Research diary
Students must submit a research diary with this assessment. Details about the format and contents of the research diary will be posted on the vUWS site. Students who do not submit a research diary will not have their assessment marked, and will receive a mark of 0 for this assessment.
Use of Generative AI
Use of generative artificial intelligence (AI) is not permitted in this assessment task without appropriate acknowledgmentsee the Learning Guide for details.
Word Limit
The assignment is to be 3,000 words (plus or minus 300 words), including footnotes. For
Form of assignment
The assignment is to be written as a letter of advice to your client, setting out both (1) the relevant and strongest grounds of review and (2) the most advisable avenues of review available. You must add footnotes, with correct and full citations to the relevant legislation and case law, as per the Australian Guide to Legal Citation.
* Ensure your full name and student number appears on the footer of each page
* Number all pages consecutively
* Indicate on the front page, the time of your tutorial and the name of your tutor.
* Do not provide a bibliography.
You must advise your client on the availability of, and most appropriate and effective options for, both non-judicial or judicial review of the administrative decision.
You must outline all the merits issues and legal issues that you consider relevant, indicating which you think are the strongest grounds for your client. Such issues must be supported by references in the footnotes to the relevant legislation, guidelines and cases.
You must discuss the differences, advantages and disadvantages, in your clients circumstances, of non-judicial review compared to judicial review.
You must advise whether your client has standing, and which tribunals and courts have jurisdiction.
Reference must be made to the legislative sections covering the procedures and application fees for these actions, and what procedures your client should expect at each step, and approximately how long the review process could take.
No reference is needed to the judicial remedies that may be available.
Fact Scenario
Your client, Angela, a freelance journalist, applied to the Department of Defence on July 30 2024 for access to copies of all documents, emails or correspondence relating to the decisions taken by the department regarding the arrangements for the disposal of sewage from AUKUS submarines while they are docked in Australia. Her application was validly made under the Freedom of Information Act 1982 (Cth) (FOI Act).
In a brief letter on August 30 2024, without any consultation with Angela, the Department refused her request, on two grounds:
Any such documents were exempt from disclosure, as per FOI Act s 33 (a).
Any such documents were deliberative processes documents, as per FOI Act s 47C.
In the letter, the Department gave no further reasons for its decision.
One week later, the Defence Minister told a media conference that the Department had rejected Angelas application because Angela was a socialist who was trying to undermine relations with the US and UK.
In your advice assume that no issues arise about the timing of the Departments letter.
Relevant legislation, guidelines and cases
This assignment requires research to find the relevant legislation, guidelines and cases. In your letter of advice, you must examine, apply or distinguish all applicable cases. You must specifically apply or distinguish the relevant parts of the following decisions (which provide a starting point for your research):
Patrick and Director-General, Australian Submarine Agency (Freedom of information)[2024] AATA 2411(12 July 2024)
Rex Patrick and Department of Defence (Freedom of information)[2021] AICmr 39(17 August 2021)
RE: Angelas FOI Application Review Options and Legal Grounds
Dear Angela,
I write in response to your request for advice regarding the Department of Defences decision to refuse your Freedom of Information (FOI) request. This letter provides an analysis of your options for challenging the Departments decision and outlines the strongest legal ground available for both judicial and non-judicial review. I will also advise on procedural matters, including standing, potential forums for review, and relevant timeframes.
Summary of facts
You applied under the Freedom of Information Act 1982 (Cth) (FOI Act) on 30 July 2024 to the Department of Defence seeking access to documents related to the disposal of sewage from AUKUS submarines while docked in Australia. The department responded on 30 August 2024, refusing your request without consultation, citing exemptions under section 33 (a) FOI Act relating to documents affection national security, defence or internation relations and section 47C FOI Act regarding deliberative processes documents. The Departments refusal did not provide additional reasoning or context. Subsequently, the Defence Minister publicly stated that your request was denied because you are a socialist attempting to undermine relationships with the US and UK. This raises concerns about procedural fairness and potential bias.
Non- Judicial Review: Internal Review and Information Commissioner Review
Internal review
Your first avenue of review is an internal review within the department, under s 54 FOI Act. This process involves a senior officer reviewing the initial decision. An internal review is a low-cost option (free of charge), and you must apply within 30 days of receiving the Departments decision. Given the departments failure to consult with you prior to making its decision, a review may lead to a more thorough reconsideration of your request.
Information commissioner review if the internal review does not result in favourable outcome, or if you wish to bypass the internal review, you can seek a review by the Office of the Australian information commissioner (OAIC) under s 54L FOI Act. this review can be commenced without the need for internal review, and there are no fees involved. The information commissioner will assess whether the departments reliance on FOI Act exemptions was valid. Notably, the deliberative processes exemption (s47C) can only be invoked if the public interest in non-disclosure outweighs the interest in disclosure. The commissioner may take into account factors such as the public interest in the transparency of government decisions related to national security, as seen in Rex Patrick and Department of Defence [2021] AlCmr 39, where the commissioner emphasized the importance of transparency in defence related decisions.
Judicial review: federal court or federal circuit court
If non-judicial review avenues do not give a satisfactory outcome, you may consider judicial review in federal court of Australia or the federal circuit and family court under the administrative decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). Judicial review is limited to assessing whether there were any legal errors in the decision-making process, rather than re-assessing the merits of the decision.
Grounds for judicial review
The strongest grounds for judicial review in your case may include:
Procedural unfairness
The lack of consultation with you prior to making the decision could be argued as a breach of procedural fairness. Under section 27 FOI Act, agencies must consult applicants if the requested documents affect third parties or if there are public interest considerations. The departments failure to consult may have deprived you of an opportunity to provide reasons why the documents should be disclosed.
Improper purpose or Bias
The defence ministers public comments suggesting that the decision was influenced by your political views raises concerns of actual bias or improper purpose. Decision makers must exercise their powers impartially and without regards to irrelevant considerations such as personal political beliefs. In SZSSJ v Minister for Immigration and Border Protection [2016] HCA 29, the High Court held that a decision infected by bias or improper purpose can be set aside.
Error of law
The departments reliance on section 33 (a) national security without adequate explanation may be considered an error of law, particularly if the documents do not directly impact national security, defence, or international relations. The federal court in Patrick and Director-General, Australian Submarine Agency (Freedom of Information) [2024] AATA 2411 clarified that exemptions based on national security must be supported by specific and credible evidence, which appears to be absent in your case.
Advantages and disadvantages
Advantages:
Judicial review can result in the decision being quashed if areas of law are identified. A successful outcome would force the department to reconsider your application in accordance with the law.
Disadvantages:
Judicial review is typically more costly and time consuming than non-judicial avenues will stop it is also limited to legal errors and does not involve a reconsideration of merits of the decision. Additionally, if the court finds no error of law you may be liable for departments legal costs.
Standing and jurisdiction
You as the applicant, clearly have standing to seek review as an aggrieved person under section 54M FOI Act and ADJR Act. Both federal court and the federal circuit and family court have jurisdiction to hear judicial review applications under the ADJR Act, with the Federal Circuit Court often being the most cost effective and efficient option for the FOI matters.
Merits and legal issues
Exemption under FOI Act s33 (a) National Security
The department has claimed that the documents are exempt due to national security concerns. However, this exemption is subject to scrutiny. As outlines in Patrick v Australian Submarine Agency [2024] AATA 2411, national security claims must be supported by substantive evidence. If the documents you seek pertain to mundane operational details about sewage disposal, it may be difficult for the department to justify withholding the information solely on national security grounds.
Deliberative processes exemption (FOI Act s47C)
The deliberative processes exemption covers internal decision-making documents that are part of the consultation process. However, as established in Rex Patrick v Department of Defence [2021] AlCmr 39, this exemption is limited by the public interest test. If the public interest in transparency outweighs the potential harm of disclosure, the documents should be released. In your case, there is a strong argument that transparency in defence decisions related to environmental and public health such as sewage disposal is in the publics interest.
Timeframes and procedures
Internal review must be requested within 30 days of receiving the decision. Decision is usually made within 30 days.
OAIC review the commissioner typically takes 6 to 12 months to complete a review.
Judicial review applications must be filed within 28 days of the decision or after exhausting internal review options. The time frame for resolution can range from several months to over a year depending on the complexity of the case.
Conclusion and recommendations
Based on the above analysis, I recommend the following cause of action:
Seek internal review to challenge the department’s refusal, emphasising the lack of consultation and potential misapplication of exemptions
If unsuccessful pursue a review by the Information Commissioner, focus on the public interest in the disclosure of environmental and operational details, as well as any procedural fairness issues
If non-judicial avenues do not result in a favourable outcome, consider judicial review on the grounds of procedural unfairness, improper purpose (bias) and errors of law regarding the exemptions.
Should you have any further questions or wish to discuss these options in more detail please do not hesitate to contact me