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Thursday, April 08, 2010

Ultimate exercise in futility

This action in the Administrative Appeals Tribunal by Garners Beach Habitat Action Group, a third party who objected to a submission made to the Department of the Environment, Water, Heritage and the Arts about a proposed development being released to the developer.

The decision-maker in the Department decided none of the exemptions in the FOI Act were applicable, and this decision was upheld on internal review. The third party elected not to appeal to the Tribunal at that point, preferring instead to complain to the Ombudsman. The appeal period in relation to the decision expired. The documents had now been released in their entirety. But the applicant decided to ask the Tribunal to rule on the question of whether the documents should have been released in any event. Senior Member McCabe accepted that the Tribunal had jurisdiction but dismissed the proceedings as frivolous under s 42B of the Administrative Appeals Tribunal Act 1975 on the basis there was no point persisting with the appeal because the documents had already been released. "As a practical matter, there is nothing left for the Tribunal to do....The decision to release the documents cannot be unmade in a practical sense." And then proceeded to explain why the third party's arguments against disclosure wouldn't have succeeded in any event.

The tax-payer was the one out of pocket here.

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