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Monday, October 11, 2010

ASIC FOI law epic

The decision by Deputy President Forgie of the Administrative Appeals Tribunal in Mathews and Australian Securities and Investments Commission (and ors) [2010] AATA 649 involved a Commonwealth Freedom of Information application submitted seven years ago, was handed down 19 months after the matter was heard in January 2009, runs to 486 paragraphs and includes 402 footnotes.

I won't even try to summarise key points, although three procedural issues of interest are:
  • an applicant for review cannot withdraw or discontinue part of an application before the Tribunal and either proceeds with or discontinues the application[152];
  • a party joined must be joined without reservation, not  simply to part of the proceedings [[170]; and
  • a party is not under any obligation to refrain from subsequently using material that has been given in evidence in an AAT hearing, or lodged in the Tribunal (whether or not it was admitted in evidence at the hearing) and received in the course of the hearing, unless confidentiality is protected by an order under s 35 of the AAT Act, or by a statutory provision applicable to it, or was produced by compulsion under a summons under s 40(1A) of the AAT Act, and has not been admitted in evidence [178].
While Mr Mathews had a win on some documents in dispute, he wasn't granted immediate access all these years later, as ASIC is still to attend to another question - how much by way of charges are to be paid first.

As is usual in her decisions, Deputy President Forgie has undertaken meticulous analysis of relevant exemption provisions, and the applicable case law, even extending to publication of a table of where to find the discussion. Enjoy, well, at least mark this down as a quick reference to the law as it stands.
Discussion of law
Annexure I
Internal working documents
Annexure J
37(1)(b) and 37(2)(b)
Enforcement of the law
Annexure K
Substantial adverse effect on proper and efficient conduct of operations of agency
Annexure L1
Legal professional privilege
(Description of documents)
Annexure L2
42 (including deletion of exempt matter under s 22 at [351]-[364]
Legal professional privilege
(Consideration of exemption)
Annexure M
Breach of confidence

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