Freedom of Information and Public Access

This assignment delves into a scenario involving a student named Jasmine who seeks access to a government minister's diary through a Freedom of Information (FOI) request. The analysis examines the legal and ethical considerations surrounding this request, referencing relevant case laws like Swanton v Military Rehab Compensation Commission and Mark Dreyfud v Attorney General. It discusses the potential conflicts between public interest, privacy concerns, and the responsibilities of government agencies under FOI legislation. The assignment also explores the complexities of FOI law, referencing the Review of the Freedom of Information Act 1982 and the Australian Information Commissioner Act 2010, highlighting issues such as administrative burden on agencies and the balance between public access and information protection.

Administrative Law
CASE STUDY
NAME:
1. NON JUDICIAL REVIEW
Sydney’s’ WSU falls under the national and federal laws. The Federal Government
plans to increase university fees starting 2017 affects current and future students with
progressive fees increases1. If allowed, the increase is set to go as high as $3,600. The
scraping of the 2014 deregulation policy paved the way for senate to approve the
ministry’s regulation of the fees. The regulation comes with reduced funding and cuts
on subsidized college fees for New Zealanders. Jasmine, a WSU student faces
opposition as she tries to oppose the laws on social grounds.
The use of democratic constitutionalism in making judgements is crucial because it
caters for people’s constitutional rights. In opposing the legal system, Jasmine
represents a student with rights protected by the constitutional provisions. The
Australian administrative law advocates for fairness and justice through a quick
review process.2 Jasmine applied for a review using the FOI, which allows the public
to access government agencies and document3. This also allows Jasmine to apply for a
review on grounds that the decisions made by the minister was not a personal one.
The law provisions state that Jasmine could apply for the review in writing within 30
days4. This gives her access to certain documents through internal reviews but if the
minister fails to give the requested documents, she can use an external review through
the Australian commissioner. This review is free but it may also require her to pay for
the procession of certain documents. This is not a complaint but rather a pointer to
the fact that the ministry made a wrong decision about the fees increase and financial
cuts.
The minister is wrong in denying Jasmine access to documents. He says it would take
600 hours, which is an equivalent of 25 days. This gives Jasmine the right to pursue
1 Doyle, Julie, University Funding: Student Fees to Increase and a Senate
Crossbench to Appease, (at 3 August, 2017), ABC News
2 Administrative Appeals Tribunal
3 Freedom of Information Act 1982, Federal Register of Legislation. Act 3.
4 Australian Government Office of the Australian Information Commissioner, FOI
Review Process.

30 September 2017
further review from the Australian commissioners for denied access. She is at liberty
to request for public documents leading to the Higher Education reform Package. This
was a national law affecting generations to come. Proper scrutiny is necessary in order
to assure and gain public confidence. That is why the Act gives a period of 30 days.
The Australian Government Guide to Regulation highlights the need to make policies
as a last resort and not as a default with consideration for those affected by it5.
He also cites privacy in the content recorded in the diary yet the decision made was
public. The Act determines that the review cannot be availed if the decision made by
the public office was personal6. He tries to cover up his failures by citing long hours
required for retrieval of information and inconveniences to colleagues. This is a lame
excuse to avoid transparency and public involvement in legislation. He states that
these are deliberative processes. However, the 2001 FOI ACT provides for exemption
on certain documents like advice and opinion and that such ‘exemptions are not
mandatory.7
The challenge on the Minister’s decisions is on a number of grounds. He fails to allow
Jasmine access to information. Secondly, he loses public confidence causing Jasmine
to want to challenge his position. There is conflict of interest when the Minister
informs parliament that Jasmine was a socialist and an activist, which is against the
Australian Public Service (APS) Code of Conduct.8 He gives wrong information
about the deliberative provisions of the FOI Act causing doubts about the good will
intention of the government agency.
The 1976 Administrative Appeals Tribunal (AAT) advocates for appeals on decisions
such as freedom of Information9. It reviews decisions made by state and non-state
bodies. It looks at Ministers in Government Australian agencies and department. The
Ministry of Education is a government institution responsible for administering
education matters to the Australian citizens. Its jurisdiction covers laws made by the
national government, state, territorial and local bodies. The reviewable decisions in
5 Australian Government, Cutting Red Tape, The Australian Guide to Regulation,
31-
6 Australian Government Office of the Australian Information Commissioner,
7 FOI Act, Clause 6
8 Australian Government, Public Service Commission, Section 5: Conflict of I
9 Administrative Appeals Tribunal, IFO

30 September 2017
this case include the revocation of an approval for the increment of fees. Its powers
include affirming a decision, varying it, setting it aside and giving a decision for the
Ministry to reconsider its position.
The procedure for this review ensures that the process is quick, accessible and
promotes public interest and confidence. It gives Jasmine up to 28 days after receiving
the ministry’s decision10. The time limit varies and it gives Jasmine time to present her
case. She is to fill out a form or send an email. In her case, she is making an appeal
against an Organization and not an individual. The form shows her name, contacts,
date of the decision made and reasons why she feels that the wrong decisions was
incorrect. She is also at liberty to deliver the application in person.
In this case, there is no requirement for fees payment because this is an FOI
decision11. The Tribunal is to act upon a document that has non-fees attached to it in
the initial application. However, Jasmine qualifies for a reduced fee of $100 in cases
where payment would be necessary. This is the case where taxation matters come into
play and this would apply if she receives legal assistance for the application and if she
receives youth allowance, ABSTUDY, Austudy or is under 18 years. In the High
Court Case between Oslad and Secretary to The Department of Justice the court
acknowledges provisions for ‘powerful reasons’ that allow for public interest in
disclosure.12
The Tribunal is independent of any influence from individuals and parties
concerned13. Presenting the application does not imply that the laws stop taking
effect. The fee increase shall continue as the tribunal makes the hearing. However,
Jasmine may also make a request to suspend the decision made by the ministry by
filling an order form. This is not good for the minister because he fails to disclose
information for the interest of the public. The deliberative process involves all
processes taken by the Ministry in making critical regulations about the people and it
must show consultations with stakeholders outside the agency.
10 Administrative Appeals Tribunal, Time limits
11 Administrative Appeals Tribunal, ‘Fees’
12 Osland v Secretary to the Department of Justice [2010] HCA 24
13 Sing (Migration) [2017] AATA 850 (16 June 2017)

30 September 2017
The politicization of an important process is illegal and it impedes participation and
engagement of the public, which leads to the violation of the information laws. 14The
Minister for education informs parliament that he denies Jasmine access to the
information on grounds that she is an activist or socialist. However, constitution
allows such human rights supporters to access information under other FOI
jurisdictions. These include the upgraded state laws like the Ombudsman Act, which
take effect in 201815. This office gives Jasmine a chance to apply for internal review
as well as seek assistance from the ACT community.
The law also makes provision for Jasmine to use online means to launch a complaint
but the Minister misleads her that it is unsafe. This is similar to the 2017 case between
Farrell and the Prime Minister in which the agency stated section 24 (24AA and
24AAb) in refusal to allow access16. In relaying judgement, the judge did not find any
practical reasons for the Minister to refuse access. The explanation that Jasmine is an
activist who is out to embarrass the government is ill founded and does not make
sense.
The fact that Jasmine cites financial challenges as hindrances to travelling to Canberra
is an indication of her incapacities. As a needy student, she has valid sentiments
because the legislation recommends support for needy students. The fee increment
policy advocates for grants for needy students from poor backgrounds17. Jasmine,
students from the disadvantaged communities and minorities stand a chance, as the
law may not apply to their case. However, this is just speculation because the case is
not clear about Jasmine’s background nor sincere interests. As a result, it leaves room
for judicial review, which supports the capacity of the judicial institutions in ruling in
favour of the agency and legislature.
14 Hawke Report, Freedom of Information Laws Labeled, ( 2 August 2013)
<http://webarchive.nla.gov.au/gov/20130904085158/http://
www.attorneygeneral.gov.au/Mediareleases/Pages/2013/Third%20quarter/
2August2013-Hawkereportonfreedomof-informationlawstabled.aspx>
15 Freedom of Information Act, 2016
16 Paul Farrell and Prime Minister of Australia ( Freedom of Information) [2017]
AICmr 44
17 Above n, 1

30 September 2017
JUDICIAL REVIEW
The independence of the judicial institution (legislature and executive), courts and
tribunals as well as agencies have their own law making and enforcement powers.18 It
is arguable that the FOI Act protects agencies from unreasonable disclosure of
information. Although the Australian system does not have a total separation of
powers, there is no reason for the court to worry about what the executive or the
legislature does in parliaments because it makes laws while the judiciary has a role to
interpret it. This gives the executive arm the independence of implementing and
supporting the drafting process. 19
Judicial review arguments may point that the diary is among other documents, which
store information and Jasmine can access these documents in accordance with the
state and territorial laws.20 The Minister may cite the availability of online forms and
portals, which have the necessary information. If Jasmine files for a review at the
Information Commissioner and fails, she has another chance to appeal at the AAT.
This shows the ability of the institutions to address the grievances that she may have.
Instead of rushing to expose the government, it is advisable to seek redress with the
required institutions.
The autonomy given to the courts points gives the freedom from interference of non-
judicial actors like Jasmine21. The constitution prevents her from interfering and
18 Law Council of Australia, Minister comments attacking independence of tribunal
were unfortunate, should not be repeated, ( 17 May 2017)
<https://www.lawcouncil.asn.au/media/media-releases/minister-s-comments-
attacking-independence-of-tribunal-were-unfortunate--should-not-be-repeated>
19 Pozen David, Self-Help and the separation of powers, ( 26 September 2017), Yale
Journal <https://www.lawcouncil.asn.au/media/media-releases/minister-s-
comments-attacking-independence-of-tribunal-were-unfortunate--should-not-be-
repeated>
20 Australian Constitution, State and Territory Government, s 51
21 The Commonwealth of Australia Act, 1900, Ch. 111

30 September 2017
provides the Australian Information Commissioner Act of 2010 to supports the FOI
Act.22Its Privacy Act section advocates for the regulation of individual and private
information of identifiable persons such as the Minister. He is entitled to private data
because the information is in a diary, which is a personal item. The ministry is entitled
to this privacy for effective processes therefore Jasmine needs to give them a benefit
of a doubt.
The fact that the Minister is adamant to share information with Jasmine on phones
shows that he values privacy as a person. The Office of the Australian Information
Commissioner highlights some of the notifiable data breaches. Among these is the
2017 APS Privacy Governance Code, which protects public data for better
governance and trust. 23This code falls under the 1988 Privacy Act and supports the
APP, which has provision for private management planning, appointment of a privacy
officer and enhanced internal privacy. 24The Privacy Impact Assessment Guide in this
legislation gives the Minister of Education guides on how to improve the public
confidence of the agency through privacy.
In the process of carrying out duties, agency leaders have to put in place mechanisms
that reduce risks. PGPA Section 16 identifies control of conflict of interests, which
includes restricted information.25 This code protects the agency from exploitation
encountered in the course of carrying out their duties. If sharing the facts is risky, the
Minister has a duty to withhold private data. It prevents unauthorized access but it
also safeguards policy information from insincere groups. Adherence to the principle
prevents inconsistencies in statutory interpretation and legal application in ad
hominem or Prima facie26.
The Minister is a government agent with an obligation to make proper judgements
about lobbyists who have a hidden agenda. Jasmine is not a registered activists but a
student and the Minister needs to represent the government in accordance with the
Lobbying Code, which warns SES employees from relaying information on official
22 Australian Information Commissioner Act, 2010.
23 APS Privacy Governance Code, 2017
24 Australian Privacy Principle APP 1.2
25 Public Governance, Performance and Accountability Act, 2013, 29
26 Gerangelos, Peter, The Separation of Powers and Legislative Interference in
Pending Cases, Sydney Law Review, Vol 30:61, p 62
<https://sydney.edu.au/law/slr/slr30_1/Gerangelos.pdf>

30 September 2017
engagements.27 The code supports the privacy policy for commissioners under the
Australian Information Commissioner (AIC) and secure management of personal
data. 28The Judicial review highlights the parallel powers while giving recognition to
the civil law.
The role of the Ministry is to advance public policy and not personal gain. Jasmine’s
accusations considered unfounded and uncalled for brings to mind the 2017 case
between Swanton and Military Rehab Compensation Commission.29In the case, the
government agency rejected a request for time extension in AAT appeal. This proved
difficult because of delays in the delivery of the documents posted. The reason for this
is that public interest should not always be cause for the release of information.30
In Mark Dreyfud and Attorney General, the case is similar to Jasmines as it shows
denied access to the diary by state personnel.31Reasons for this include the fact that
disclosure would lead to an unreasonable interference with the A.G functions.
Similarly, Jasmine is dealing with a state agency, which claims a valid refusal to
disclose information. The Judicial review in Mark Drefud noted that in its case, the
AG’s diary was for general appointments and did not warrant public scrutiny.
Public interest cases concerning FOI are varied. Some cases are hard to categorize.
For instance, the 2006 High Court case between Mckinnon and the Secretary of the
Treasury, which recognised the media lobbyist’s efforts to push for, changes on the
law.32The same applies to 1983 Federal Court jurisdiction between Harris and the
Australian Broadcasting Corporation where public interest created a balance with the
government’s role of informing.33Although it is important to allow Jasmine to express
27 Lobbying Code of Conduct,
28 The Australian Information Commissioner Act, (Cth) 2010, 25
29 Swanton v Military Rehabilitation and Compensation Commission [2017] FCA
1142
30 Marray, Simon, Freedom of information reform: Does the new public interest test
for conditionally exempt documents signal the death of the Howard Factors [2012]
Utuslawrw, 3 ( 2012), 31 ( 1) university of Law Review Tasmania 58
31 Mark Dreyfus and Attorney-General ( Commonwealth of Australia) [2015] AATA
995; 68 AAR 207
32 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
33 Harris v Australian Broadcasting Corporation [1983] 50 ALR 551

30 September 2017
herself, the executive section of the Ministry also has a responsibility to carry out its
duty in line with the law.
The Review of the Freedom of Information Act 1982 and the Australian Information
Commissioner Act 2010 identified 81 controversial or complex issues in the FOI
laws. 34 Among these is the minimization of the burden of regulating on agencies
based on the impact of the FOI on the Agency Resource. It also cited reviews on fees
and charges for a more effective response and framework for charges. The
administrative access schemes provides for the release of government information but
flexible terms advocate for quicker response in the public interest and engagement of
the public by different FOI units.
The involvement of third party in FOI makes it difficult to process personal
information. This gives the Ministry of Education a leeway to cite civil as well as
criminal liability in the access of information.35This means that the Ministry only
allows Jasmine access to the diary in good faith because the diary includes
information that features outside the FOI Act. The ministry could have pointed at the
difficulty to process large amounts of requests from the civil society instead of
mentioning the inaccessibility of the documents. This explains the 2013 reforms,
which made changes in agency operations and information handling through a
publication Scheme.
The Judicial review acknowledges a bipartisan approach to the FOI Act. It makes
provision for a $50 fees for the application requests on personal information. This
moderate amount empowers the administration scheme for efficiency in personal
information fees. In addition the changes scraped off the FOI application fees for
requests on access in order to encourage the public to make use of the Administrative
access Schemes. Hourly charges of $15 for an hour and $20 for decision-making
simplifies the processing activities36. Section 29 (5) of this highlights the waiver of
34 Commonwealth of Australia Report, 2013
<http://creativecommons.org/licenses/by/3.0/au/>
35 FOI Act ss 90, 91, 92
36 ibid, 33, Recommendation 22

30 September 2017
FOI charges in order to reduce financial hardships on applicants like Jasmine. This
allows her to access a substantial amount of information for the public interest.