ADT FOI decision: long lost policy comes to light

What’s “government policy” is always one of those questions that hang in the air – is it what government says or does, does it need to be written down, who needs to endorse it?

The NSW Administrative Decisions Tribunal Act (Section 64) says that in reviewing decisions the ADT must “give effect to any relevant Government policy in force at the time” the decision was made “except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case”.

For this purpose the Act says that Government policy means a policy adopted by the Cabinet, Premier or any other Minister, and in addition the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned, subject to the qualifications above.

In Cianfrano v Premier’s Department (2006) NSWADTAP 48 the Appeal Panel considered an appeal from an original decision that the Tribunal had erred in law in failing to give effect to a Government policy concerning the way in which an agency should deal with a matter where “substantial and unreasonable diversion of resources” may be involved.

As it turned out, you couldn’t blame the Tribunal.

The policy involved was contained in a 1991 circular to ministers from the then Premier Nick Greiner.

Apparently no one currenlty working in the Premier’s Department (the agency dealing with this application, but also the agency responsible for the implementation of the FOI Act) knew about the policy. No one told the Crown Solicitor’s Office, who represented the Department before the Tribunal. No one told the Tribunal.

In our blog on the determination in May, we commented that this circular hadn’t been mentioned in the original decision, and wondered if a fifteen year old direction by a government long since departed from office was still “policy” that bound the current government.

Before the Appeal Panel, the FOI applicant raised this failure to give effect to government policy, the Premier’s Department accepted that it was Government policy, and the Appeal Panel found that therefore, an error of law had occurred. The Tribunal was bound by Section 64 to apply the policy. The Appeal Panel has referred the matter back to the Tribunal for a further hearing.

The substantive issue was the failure by the Premier’s Department to negotiate with an applicant for a longer period of time when dealing with an application that would involve substantial and unreasonable diversion of resources before refusing to deal with the application.

Now that this policy has been “discovered” it raises a question about a whole series of earlier ADT decisions on this issue where this 1991 statement of Government policy was not raised or considered.

The broader concern is the apparent lack of corporate memory in the Premier’s Department about what is Government FOI policy. The circular referred to appears to have dropped out of sight pretty quickly as it didn’t get a mention in 1994 in the Procedures Manual that provides guidance to government agencies concerning the administration of the Act. That Manual in any event has now been “under review” since 1999.

The Premier told a Parliamentary Budget Committee recently that an updated version will be published by the end of the year.

No doubt it will clear things up for those who work in this field and comprehensively set out “policy” that must be applied.