Administrative Law (Australia)

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AdministrativeLaw (Australia)

Comparisonand Contrast

Freedomof Information Act 1982 commonly referred to as FOI Act was enactedin 1982. Before the Act was enacted, accessing information that washeld by the Commonwealth Government or the agencies was an issue ofdiscretion1.This therefore means that in many areas access would not easily beguaranteed. The FOI Act was a response to the restriction of access.In discussing the Freedom of Act, essential issues are covered is theCommonwealth Freedom of Information obligation2.Through this obligation, one can access the various governmentdocuments. There is also a requirement that government agenciespublish information that concerns their operations as well as powersgiven that affect members of the public. Under FOI Act, they are alsorequired to make the manuals public and other documents need to beused in making decision and recommendations that affect the public.Therefore, according to this Act, a document has to be within theexcepted or exempted category as specified by some legislation forthe agencies to permit access to documents within their possession3.

Onthe other hand, the terms for Reasons for Decisions are defined underAAT Act in section 28. In this regard, the statement affirms that anindividual is entitled to apply to the AAT to review a decision andcan request for statement, which should be in writing. The statementhas to set out the findings on the material questions of fact. Thefacts have to refer to the evidence or other materials in which thefindings are based. Further, the reasons for decisions have to begiven. The decision maker is given 28 days to provide statement ofreasons. From the introduction, there is a clear difference in thetwo classes. While FOI allows for access of information freely asstipulated by legislation, Statement of Reasons outlines that one canget a reason for a decision or information though must give a noticeand wait for 28 days to get the reasons for the decision.

Exemptions

Eventhough in both classes, there is guarantee in accessing informationand review of decisions there is some level of restriction thatapplies4.In Reasons for Decisions, one is restricted to apply for statement ofreasons when it is deemed that the individual could comfortably applyfor it under the AAT Act. Additionally, one is also restricted whenthe decision had the statement of reasons with it. Further, if thedecision is part of the classes of decisions in Schedule 2 of theADJR Act, the person pursuing the review cannot apply for thestatement of reason5.On the other hand, in FOI, there are documents which individuals areexempted from accessing. The documents are covered in sections 33-47.

Objectives

BothFOI and Reasons for Decisions have objectives. First, the objectiveof FOI is to provide an understanding of the primary concepts andissues that increase the understanding of the rights of citizens inaccessing government information. While ensuring that the main goalis achieved, FOI requires that there be a requirement for thegovernment agencies to publish or make certain information relevantand available in regards to the operations of departments and publicauthorities. For individuals to access information, FOI requires thatthere exists an agency facilitating access of agency-held documents.Further, FOI allows individuals to amend their personal records,which are the government agencies. This is supported by differentcases including Arnold v Queensland (1987) 13 ALD 195, SearleAustralia v Public Interest Advocacy Centre (1992) 36 FCR 111 andNews Corp, News Corporation v National Companies and SecuritiesCommission (1984) 6 ALD 83 among others6.

Onthe other hand, Reasons of Decisions is enacted to achieve severalobjectives including reasons being necessary on two grounds. First, areason to a decision is given to ensure that parties can comprehendthe basis for their decision. Additionally, reason is also given toallow for any right of appeal to be carried out. Nonetheless, withinthe executive paradigms, there is no obligation hence no generalcommon law right to reasons. This means that any provisions forreasons have to be introduced using statutory provisions. In fact,there exist four sets of such provisions, and the two main onesinclude the JudicialReview Act 1977 andthe AATAct19757.Therefore, from the discussions, there is clarity on the objectivesof the two classes.

TheEffect of Freedom of Information and Reasons for Decisions onAustralian Administrative Law Structures

Thissection uses Freedom of Information and Reasons for Decisions todetermine whether Australian Administrative Law structures in 2016continue to reflect or have evolved upon, the values, ideas, andvision that underpins the New Administrative Law package.

Usually,administrative laws are meant to check the relationship that existsbetween a state and the people. The administrative laws bind therelationship between the government and those governed. Whileapplying both the classes (Freedom of Information and Reasons forDecisions), the regulations of the powers and procedures within theexecutive arm of the government is checked if it conforms with thenew administrative law package.

Throughthe Reasons for Decisions, the Australian Administrative Lawstructures continue to reflect on the vision, values, and ideas thatunderpin the New Administrative Law package. First, the concept ofReasons for Decisions ensures that there is accountability whenexercising executive powers. By ensuring accountability is achieved,the reasons for administrative decisions is established within theAustralian Administrative law structures. According to the concept of“reasons for administrative decisions”, it is a prerequisite thatadministrators provide the reasons for the decisions that they make.This is because there is no duty at common law for administrators toprovide reasons for their decisions8.Normally, it is difficult for one to get an action for judicialreview if the applicant cannot tell the manner in which the decisionwas reached and the purpose of reaching the decision. Further, thecourts are also required to provide the reasons for their decisions.Provision of the reasons by the courts boosts the accountabilitywithin the legal system. By providing the reasons, the individualparties can tell the grounds under which a decision is made. Further,the administrative law package gives individuals the power to appeal.Interestingly, this power cannot be exercised when reasons by thecourts are not given. This, therefore, would amount to a violation offundamental human right, the right to information.

Asmuch as accountability is required within the executive realms, thereis mandatory requirement established by common law that theexecutives give a reason for their decisions9.This means that for the executive to be coerced to give reasons,there need to be statutory provisions in place. Notably, theAustralian administrative law has ensured that it reflects the valuesand vision of the new administrative package through different acts10.Through the reasons for decisions, the real sense of administrativelaw is achieved. The citizens are covered and have a remedy againsttheir abuse.

Thesecond part of the discussion concerns the freedom of information.According to this concept, the public has a right to access thegovernment-held information. Numerous items and legislations existthat have been made in regards to freedom of information. The changesensure that Australian Administrative Law structures in 2016 continueto reflect, or have evolved upon, the values, ideas, and vision thatunderpin the New Administrative Law package. First, there is the newrole introduced for the Information Commissioner. To ensure that theright to information is implemented, the Queensland Government hassetup regulatory monitoring and support by the informationcommissioner11.To ensure that the changes made reflect the vision of newadministrative law, the roles of the information officer have beenexpanded to include the functions of protecting the information. Theofficers are to help promote understanding as well as compliance withprivacy and RTI principles12.Through the RTI legislations, the Information Commissioner has a dutyto provide report cards that reflect the performance of agencies inregards to RTI principles13.Having the monitoring function in place, the freedom of informationis supported. Further, there have been established compliancestandards for the public agencies to ensure smooth operations.

Onthe other hand, it is arguable that Freedom of Information ascaptured in Australian Administrative Law structures in 2016 does notreflect on the values and vision that underpins the NewAdministrative Law Package. According to the Report that was made bythe standing committee of the Senate on constitutional and legalaffairs, there were three main reasons for increasing access togovernment information14.Out of the three objectives, only one has been successful, and thisis the objective to achieve information privacy. Even though theAdministrative Laws structures in 2016 has one of its tenets asFreedom of Information, it is evident that accessing materials thathighlight issues regarding current policy debate continue to be verydifficult to access. Some of the reasons for the difficulty inaccessibility is that the scope is too wide for the various exemptionprovisions, cost barriers also exist and the review process is slowand in most cases fail to provide cost-effective resolutions for thecomplaints15.

Accordingto the New Administrative Law Package, information needs to beavailable without even request. However, in Freedom of Information,as captured in Australian Administrative Law structures in 2016,individuals have to initiate the access of information. This isagainst the requirements and the essence of the Act that required thegovernment and different agencies to adopt a push model, which makeharnessing of information easy without even requesting16.

Theother limitation that exists is that there are no incentives andprotections exist to facilitate timely access to information asrequired by the Act. Notably, the FOI officers only get protectionfrom civil and criminal liability for the disclosure if they believethat disclosure is needed under the Act17.This means that in cases where they provide informal disclosures,they become vulnerable. Additionally, if the FOI Act is meant toensure that information is free and easily accessible, then it needsto reinforce measures for the officers who fail to facilitate theaccess of information. Notably, the FOI Act fails to attach anyconsequence to those who fail to comply with the publicationrequirements. One such requirement is timely disclosure ofinformation.

Eventhough there has been a need to have free information as legislatedby FOI Act, several problems have arisen hence making the Act notreflect the vision and spirit of the New Administrative Laws. First,there has been an issue with procedural aspects of the Act, whichentails charges for access and delays in making decisions as well asproviding the access. Having the requests to get information takesseveral months or years. The longer duration goes against the spiritof freedom of information as stipulated in the new AdministrativeLaws in Australia. At times, the official documents, which in mostcases are more useful than the personal documents, take up to 3months to process18.This is against the spirit of free information, which is required totake approximately 30 days as per the statutes19. Having the delays in system frustrate the use of the Act fordemocratic reasons. In fact, in several instances, the information isreleased at a time when the information about them is no longerimportant20.There have been charges that are imposed and even with the charges inplace, the agencies are not moved to have the efficient handling ofinformation. The methods that are used in calculating the chargesthemselves are criticized as they do not provide the incentive toensure efficient record keeping. A case of delay in accessinginformation has been documented in the decision made by the HighCourtin McKinnonv Treasury21.Through this case, the court was able to find out that there wereloopholes in accessing documents, an aspect that raised issuesconcerning the decision-making process in governments.

Fromthe discussions, it emerges that there is a delicate balance as faras the two classes are concerned when reflecting the newadministrative laws in Australia. It can be concluded that on onehand, Australian Administrative Law structures in 2016 continue toreflect, or have evolved upon, the values, ideas, and vision thatunderpinsthe New Administrative Law package while on the other hand it doesnot reflect the visions that underpins the Australian AdministrativeLaw structures in 2016.

1 Freedom of Information Independent Review Panel (Qld.), and David Solomon. The Right to Information: Reviewing Queensland`s Freedom of Information Act. Department of Justice and Attorney-General, 2008.

2 Bayne, Peter. &quotFreedom of Information.&quot Legal Service Bull. 9 (1984): 121.

3 Roberts, Alasdair. &quotStructural pluralism and the right to information.&quot The University of Toronto Law Journal 51, no. 3 (2001): 243-271

4 Law, Administrative Procedure, W. L. O. Property II, Public Law, and Tort Law Criminal. &quotPublic Law.&quot (1993): 88.

5 Crock, Mary Elizabeth. &quotJudicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?.&quot Sydney Law Review 18, no. 3 (1996): 267-303.

6 Groves, Matthew, and H. P. Lee. Australian administrative law: Fundamentals, principles and doctrines. Cambridge University Press, 2007.

7 The Judicial Review Act 1977 and the AAT Act 1975.

8 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).

9 Public Service Board v Osmond (1986) 159 CLR 656.

10 the Judicial Review Act 1977 and the AAT Act 1975.

11 Information Privacy Act 2009

12 Breit, Rhonda A., and Richard L. Fitzgerald. &quotChanges in Media Reporting after RTI Laws in Queensland.&quot In CPRafrica 2012/CPRsouth7 Conference, Port Louis, Mauritius. 2012.

13 Kinross, Julie. &quotApplied Corporate Governance: The Queensland Right to Information Reforms.&quot Keeping Good Companies 62, no. 4 (2010): 205.

14 Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978 and Aspects of the Archives Bill 1978, Australian Government Publishing Service, Canberra, 1979, [3.3].

15 M Paterson, “Transparency in the Modern State: happy birthday FOI or Commiserations?” (2004) 29 Alternative Law Journal 10.

16 Xiao, Weibing. &quotChina`s limited push model of FOI legislation.&quot Government Information Quarterly 27, no. 4 (2010): 346-351.

17 FOI Act, ss 91 and 92.

18 Moss Report 89.

19 Ibid

20 Australian Law Reform Commission, Open Government: A Review of the Federal Freedom of Information Act 1982, Report No 77, Australian Law Reform Commission, Canberra, 1995 at [7.12]. The link between time limits and the effectiveness of the Act was supported in submissions made to the Senate Committee enquiry by Electronic Frontiers Australia and the Communications Law Centre: see Senate Legal and Constitutional Committee, Inquiry into the Freedom of Information Amendment (Open Government) Bill 2000, Senate Printing Unit, Canberra, 2001, at [3.120].

21 McKinnon v Secretary, Department of Treasury [2006] HCA 45 (2006) 229 ALR 187.

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