up as a corporation but

CCSU- UK case

GCHQ main responsibility ensure safety of military info and national

security in 1947 (est) employees were allowed to belong to trade unions.

Industrial actions took place

Question: whether the instruction is valid and effective in accordance with

article 4 of the civil service order in council 1982

- whether the minister was in breach due to no consultation before

giving instructions and making changes to their conditions of work

- appeal dismissed

- given immunity because of the subject matter national security

Australia has also no longer any auto immunity based on the nature of

the subject area.

- Justiciability


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- Action subject to judicial review?

Decision employment restriction

Who Minister for civil service Margaret Thatcher

Authority prerogative power residual power which the crown retains

and uses at their own discretion

They had a legitimate expectation that they would be consulted about the

changes and that expectation was not fulfilled.

Australia has 7 crowns 1 CIROC- crown in the right of commonwealth

6 CIROS crown in the right of state

express- Bradken case rebuttel

implication- bropho

Lecture Week 4

Week 4: Delegated Legislation

1. Introduction

Legislation made by a delegated member of the executive

Long history - eg Statute of Sewers 1531 (Imp) - use in 19th century

Current uncontroversial use - parliament lacks time & money


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2. Separation of powers

Legislature enacts laws

Executive also given power to enact subordinate legislation - delegated

power

Delegated legislation

Rules

Regulations

This muddies the concept of separation of powers

To what extent can legisla tive power be conferred on the executive?

Victorian Stevedoring & General Contracting Co v Dignan (1931)

46 CLR

Dignan

Challenge to provision authorising, in broad terms, regulations by GG

Grant of delegated power = exercise of legislative pow er

Parliament cannot abdicate its law - making power

Cannot go beyond primary Act

4. Why is delegated power an issue?


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Think about the functions of government today

Can the legislature pre -empt all possible scenarios that may require

regulation?

Does it have the time, money & expertise?

5. Criticisms

Erosion of parliamentary sovereignty

Taints the concept of representative government

Potential to place the executive out of reach of accountability

mechanisms

Control of delegated power

Acts Interpretation Act 1901 (Cth)

section 48 - delegated legislation can be disallowed by each House

Statutory Rules Publication Act 1903 (Cth)

Legislative Instruments Act 2003 (Cth) (LIA)

Interpretation Act 1987 (NSW);

Subordinate Legislation Act 1989 (NSW)

Judicial review of administrative action

- limits placed on the discretion of the delegate


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The LIA

Registration, tabling, scrutiny and sunsettin g of Cth legislative

instruments

Administrative Review Council, Rule Making by Commonwealth Agencies

1992 - "patchy, dated and obscure framework

Versions introduced into Parliament in 1994, 1996 and 1998

Objects - s 3

Management of Cth legislative instruments -

FRLI - Federal Register of Legislative Instruments

Consultation by rule-makers

drafting standards

public access

Improved parliamentary scrutiny

Periodic review mechanisms

Terminology - legislative instruments - s 5

Legislative instruments - s 5

An instrument in writing -


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That is of legislative character

Was made in the exercise of power delegated by Parliament

Section 5(1)(a), (b)

Legislative character

Determines or alters the content of law - rather than applying in a

particular case

Has the direct or indirect effect of affecting a privilege or interest,

imposing an obligation, creating a right or varying or removing an

obligation or right

Section 5(2)(a), (b) - NB section 7

Significance of s 5

Application/operation re what the legislative instrument does - not

what it is called

Terminology may have meant the non- application of oversight

legislation

Room for interpretation

Legislative character v administrative character

McWilliam v CASA [2004] FCA 1701


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QML v Blewett (1998) 84 ALR 615

RG Capital Radio v ABA (2001) 185 ALR 573

RG Capital Radio

General v particular

Parliamentary control

Publication

Con sultation

Policy

Power to vary

Executive control of decision maker

Merits review

Binding effect

Declared LIs - s 6

Made under delegated power after commencement:

Regulations

Statutory Rules Publication Act 1903 (Cth)

Territorial ordinance


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Disallowable instrument - s 46A AIA

Proclamation

Declared non -LIs - s 7

Table - under relevant enabling Act:

ASIO guidelines

Fed Police Commissioner s orders

Ministerial directions re Cth companies

Defence force administration

Private tax rulings

Workplace awards and agreements

Consultation - Part 3

Rule -maker should consult - s 17

Effect on business, restrict competition

Appropriate & practicable

Procedurally correct

Unnecessary or inappropriate - s 18


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Minor

Urgent

National security

Failure to consult - s 19

The fact that consultation does not occur does not affect the validity or

enforceability of a legislative instrument.

FRLI - Part 4

www.frli.gov.au

The register - Div 1

Registration - Divs 2, 3 & 4

Compilations - Div 5

Backcapturing - Div 6

Sunsetting - Part 6

LI s up to date & relevant - s 49

Application - s 50

Continue - s 53

Exceptions - s 54


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Disallowance

LIA Part 5

Facilitate scrutiny of registered legislative instruments (s 37)

Manner & circumstances

Application

Consequences

Judicial review

Delegated legislation is susceptible

Rarely enlivened - rule v decision makers

Discretion

Time

Review

SUMMARY

Exercise of delegated legislative power by executive

Judicially recognised

Practical justifications

Mechanisms for oversight


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Ouster clauses

Judicial review - oversee executive action

Distinction between merits & legality - correct/preferable v legality

Ouster, privative, exclusionary clauses - oust review jurisdiction of court

Context


Reactive solution to a problem

Accountability

Limit oversight/appeals

Identify

Protect decision maker

Remove discretion

Subjective powers

Power to private bodies

Finality/preclusion


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Application

High Court protected by s 75 - vesting of judicial power

Federal Court has no protection

State Supreme Courts - no s 75 equivalent

Jurisdictional error

If a decision decision no judicial review

Intra-jurisdictional errors - error re jurisdiction or power - courts

Jurisdictional errors - decision-maker wrongly assuming power to decide

- tribunals

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 (Hickman )

Difficult to apply - interpret ouster clauses as an expansion of DM

power - confer power (intra-jurisdictional error - N/A to tribunal)

Migration Act 1958 (Cth) amended 2001 - privative clause - s 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (D&J 700-707)

Difficult decision

Hickman limited operation

s 474 does not offer jurisdictional error protection

Migration Act 1958 (Cth) s 474

Consistent with Hickman


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Judicial review avai lable -

Exceeding constitutional limits

Narrow jurisdictional error (No J)

Mala fides (bad faith)

Interpretation

S157/2002

Consistent with the Constitution

Strict construction

Acts Interpretation Act 1901 (Cth) s 15AA - purposive

Future

Current interpretation defends will of parliament

Issues

Chap III


Individual rights

Rule of law

SUMMARY


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Executive accountability

Constitutional boundaries

Separation of power

Rule of law

Individual rights

Week 5 Lecture

Week 5: Obtaining Information - FOI & Reasons for

Decisions

What are the benefits of having access to information?

What is the value of access to reasons?

What does Freedom of Information (FOI) legislation provide?

2. Access to government information?

Rationale behind FOI

Representative government & democracy - access to information

Open government

Accountable government

a. Access to what information?

Laws Acts of parliament & delegated legislation

Other

Policies affecting the exercise of discretion


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Information relied upon by decision-makers (DM )

DM s reasons for a decision

b. Restraints on access

Westminster government secrecy & confidentiality

Why?

Crown documents property of Crown

Common law policy - public interest

Statutory provisions, eg Crimes Act 1914 (Cth) s 70

c. Public Interest

Access to information - public interest in citizens being informed

reprocesses of government.

Not defined in Freedom of Information Act 1982 (Cth) (FOI Act ).

Balance: preservation of government secrecy open & accountable

government.

3. Access to information

Three types of laws:

- Freedom of information legislation - now in all jurisdictions (must

determine which one to use: Cth 1982, NSW 1989)

- Preservation of archives - eg Archives Act 1983 (Cth)

- Privacy laws - eg Privacy Act 1988 (Cth)

a. Benefits of FOI


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- Open & accountable government - but difficult to measure. See Aust.

Law

- Reform Commission & Administrative Review Council, Freedom of

Information , Issues Paper 12, Sept 1994

- Impact on agency decision-making & recording of information open

to scrutiny.

Benefits to agencies:

Awareness of role & operation

Openness of procedures

Communication between public & agency

Improved decision-making

b. Criticisms of FOI

Freedom from information?

Use of FOI Act confusing

Restrictions & exemptions

Most requests for personal information - not non-personal information

No oversight body

Fees & charges

Some agencies remain secretive

Record management needs improvement

Review mechanisms sometimes cumbersome

Application following corporatization

Tension between FOI & privacy laws


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4. Cth FOI Act

Section 3(1) - objects

The object of this Act is to extend as far as possible the right

of the Australian community to access to information in the

possession of the Government of the Commonwealth.

a. How?

Section 3(1)(a)

Publication of certain documents & information about government

operations, esp. rules & practices which affect the public in dealings with

departments & public authorities

Section 3(1)(b)

Creating a general right of access to information in the possession of

government but limited by necessary exceptions & exemptions

Section 3(1)(c)

Creating a personal right to bring about the amendment of records

containing

information that is incomplete, incorrect, out of date or misleading.

Section 3(2 ) - interpretation to facilitate & promote disclosure

b. Presumption in favour of disclosure

Objects: s 3


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General right of access to documents held by government: s 11

Right to correct personal info: s 4 , if it incorrect etc: s 48

Agency statements re organisation & functions: s 8

Rules, guidelines & criteria: s 9

Searle Australia P/L v Public Interest Advocacy Centre (1992) 36 FCR 111,

115.

Cf: Re Eccleston & Department of Community Services and Aboriginal

and Islander Affairs (1993) 1 QAR 60, 86-7.

General right of access

A right to information by every person - s 11 to:

a document of an agency, other than an exempt document ;

an official document of a Minister, other than an exempt document ;

Excluded: ss 4(1), 12, 13;

Exempt: s 7 - Sch 2, Pt IV - ss 33, 33A, 34- 40, 43A, 44, 46, 47.

a. Limited access

Is there a document? [s 4(1)]

Is there an agency? [s 4(1)]

Is the document in the agency s possession?

Is it an official document of a Minister? [s 4(1)]

Is the document excluded from the Act?

Is the document exempt?


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Public interest test applies here

b. Procedure

Who may seek access? [s 11 - every person , includes corporation]

Application

In writing to agency or Minister [ss 15(1), (2)(a)];

Include sufficient info to identify document [s 15(2)(b)];

Fee [ss 15(2)(d), 29];

Agencies obliged to assist [ss 15(3), (4), 22(1), 24(6)]

Charges

Set out in Regulations

c. Public entitys decision

Decision to grant access [s 18]

Form of access [s 20; usually within 30 days ss 15(5), (6)]

Decision not to grant access

Defer [s 21]

Delete [s 22(2)]

Refuse [s 24]

Neither confirm or deny [s 25]

Conclusive certificate [docs covered by certain exemptions ss 33(2),

33A(2), 34(2), 35(2), 36(3)]

Access refused - must not relate to reasons in request [s 24(6)

Divert resources - ss 24(1)(a), 17(2)

Interfere with Minister - s 24(1)(b)


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Documents exempt

Document does not exist - s 24A

Reasons must be provided where access denied [s 26]

d. Enforcing duty to provide access

Mandamus - compel DM

Internal review [s 54(1)]

External review by AAT [ss 58, 58F, 59, 59A]

ADJR Act

Ombudsman [s 57]

Annual Reports [s 93]

6. Reforms

ALRC (77, 1996)

- A Review of the Federal Freedom of Information Act 1982

Freedom of Information (Open Govt) Bill 2003

FOI Commissioner - monitor, improve, assist, advise, educate

Objects - promote pro-disclosure

Exemptions - rationalise to apply only re public interest

Charges - not inconsistent with objects

N/A to private sector/govt. business - commercial activities

Privacy laws instead

ALRC 2007 new inquiry

Harmonise laws


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Impact of evolving technology

Info from other countries

Advice - govt & govt agencies

Third party interests

7. Right to reasons

Rationale for reasons

At common law - no general duty: Public Service Board of NSW v

Osmond (1986) 159 CLR 656

Some authorities suggest otherwise

Statute

ADJR Act s 13(1); but note Sch 2

AAT Act - specific requirements, not a general right s 28

FOI Act s 26

Subject specific legislation

Conclusion

Reasons & access to information provide:

Discipline & facilitation

Examination of relevant issues

Consistency & acceptance

Administrative Law Summary 1

Documents

Transcript of Administrative Law Summary 1