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Friday, October 31, 2008

Smoke still rising from the battle for Beacon Hill

The Save Beacon Hill High School Committee has long ago lost its eponymous battle, but the associated Freedom of Information skirmishes have continued, perhaps concluding with this decision by the NSW Administrative Decisions Tribunal to dismiss proceedings brought against Landcom.Three years after the original application and many slow steps in the process, Landcom released all remaining documents it said it could find about the sale of the school.The Tribunal rejected the Committee's attempt to keep the matter alive on the adequacy of search issue.

The decision highlights yet another problem about what can be done when this type of issue arises in the Tribunal, following the NSW Court of Appeal ruling that the Tribunal cannot go behind an agency's claims regarding what relevant documents are held.

The Administrative Decisions Tribunal Act sensibly provides for co-operation between the Tribunal and the Ombudsman on a range of matters and a memorandum of understanding between them (December 2006, pre-dating the Court of Appeal decision), specifically refers to referral by the Tribunal of a matter to the Ombudsman, even one outside Tribunal jurisdiction.The Committee sought referral in this case claiming it was not satisfied about the agency's steps to locate all relevant documents.

However Judicial Member Montgomery accepted arguments advanced on behalf of Landcom that the Tribunal's legislation limited the exercise of the discretion to refer to matters that came within its jurisdition. As the Court of Appeal had decided adequacy of search was outside jurisdiction, the Tribunal could not formally refer such a matter to the Ombudsman.

The President of the Tribunal remarked in a decision prior to the Court of Appeal ruling that it would be perverse if the Tribunal had to accept any agency claim about what documents were held, without powers to test or go behind such claims. He was right then, and the law should be amended to address the problem.This latest decision mitigates against sensible co-operation between two bodies with review powers, and further complicates matters for FOI users.It's another in a long list of necessary changes to the laws.

The deadline for submissions to the Ombudsman's review of the FOI Act was 31 October but I'm sure he is still open to suggestions.

Update:deadline extended to 14 November.

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