Week 9 Reasons for Decisions and Freedom of Information
REASONS FOR DECISIONS
and FREEDOM OF INFORMATION
Texts:
Creyke & McMillan Ch 18
Aronson, Dyer & Groves Ch 8
General Introduction
The Report of the Senate Select Committee on a Certain Maritime Incident, extracted in Creyke & McMillan Ch1, emphasises that a critical ingredient of effective accountability and public participation is the securing of sound information.
In this topic we examine both the legal avenues for obtaining information about government decisions and policies, and more generally about the information government holds. We also examine the notion of administrators giving reasons for decisions in light of the fact that there is no duty at common law for administrators to give reasons for decisions.
It is stating the obvious that it is difficult if not near impossible, to bring an action for judicial review if an applicant does not how or why a decision was reached. Hence, the importance of reasons for decisions and mechanisms for obtaining information held by government.
The High Court in Osmond’s case refused to create a common law duty and left it to Parliaments to create a duty to give reasons. There will be an examination of two general statutory duties – s13 of the ADJR Act (Cth) and s 28 of the AAT Act (Cth).
There will also be an examination of accessing information through Freedom of Information (FOI) legislation, which has been enacted in all jurisdictions in Australia.
Such legislation provides access to documents, as distinct from reasons or government information more generally, as well as policies which impact on the public to be disclosed. FOI legislation reverses the presumption in favour of secrecy by creating a legal right of access to documents in the possession of government. This right however is subject to a range of exemptions and exclusions. A large body of case law has developed around these exemptions, particularly as governments have been slow to embrace openness.
1. REASONS FOR DECISIONS
1.1 COMMON LAW
* Public Service Board of New South Wales v Osmond (1986) 159
CLR 656: reversing [1984] 3 NSWLR 447
1.2 ADJR ACT
ADJR Act, ss 13, 13A, 14 and Schedule 2
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
(1996) 185 CLR 259
* Minister for Immigration and Multicultural Affairs v Yusuf (2001)
74 ALJR 1105
1.3 OTHER STATUTORY DUTIES
Administrative Appeals Tribunal Act 1975 (Cth) ss 28, 37, 38, 43(2),
(2B)
Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183
Acts Interpretation Act 1901 (Cth) s 25D
AAT Act Statement of Reasons
Under s.28 of the AAT Act a person who is entitled to apply to the AAT for a review of a decision may request the decision maker to provide a:
· statement
· in writing
· setting out findings on material questions of fact
· referring to the evidence or other material on which those findings were based, and
· giving the reasons for the decisions.
A request for a statement of reasons must be made within 28 days of the receipt of the decision in writing.
The decision maker has 28 days to provide the statement of reasons.
The applicant has a further 28 days from the sending of a request for a statement of reasons in which to lodge an AAT application for review of the decision.
ADJR Act Statement of Reasons
Under s.13 of the ADJR Act certain persons are entitled to apply to the decision maker for a statement of reasons similar to a s.28 statement under the AAT Act.
A request for a statement of reasons must be made within 28 days of the receipt of the decision.
The decision maker has 28 days from receiving the request to provide a statement of reasons.
The applicant has a further 28 days from the making of the request for a statement of reasons to commence Federal Court proceedings under the ADJR Act.
A person cannot apply for a statement of reasons when:
· the person could have applied for a statement of reasons under the AAT Act;
· the decision complained of contained or was accompanied by a statement of reasons; or
· the decision is included in the classes of decisions in Schedule 2 of the ADJR Act.
Exclusions in Schedule 2 of the ADJR Act include decisions:
· relating to the administration of criminal justice, including:
o the investigation or prosecution of persons for any offence against a law of the Commonwealth;
o requiring the production of documents, the giving of information or the summoning of persons as witnesses;
o decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to or may result in the bringing of such proceedings for the recovery of pecuniary penalties arising from contraventions of Commonwealth law.
Rationale for the Giving of Reasons
At common law courts are required to give reasons for their decision. Reasons are necessary on at least two grounds - to enable the parties to understand the basis of the decision and to enable any right of appeal to be exercised.
In the executive sphere, however, there is no such obligation - there is no general common law right to reasons. Public Service Board v Osmond (1986) 159 CLR 656. Hence, any provisions for reasons have to be introduced by statutory provisions. There are, in fact, four sets of such provisions. The two major ones, which we discuss as noted above, are the Judicial Review Act 1977 and the AAT Act 1975.
*Public Service Board v Osmond (1986) 159 CLR 656
Re Palmer and Minister for ACT (1978) 23 ALR 196
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Collins v Repatriation Commission (1980) 48 FLR 198
Australian Telecommunications Corporation v Davis (1991) 30 FCR 467
*Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500
*Wu Shan Liang v Minister for Immigration (1995) 57 FCR 432
*Collector of Customs v Pozzolanic (1993) 43 FCR 280
Benefits for the Giving of Reasons
First, the practice of providing statements of reasons has the potential to improve the quality of primary decision-making.
Secondly, providing statements of reasons can be seen as part of a general due process requirement.
Thirdly, statements of reasons assist applicants in their consideration of whether to exercise their rights of review or appeal.
Fourthly, statements of reason assist tribunals and courts in providing merits and judicial review.
Finally, the practice of providing statements of reasons may promote public confidence in the administrative process by disclosing the reasoning process of decision-makers to the public.
What are Adequate Reasons?
There is no succinct answer to this question. It is a matter of degree. Judges differ on this issue.
Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635
Politis v Federal Commissioner of Taxation (1988) 2 ATC 5029
Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233
Dornan v Riordan (1990) 24 FCR 564
Kermanioun v Comcare [1998] 1529 FCA
Kandiah v Minister for Immigration and Multicultural Affairs [1998] 1145 FCA
What are the Essential Requirements?
Once again, there is no definitive answer to this question, although as mentioned earlier, where the obligation is imposed by statute, ‘substantial compliance’ is sufficient.
Dodds v Comcare Australia (1993) 31 ALD 690
*Kermanioun v Comcare [1998] 1529 FCA
The ARC Guidelines for Preparing Statements of Reasons
This 2002 booklet aims to provide a succinct, user-friendly set of guidelines on preparing appropriate statements of reasons, based not only on what the Council considers to be the desirable policies, but also on the terms of relevant Commonwealth legislation, and taking account of court and tribunal decisions.
Eight questions or checkpoints are asked as follows:
• One, does the decision-maker have an obligation to provide a statement of reasons?
• Two, even if an obligation exists, can the decision-maker refuse to provide a statement of reasons?
• Three, assuming an obligation, what does the decision-maker need to show in the statement of reasons?
• Four, what should the decision-maker do if other or better reasons are identified after the decision is made?
• Five, how should a statement of reasons be prepared?
• Six, what should the decision-maker do where recommendations or reports are used, and where submissions are made, in coming to the decision?
• Seven, how does the decision-maker deal with instances where confidential information has been used?
• Eight, is the statement the decision-maker prepared an adequate statement?
Introduction – Freedom of Information
The Freedom of Information Act 1982 ('FOI Act') was the subject of report by two inter-departmental committees and by the Senate Standing Committee on Constitutional and Legal Affairs in 1979, was a focus of vigorous public debate, and was enacted in 1982.
Prior to the commencement of the FOI Act, access to information held by the Commonwealth Government or its agencies was, generally speaking, a matter of discretion. It would appear that in many areas the norm was for people to be refused access. The FOI Act was a response to that situation.
This section will introduce you to Commonwealth Freedom of Information obligations which allow a person access to government documents. It also requires that government agencies publish information about their operations and powers as they affect members of the public. They are also required to make public their manuals and other documents used in making decisions and recommendations affecting the public. Further, unless a document comes within an excepted or exempted category under some legislation, agencies must permit access to documents in their possession.
Firstly, the Freedom of Information Act 1982 (Cth) (“the Act”) will be evaluated at the practical level on whether applicants in fact do obtain access to the documents they request. Secondly, the Act will be assessed on whether it achieves its stated objectives or how functional it really is.
We will initially examine the objectives of the Act in order to provide perspective. Next, we will examine the limitations which impinge on access. These will be found in the definitions of key terms, exemption provisions, diversion of resources provisions and the provisions which provide agency discretion.
We will also identify structural and cultural obstacles to access. As such, we will also examine the complex application procedures; the costly and lack of quality control procedures and the endemic culture of secrecy. With this background, we will examine recent case law, statistical analysis and reform proposals.
Objectives of Freedom of Information (FOI)
The objectives of FOI are to provide an understanding of key concepts and issues aimed at expanding citizens’ rights in accessing government information through:
· The imposition of a duty on government agencies to publish or make available, certain relevant information about the operations of departments and public authorities;
· the creation of a general right of access to agency-held documents; and
· the ability of a person’s right to annotate or amend personal records relating to that person, which are held by government agencies.
Arnold v Queensland (1987) 13 ALD 195
Searle Australia v Public Interest Advocacy Centre (1992) 36 FCR 111
News Corp, News Corporation v National Companies and Securities Commission (1984) 6 ALD 83
Bodies Covered by the Act
An agency is defined (Freedom of Information (Miscellaneous Provisions) Regulations 1982 (Cth), Schedule 2; and Re Brennan and Australian Capital Territory Law Society (1984) 6 ALD 428) to mean a department or prescribed authority. A department is further defined and embraces all the Public Service departments except those concerned with the administration of the Parliament. Whereas the concept of prescribed authority is more complicated and has four major elements, as follows:
· A body is a prescribed authority if it is an un-incorporated body, established for a public purpose pursuant to an Act. However, certain bodies which would fall within the definitions are specifically excluded (Sch 2 Pt 1).
· A prescribed authority may be a body established by the Governor General, a Minister or a government controlled body.
· A person is a prescribed authority if they hold or perform duties of an office established by an enactment. Certain such persons are specifically excluded pursuant to Sch 2 Pt 1 of the Act.
· A person is a prescribed authority if they hold or perform the duties of a Governor General or ministerial appointment declared by the regulations to be a prescribed authority.
Documents Exempt from Access
The Act exempts certain types of documents from access. Sections 33 – 47 cover most of these exemptions.
Statement of Reasons
Reverse FOI
A Right to Access
Obtaining Access
Refusal of Access
Rights of Appeal
Recent Case Law
*Shergold v Tanner (2002) 76 ALJR 808
Secretary, Department of Workplace Relations & Small Business v Staff Developments & Training Centre Pty Ltd (2002) 76 ALJR 808
*Michael McKinnon v Secretary, Department of Treasury [2006] HCA 45
FOI Access Requests
2002-03 / 2003-04 / 2004-05Requests / 41,481 / 42,627 / 39,265
Between 1 December 1982 (the date of commencement of the FOI Act) and 30June2005, Commonwealth agencies received a total of 724,650 access requests. Chart 1 shows the total number of access requests made for each year since the commencement of the FOIAct. It should be noted that in 1982-83 the FOIAct operated for seven months only.
Details of requests received
Centrelink, the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and the Department of Veterans' Affairs (DVA) continue to receive the majority of requests. Commonly, requests made to these agencies are from clients seeking access to documents containing their own personal information. Chart 3 shows these agencies' share of the total number of requests received by all agencies this year.
Previous Major Reviews of the Freedom of Information Act 1982
ALRC Report No 77/ARC Report No 40—December 1995