Administrative Law Report: FOI Act Review and Judicial Review

This report delves into the realm of Administrative Law, primarily focusing on the Freedom of Information Act 1982 (FOI Act) and its implications within the Australian legal system. The report begins by outlining the context of the FOI Act, emphasizing its role in granting public access to government documents and the exceptions that apply. It then explores various review mechanisms, including informal, internal, and tribunal reviews, as well as the role of the Ombudsman. The report also examines judicial review processes, highlighting the grounds for challenging decisions and the legal issues involved. The analysis is grounded in case law, specifically addressing a scenario where a request for information under the FOI Act was denied. The report provides a comprehensive overview of the legal framework surrounding access to government information and the avenues available for challenging decisions that restrict public access.

Running head: ADMINISTRATIVE LAW
Administrative Law
Name of the student:
Name of the university:
Author note

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Table of Contents
Introduction:...............................................................................................................................2
Discussion..................................................................................................................................3
Part 1..........................................................................................................................................3
Legal issues............................................................................................................................3
Informal review......................................................................................................................4
Internal review........................................................................................................................4
Ombudsman............................................................................................................................6
Freedom of Information Act...................................................................................................6
Tribunal review......................................................................................................................7
Part 2..........................................................................................................................................9
Judicial review........................................................................................................................9
Possibility of challenging the denial.....................................................................................10
Grounds of challenge............................................................................................................11
Conclusion................................................................................................................................12
Reference:................................................................................................................................13

2ADMINISTRATIVE LAW
Introduction:
The report is based on the provisions of the Freedom of Information Act 1982 and an
attempt has been made to understand the various requirements within the review section.
Various types of review system have been discussed in this report and the requirements that
are to be met in that case has also been discussed. Under the Commonwealth system,
Australia enjoys certain rights through certain Acts and the government intends to secure the
interest of the public at large1. Through Freedom of Information Act 1982 public gets the
right to access certain documents of the government. The main objective regarding the same
is to know about the operation of the government department. Those documents are generally
kept under the possession of the government2. However, it is to be remembered that there are
certain documents that are not fall under this accessory rights. The documents include
detailed statement about cabinet deliberation, documents that can be revealed the secret on
trade or certain documents, accession of which can be lead towards the damage of national
security. There are certain processes that will be maintained before making the application
regarding the right to access.
The report is evolved with a case law where it has been observed that Jasmine filed an
application with an intention to get certain access into government documents. However, it
has been observed that the office of the Ministers’ had denied providing the information to
her.
1 Davies, M. "GMC launches internal review of suicides among doctors facing fitness-to-practise
investigations, Pulse Today." (2013).
2 Douglas, Roger, and Michael Head. Douglas and Jones's administrative law. 2014.

3ADMINISTRATIVE LAW
It has been clear from the Act that the rights mentioned in this Act are for the sake of
public right and except certain documents, the public are entitled to obtain information
regarding the government documents. An attempt has been made to point out the various
provisions of the Act, regarding the review system and grounds of challenge made against the
decision that restrict the public from getting this benefit3.
Discussion
Part 1
Legal issues
The main issue of the case is to find out whether the decision made by the office of
Ministers’ can be challenged by Jasmine or not. It has been stated that the subject matter of
the case is based on the legal provisions of the Freedom of Information Act 1982. It has been
mentioned under the Act that all the public will get a chance to access to certain government
documents and the governments are required to deliver the same to the applicant. There are
certain exceptions exist in this case.4 However, it has been stated that the documents that
involved the core process of the Government should not be disclosed to any public in general.
Therefore, it can be stated if an act has been made to restrict persons from getting the benefit,
it will be treated as violation regarding the provisions of the Act and the offender shall be
punished regarding the same.
3 Gardbaum, Stephen. "Separation of powers and the growth of judicial review in established democracies
(or why has the model of legislative supremacy mostly been withdrawn from sale?)." The American Journal
of Comparative Law 62.3 (2014): 613-640.
4 Gargano, Antonio, Alberto G. Rossi, and Russ Wermers. "The freedom of information act and the race
toward information acquisition." The Review of Financial Studies 30.6 (2017): 2179-2228.

4ADMINISTRATIVE LAW
In this case, it has been observed that Jasmine had asked for the access as against
certain government documents and it has been observed that the same application was
rejected on the ground that she is a radical activist and refused to provide certain things to
her.
Informal review
Review means evaluation of a paper to assess the same. There are certain kinds of
review like scientific review, review articles. There are certain techniques that are to be
followed regarding the review process. One of the commonly used techniques is informal
review system. There are certain kinds of informal review existed such as work through
review, peer review and technical review5. The main objective of the work through review is
to find out the problematic sectors, find out other alternative solutions and see whether all the
requirements have been made or not. The term peer review denotes the action done by an
individual should be looked at twice and it is the responsibility of others to make a search at it
that holds similar competency to the person. It is a self regulation process. The main focus of
the technical review system is the technical content and in the process it is needed to provide
all relevant documents regarding the same. Experts are allotted to locate out the appropriate
grounds or imperfections if any in the article and the experts are come out with certain fields
specialisation. Informal review system can be adopted in many places and the individuals are
attaining certain opportunities by gaining acquaintance about the strategies and procedures6.
5 Gregory, Charles. "Judicial independence in Australia: Contemporary challenges, future directions [Book
Review]." Bar News: The Journal of the NSW Bar Association Spring 2016 (2016): 74.
6 Janssen, Suzanne, Mark Vuuren, and Menno DT Jong. "Informal mentoring at work: A review and
suggestions for future research." International journal of management reviews 18.4 (2016): 498-517.

5ADMINISTRATIVE LAW
Internal review
The internal review system done an investigation into a document and assess all the
obligation regarding an internal investigation. This kind of review system useful in the
agency policies. Any person shall have the right to ask any question in regards to amend or
correct any personal information on health and it is required to hold all the information by the
NSW companies. It is also important that the companies should be Public Sector Company.
However, it has been stated that if any application has been made under the Privacy
and Personal Information Protection Act 1998 (PPIP Act) or under the Health Records and
Information Privacy Act 2002 (HRIP Act) and if the request is refused, then the people will
get an option to apply for an interior reassess of the conclusion to decline right of entry or
amend their information7.
It is to be kept in mind that the internal review must be done by someone diverse to
the person in charge for the conductor decision complained about. There are certain
qualifications mentioned regarding the person who conducted internal review. The person
must be a suitably competent employee of the agency. The NSW Privacy Commissioner has
certain roles in over-sighting the internal review development and empowered to make
capitulation on inner reviews. The whole process of the review should be done within 60
days.
Time for review has also been mentioned regarding the dissatisfy reply by the
concerned authority. If the internal review is not finished within 60 days, or if the applicant is
discontented with the results of the internal review, they have 28 days (Refer to Rule 24 of
the Civil and Administrative Tribunal Rules 2014 to ask the NSW Civil and Administrative
7 Rodgers, Michael A. Freedom of Information Act Requests: Six Keys to Handling Them. Defense
Acquisition University Fort Belvoir United States, 2016.

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Tribunal (NCAT) to review the conductor decision complained about. NCAT will assess
whether or not the agency complied with its solitude compulsions.
Ombudsman
Ombudsman are the institute that are empowered with the responsibilities to secure
the interest of the public in general and through this process, an investigation has been done
addressing all the complaints made out by the public if their rights are violated8. The
ombudsman is that wings appointed by the government to resolve all the alleged problems.
The nature of the ombudsman is to hear the problems, analyse the same and resolve the
problems by mediation. Investigation is a necessary process in case of the ombudsman. It
plays an important role to secure the rights of the people in general and most of the
ombudsman is following certain mandates that are restricted in nature. Ombudsmen are also
appointed to resolve the matters related to the parliamentary commissioner and it is applied to
the south portion of Australia9.
Freedom of Information Act
The Freedom of Information Act 1982 (FOI Act) provides a lawfully enforceable
right of access to government documents. It applies to Australian Government ministers and
most agencies, although the obligations of agencies and ministers are different. The
Australian Parliament first considered introducing freedom of information (FOI) legislation
in the 1970s. In 1979, a Senate committee report outlined three reasons why FOI is
significant:
8 Schudson, Michael. "Origins of the freedom of information act in the United States." Transparency in
politics and the media: Accountability and open government (2014): 1-18.
9 Stewart, Daniel. "Assessing Access to Information in Australia: The Impact of Freedom of Information
Laws on the Scrutiny and Operation of the Commonwealth Government." (2015).

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 FOI allows individuals to observe what information government grasp about them,
and to seek alteration of that information if they consider it incorrect or misleading.
 FOI extends the lucidity of strategy making, organizational decision making and
government service release.
 A hamlet that is better conversant can take part more efficiently in the nation’s self-
governing processes.
The following are covered by the Act. The FOI Act promotes government
responsibility and precision by providing a legal structure for human being to plea right of
entry to government documents10. This includes documents containing individual or other in
sequence, such as information about policy-making, secretarial decision-making and
government service delivery. Individuals can also demand that ministers or agencies adjust or
interpret any information held about them.
It allows asking for access to documents held by Australian Government ministers
and most organizations allow requesting that ministers or agencies amend or interpret any
information they hold about you. It establishes an information publication scheme requiring
bureau to publish online details about their purposes and structure that allows agencies and
ministers to discharge documents that would be exempt under the FOI Act, unless prevented
by a secrecy requirement in another law.
10 Sundar, KR Shyam. Labour Law and Governance Reforms in India: A Partial and Misguided View of
Employment Relations. No. id: 11065. 2016.

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Tribunal review
Modern tribunals play an significant role in society. It is a fact that the idea of tribunal
is old. Their genesis lie in the Roman tribune whose mission was to get up between working-
class citizens and aristocratic magistrates.
Tribunals can be Government support or personal. They can be directorial or communal.
Administrative tribunals are concentrated on executive actions of government. Communal
tribunals are concerned with resolving clandestine argument.
There are a array of tribunals in the entities which review organizational judgment of
governments. The biggest is the Victorian Civil and Administrative Tribunal. That tribunal
also has authority to decide a range of private argument. The Administrative Decisions
Tribunal in New South Wales has convinced limited authority in relation to private disputes.
Tribunals such as the New South Wales Consumer, Trader and Tenancy Tribunal are
chiefly concerned with determining private disputes such as building and occupancy disputes.
The justification for this is mentioned in the Australian Constitution. The first three
chapters of the Australian Constitution are headed "The Parliament" (the legislature), "The
Executive Government" (the administration) and "The Judicature" (the judiciary). The High
Court of Australia held that the Constitution required a departure of these three functions.
Accordingly, the executive or administration cannot exercise judicial power. Official power
can only be exercised by courts. The definition of courts is also mentioned in the verdict of
High Court. Courts are required to be comprised of independent judicial officers with refuge
of possession and to have the power to make and implement orders.
There are certain importance present in case of the administrative tribunal review.
These are as follows:

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The tribunal was established in the provinces of Australia in the year 1975 with
general jurisdiction to reconsider a large range of government organizational decisions
involved very sophisticated thinking. It reflected an indulgent of the infringement of
administrative decision-making into every aspect of society and the lives of citizens. It
reflected potency of mind that such wide and noteworthy decision-making should be made
with a high echelon of fairness. No similar tribunal subsist in the United Kingdom, Canada or
New Zealand although the Leggett Committee in the United Kingdom suggested that existing
tribunals should be brought together in an amalgamated structure. Nowhere is there an
directorial review organization as inclusive and broad as in Australia.
Part 2
Judicial review
The process of judicial review plays an significant part in Australia’s system of
government. It is intended to ensure the responsibility of public bureaucrats for the soundness
of their actions. Judicial review at a federal level of Australia has been available under the
Constitution since the commencement of the Commonwealth. The introduction of
constitutional legal review under the Administrative Decisions (Judicial Review) Act 1977
(‘ADJR Act’) provided a cut down procedure for judicial review11.
11 Davis, Fergal F., and Fiona De Londras, eds. Critical Debates on Counter-terrorism Judicial Review.
Cambridge University Press, 2014.

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The Administrative Decisions Judicial Review Act originated in 1980 and judicial review
proceedings since then have led to key expansions in the legal principles connected with
judicial review12. The future direction of judicial review including:
 There is a need for statutory review apparatus, both universal and definite, in
luminosity of the fact that constitutional judicial review is ingrained and could not be
disqualified by legislation;
 The compass and requirements of a general constitutional review method, if such a
scheme is to be efficient, and
 The general philosophy that should to pertain to any statutory reassesses scheme, and
leadership as to whether and when specific statutory review methods are suitable.
Possibility of challenging the denial
It has been observed in the case that Jasmine had made a review under the Freedom of
Information Act and it has been stated that the application made by her was refused by the
concerned ministry by stating the grounds of such denial. It has been observed that section 11
of the Act provides right to the public to access into the government document to look at the
government system and therefore, it can be stated that Jasmine has the right to apply for the
matter13. It is clear from the case that she had met all the requirements as mentioned under
section 20 of the Act. There are certain documents that are exempted from the definition of
the Act. All the exempted documents have been mentioned under part IV of the Act.
However, the basis mentioned herein could not be attached to the Act14. Therefore, Jasmine
12 Sylaska, Kateryna M., and Katie M. Edwards. "Disclosure of intimate partner violence to informal social
support network members: A review of the literature." Trauma, Violence, & Abuse15.1 (2014): 3-21.
13 Thurston, Anne. "Access to Reliable Public Records as Evidence for Freedom of Information in
Commonwealth Africa." The Round Table 104.6 (2015): 703-713.
14 Witzleb, Normann, et al., eds. Emerging challenges in privacy law: comparative perspectives. No. 23.
Cambridge University Press, 2014.

11ADMINISTRATIVE LAW
can be applied against the conduct of the Ministry. It has also been stated that the ministry
had refused to provide the information to her as she is a radical activist. These can be
violating the rights of Jasmine and she can make a complaint to the tribunal or ombudsman15.
Grounds of challenge
The Act regarding the Freedom of Information has been provided an opportunity to
the citizen gaining certain knowledge about the government works. It has been stated under
section 8 of the Act that the public has certain rights to review the papers of government and
the rights have been given to the citizen of Australia since 1882. The main objective of the
Act is to give the citizen a right to access in certain documents so that they will get in touch
with the governmental works16. The provision regarding the right to access has been engraved
under section 11 of the Act. It has been clear from the case that Jasmine had made a request
to access in certain documents and such request has been made under section 15 of the Act.
It is apparent that the Act giving chances to the public to enter into the periphery of
Government, even if certain documents are let off from the Act. It has been stated by the
lawmaker that the documents that are grave in nature and the interest of the country related to
it could not be disclosed to any person. Part IV of the Act contains certain sections where the
grounds of the exempted documents are being mentioned. However, the statement made by
the department of ministry is not fall within the provisions of part IV.
15 Gardbaum, Stephen. "Separation of powers and the growth of judicial review in established democracies
(or why has the model of legislative supremacy mostly been withdrawn from sale?)." The American Journal
of Comparative Law 62.3 (2014): 613-640.
16 Rodgers, Michael A. Freedom of Information Act Requests: Six Keys to Handling Them. Defense
Acquisition University Fort Belvoir United States, 2016.

12ADMINISTRATIVE LAW
It has also been stated that the ministry told to the parliament that they will not
provide any document to her as she is involved in certain radical movement. The main
objective of the Freedom of Information Act is to provide rights to the citizen of Australia
and no classifications have been made by the government in this case17. Therefore, Jasmine
can make challenge on the grounds of:
 The department had not allowed her to access to the applied documents.
 The department had made certain excuse to Jasmine regarding the documents.
 The department had failed to comply with the provision of FOI Act.
Conclusion
Therefore, it can be stated that the acts done by the ministry as against the application
of Jasmine could not stated fair. There were loopholes in the process of the department and to
pass the buck, they had adopted certain excuses though they had informed her regarding the
same. It has been mentioned under the Act that all the community will obtain the right to
access to certain government file and the area of exempted documents are also been stated
here. Certain requirements have been prepared regarding the discussion and the relevant
provisions regarding the same are section 26, section 27 and section 27A of the Act.
However, the acts of the department of ministry had been treated as against the rights of
Jasmine and she can made complaint under section 28 of the Administrative Appeals
Tribunal Act 1975.
17 Stellios, James. "Conceptions of judicial review: Commentary on Dixon." Fed. L. Rev. 43 (2015): 511.

13ADMINISTRATIVE LAW
Reference:
Davies, M. "GMC launches internal review of suicides among doctors facing fitness-to-
practise investigations, Pulse Today." (2013).
Davis, Fergal F., and Fiona De Londras, eds. Critical Debates on Counter-terrorism Judicial
Review. Cambridge University Press, 2014.
Douglas, Roger, and Michael Head. Douglas and Jones's administrative law. 2014.
Gardbaum, Stephen. "Separation of powers and the growth of judicial review in established
democracies (or why has the model of legislative supremacy mostly been withdrawn from
sale?)." The American Journal of Comparative Law 62.3 (2014): 613-640.
Gargano, Antonio, Alberto G. Rossi, and Russ Wermers. "The freedom of information act
and the race toward information acquisition." The Review of Financial Studies 30.6 (2017):
2179-2228.
Gregory, Charles. "Judicial independence in Australia: Contemporary challenges, future
directions [Book Review]." Bar News: The Journal of the NSW Bar Association Spring 2016
(2016): 74.
Janssen, Suzanne, Mark Vuuren, and Menno DT Jong. "Informal mentoring at work: A
review and suggestions for future research." International journal of management
reviews 18.4 (2016): 498-517.
Rodgers, Michael A. Freedom of Information Act Requests: Six Keys to Handling Them.
Defense Acquisition University Fort Belvoir United States, 2016.

14ADMINISTRATIVE LAW
Schudson, Michael. "Origins of the freedom of information act in the United
States." Transparency in politics and the media: Accountability and open government (2014):
1-18.
Stellios, James. "Conceptions of judicial review: Commentary on Dixon." Fed. L. Rev. 43
(2015): 511.
Stewart, Daniel. "Assessing Access to Information in Australia: The Impact of Freedom of
Information Laws on the Scrutiny and Operation of the Commonwealth Government."
(2015).
Sundar, KR Shyam. Labour Law and Governance Reforms in India: A Partial and Misguided
View of Employment Relations. No. id: 11065. 2016.
Sylaska, Kateryna M., and Katie M. Edwards. "Disclosure of intimate partner violence to
informal social support network members: A review of the literature." Trauma, Violence, &
Abuse15.1 (2014): 3-21.
Thurston, Anne. "Access to Reliable Public Records as Evidence for Freedom of Information
in Commonwealth Africa." The Round Table 104.6 (2015): 703-713.
Witzleb, Normann, et al., eds. Emerging challenges in privacy law: comparative perspectives.
No. 23. Cambridge University Press, 2014.