Lateness not a fatal flaw to NSWADT jurisdiction

The NSW Administrative Decisions Tribunal, in its Freedom of Information and privacy review jurisdictions at least, seems to spend an enormous amount of time on jurisdictional issues, suggesting the need for examination of the underlying legislation to cure defects that give rise to problems and uncertainty.

One of many such issues has been whether the Tribunal has powers to consider an application for review of a Freedom of Information application received later than 60 days after an internal review determination, or the completion of consideration of a complaint by the Ombudsman. While some decisions have taken the contrary position, the prevailing view has been that the provision in the FOI Act stipulating the 60 day deadline is absolute, and that a late application must fail on jurisdictional grounds.

The Appeal Panel, chaired by Tribunal President Judge O'Connor, has now decided this is wrong and that the Tribunal can consider a late application, but is only likely to exercise discretion to hear such a matter if there is a reasonable explanation for the applicant not acting within the already generous time allowed for review applications. The Appeal Panel acknowledges there is still doubt about the law, and that it would be far better if this was addressed by clear legislation, as is the case in Federal and Victorian law[61-62].

Bad luck for those who missed the boat previously, where being late in lodging an application with the Tribunal was held to be a fatal flaw. The Appeal Panel noted [27] the situation had worked unfairly against applicants in a number of instances.

And what ever happened to the statutory review of the Administrative Decisions Tribunal Act which the Act required to be tabled in Parliament in 2003 and which may have identified some of these problems and possible solutions? Or to the Government response to a Parliamentary Committee report on Tribunal jurisdiction released in November 2002? In the Tribunal's annual report last year President O'Connor expressed the hope both might appear before the end of 2007. Any sightings?