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Friday, August 24, 2012

FOI review delay-what's fair? (See the update- this should have been headed "Here come the lawyers")

I haven't seen the text of the speech to be given today to the Australian Corporate Lawyers Association conference in Canberra by the highly respected Tom Brennan but as reported in The Australian (paywall) he seems to be suggesting that the substantial backlog in review applications at the Office of Australian Information Commissioner may raise issues about fairness:
"(Mr Brennan) believes the Information Commission's appeals function "over its first 19 months has fallen well short of the standard required" under the new laws. "Whatever the causes of the delays of that kind, their existence is incompatible with the object of the FOI Act"....
"The fact that delays of this magnitude or greater appear to be entrenched and structural raises the real risk that a court will not be satisfied the Information Commissioner review, or the Administrative Appeals Tribunal review which can only be accessed following the completion of an Information Commissioner review, provides a convenient or satisfactory remedy."
See this post back in May where the backlog and causes were discussed including the demand and resource issues not entirely within the control of the office. In the briefist of chats with Freedom of Information Commissioner Dr James Popple at the Solomon Lecture in Sydney on Monday he said that new processes had helped reduce the backlog and disposition time for review from those high May levels-but that was all we had time for.

As to what level of delay might raise a possible fairness challenge, Mr Brennan has no doubt dusted off  NAIS v Minister for Immigration and Multicultural and Indigenous Affairs, [2005] HCA 77 summarised here on Findlaw. There may be other relevant authorities and Brennan may have other arguments.

In NAIS the High Court found that the "extraordinary delay" by the Refugee Review Tribunal in dealing with an application made in June 1997 by decision handed down in January 2003 was so substantial as to amount to a breach of procedural fairness. 

Lack of speedy resolution has also been a cause of grumbling in NSW, with some suggestions that 9-12 months is not uncommon. These statistics don't refer to time taken.

Update: the text of the speech has been posted on the ACLA website and is here

Brennan covers broader territory than The Australian considered newsworthy in effect challenging the model of the merits review function conferred on and exercised by the OAIC on a number of grounds, not just delay.  It sounds like the lawyer cavalry coming, arguing the proposition that the old system of merits review by the AAT ticks more legal boxes than OAIC review where lawyers play a smaller role.  He argues the performance of merits review functions under the new FOI requires urgent review. Points, apart from delay, include
  • that the Commissioner’s guidelines function and policy advisory role are incompatible with the merits review function,
  • that the Commissioner's general principle to conclude a matter without a hearing "is quite extraordinary conduct of an independent merits review entity", and
  • that we may soon see some applicants seek to bypass the OAIC by going to the courts for orders "in the nature of mandamus, or otherwise by way of judicial review to directly review decisions of respondent agencies."
It's weighty stuff that deserves discussion and debate, so a bit churlish to point out that the Australian Law Reform Commission Open Government Report cited on several occasions to support his point was dated 1995 and released in 1996 not 2006 as referred to at the bottom of page 4.

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