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Australian Information Commissioner ordered by Court to remake review decision

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The Information Commissioner’s failure to take into account relevant factors and exercise its discretion was an error of law.

Background

The Australian Information Commissioner is the head of the Office of the Australian Information Commissioner, an independent Australian Government agency established under the Australian Information Commissioner Act 2010. One of its primary functions is oversight of the operation of the Freedom of Information Act 1982.

The Australian Human Rights Commission (AHRC) is a statutory body inter alia responsible for investigating alleged infringements of Australia’s anti-discrimination legislation.

The applicants were Jackson Powell and Calum Thwaites, two former students of the Queensland University of Technology who were the subject of complaints over some Facebook posts made by Aboriginal woman Cindy Prior, which ended up being dismissed by the Federal Circuit Court. Prior to those court proceedings, the AHRC controversially handled the complaints.

The facts

On 1 August 2016 the applicants through their senior counsel Tony Morris QC made a request to the AHRC for eight categories of documents relating to complaints it had handled. The initial response from the AHRC indicated that the officer authorised to determine the request intended to refuse access to documents under s.24AA of the Freedom of Information Act 1982 (Cth) in five of the nominated categories because the work involved in processing the request in its then form would substantially and unreasonably divert the resources of the AHRC from its other operations due to the scope of the request. This led to correspondence between the applicants’ senior counsel and the AHRC with a view to narrowing the scope of the applicants’ requests.

By 30 August 2016 the AHRC had released to the applicants documents within three of the eight categories requested. but refused access to the remaining categories of documents.

The relevant categories of documents subject to the refusal decision were:

 

(2) Documents recording each instance on which the AHRC has, in the case of a respondent other than an employee respondent [as defined in the applicants’ request] or a wayward respondent, [as defined in the applicants’ request] either:

given the respondent no opportunity to respond to a complaint (other than a decidedly unmeritorious complaint [as defined in the applicants’ request]); or

allowed to the respondent less than 21 days to respond to a complaint (other than a decidedly unmeritorious complaint).

(3) In respect of each instance mentioned in paragraph (2), documents explaining, recording, reflecting or discussing the reasons why the AHRC either (as the case may be):

gave the respondent no opportunity to respond to the complaint; or

allowed to the respondent less than 21 days to respond to the complaint.

(5) Documents recording each instance on which the AHRC has, in the case of a respondent other than an employee respondent or a wayward respondent, and in the case of a complaint other than a decidedly unmeritorious complaint:

1. failed either to inform the respondent, or to ensure that the respondent was informed by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the complaint against the respondent; or

2. failed either to notify the respondent, or to ensure that the respondent was notified by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the conciliation conference; or

3. first informed the respondent of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to a conciliation conference in respect of the complaint against the respondent; or

4. first notified the respondent of a conciliation conference in respect of a complaint against the respondent, or caused or allowed the respondent to be first so notified, less than 21 days prior to the conciliation conference.

(6) In respect of each instance mentioned in paragraph (5), documents explaining, recording, reflecting or discussing the reasons why the AHRC either (as the case may be):

1. failed either to inform the respondent, or to ensure that the respondent was informed by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the complaint against the respondent; or

2. failed either to notify the respondent, or to ensure that the respondent was notified by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the conciliation conference; or

3. first informed the respondent of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to a conciliation conference in respect of the complaint against the respondent; or

4. first notified the respondent of a conciliation conference in respect of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to the conciliation conference.

(8) Documents illustrating, by comparison or contrast with the complaint lodged by Ms Prior with the AHRC on or about 27 May 2014, the parameters of what is meant by the expression, “complaints … that require a response to long and detailed allegations”.

 

On 30 August 2016 the applicants applied to the Office of the Australian Information Commissioner for a review of the AHRC’s decision to refuse access to the five categories of documents the subject of the AHRC’s refusal.

On 19 October 2016 the AHRC wrote to Ms Nicolaou, the delegate handling the review for the Australian Information Commissioner expressing its view that, even if the scope was narrowed, the applicants’ request would still substantially divert the resources of the AHRC. This view was not communicated to the applicants at the time.

On both 7 December and 9 December 2016, the applicants emailed Ms Nicolaou enquiring as to the progress of the review. In response, on 13 December 2016 Ms Nicolaou apologised for the delay and confirmed the matter had been allocated to Ms Raewyn Harlock, who was described as the “case review officer”.

On 5 January 2017 Ms Harlock emailed the applicants informing them that she had prepared a “preliminary view” after reviewing the application and the AHRC’s submissions.

On 17 January 2017 Ms Harlock wrote to the applicants informing them that, before providing her “preliminary view” to them, the Information Commissioner had asked the AHRC for further information about the electronic document management system and its reporting capacity. She also informed the applicants that once the information was in her possession the Information Commissioner would consider the position and advise the applicants accordingly.

On 18 January 2017 the AHRC responded to Ms Harlock’s queries regarding its electronic document management system. The applicants were not party to the communications between the AHRC and Ms Harlock, and copies of that correspondence were not at that time provided to them.

On 20 January 2017 Ms Harlock provided her “preliminary view” to the applicants. The view expressed was in the following terms:

“I have formed the preliminary view, as case officer in this matter, that the AHRC has no documents falling within the scope of your request. I therefore intend recommending to the Information Commissioner that the decision under review should be affirmed….

My preliminary view

Accordingly, it is my preliminary view that the AHRC does not hold the documents you seek and cannot produce them using a computer or other equipment ordinarily available for retrieving or collating stored information.

Next steps

In light of the above, can you please let me know in writing whether you wish to withdraw this application for Information Commissioner review by close of business on Friday 3 February 2017. If you wish to proceed with your application for Information Commissioner review, please provide submissions in response to the above by close of business on Friday 3 February 2017. If this matter proceeds to a decision by the Information Commissioner, a recommendation in line with this preliminary view will be provided to him.”

After submissions were made to Ms Harlock, further delay on her part, and significant correspondence exchanged between the parties, on 5 June 2017 a delegate for the Information Commissioner advised the applicants and the AHRC that a decision had been made to not continue to undertake the review before the Information Commissioner.

On 13 June 2017 the applicants sought a judicial review of this decision, seeking an order that the impugned decision be set aside and the Information Commissioner be directed to hear and determine the principal review that was not continued by the decision under review.

Relevant law

Section 24AA(1) of the Freedom of Information Act 1982 (Cth) provides that:

When does a practical refusal reason exist?            

(1)  For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:                    

(a)  the work involved in processing the request:                             

(i)  in the case of an agency–would substantially and unreasonably divert the resources of the agency from its other operations.                          

Section 54W(b) of the Freedom of Information Act 1982 (Cth) provides that:

Decision to review–discretion not to review                  

The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if:

(b) the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal.

Section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) provides that:

5 Applications for review of decisions

(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g) that the decision was induced or affected by fraud;

(h) that there was no evidence or other material to justify the making of the decision;

(j) that the decision was otherwise contrary to law.

(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a) taking an irrelevant consideration into account in the exercise of a power;

(b) failing to take a relevant consideration into account in the exercise of a power;

(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d) an exercise of a discretionary power in bad faith;

(e) an exercise of a personal discretionary power at the direction or behest of another person;

(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j) any other exercise of a power in a way that constitutes abuse of the power.

(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

 

Brennan CJ in Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 stated that:

“when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised”.

The Hardiman principle has been held to require that the “usual course” when an administrative decision is subjected to judicial review “is for a tribunal to submit to such order as the court may make” and that “other than in exceptional cases, a tribunal should not take an active role in judicial review proceedings challenging its decisions”.

Federal Circuit Court decision

The Applicants submitted that the Information Commissioner’s active participation in the proceedings was “plainly and grossly inappropriate”. However, due to the “exceptional” nature of the case (involving allegations of an abuse of power predicated on ceasing discomfiture, criticism or embarrassment on the part of the Office of the Information Commissioner), the lack of a contradictor (the AHRC refused to oppose the application for judicial review), and the Information Commissioner having a legitimate interest and being the natural contradictor, Judge Jarrett held that he should consider parts of the Information Commissioner’s submissions.

Commenting on the Information Commissioner‘s reasons for its decision, Judge Jarrett observed that:

“the reasons of the Information Commissioner’s delegate demonstrate that the only matter of any significance considered by him was the finding that he was satisfied that the interests of the administration of the FOI Act made it desirable that the review then under consideration be considered by the AAT. There appears to have been no separate consideration of the power not to continue the review then before the Information Commissioner, nor any reasons why that course was taken…

“In the uncontroversial factual circumstances just described, clear reasons for the decision to no longer continue the review could be expected. But there were none. All the statement of reasons suggests is that the requisite satisfaction was reached for the purposes of s.54W(b) and as a consequence – “Consequently” – the decision was made not to undertake the review.

Consequently, Judge Jarrett concluded that the decision was legally unreasonable and the decision maker failed to take into account relevant considerations.

However, Judge Jarrett disagreed with the applicants’ contention that the preliminary view expressed by Ms Harlock amounted to a denial of natural justice which further impugned the decision.

The result was that an order referring the matter to the decision maker for further consideration was made, in addition to orders that the Information Commissioner pays the costs of the applicants to be agreed or failing agreement to be later determined by the Court.

Conclusion

This case shows that an administrative decision of a Federal Government body to not make a decision or proceed with a review is itself a reviewable decision. The Information Commissioner’s decision to not proceed because it thought that the Administrative Appeals Tribunal (AAT) should instead determine the matter was held to be an error of law.

Perhaps above all else, this case demonstrates the flagrant and consistent incompetence of the public servants at the Office of the Information Commissioner. Not only were there many inexplicable and inexcusable delays, the decision to not proceed with the review was clearly wrong at law, and was another instance of bureaucratic ineptitude. Furthermore, like the AHRC, the Information Commissioner’s processes appear to be particularly unsound, with copies of submissions and correspondence not being shared with the applicants in a timely way and their matter being passed along the line to three separate case managers.

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