This part requires advice on the availability of, and best options for, informal review, internal review, FOI, Ombudsman and tribunal review of the administrative decision.
- You must outline the merits issues and legal issuesthat you consider relevant. Such issues must be supported by references in the footnotes to the relevant legislation, guidelines and cases.
- 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 how long the review process could take.
This part requires advice on the possibility of challenging, via judicial review, the decision made by the original decision maker or relevant tribunal.
- You must advise whether your client has standing, and which courts have jurisdiction.
- You must outline the grounds that may be open to challenge the administrative decision, indicating which you think are the strongest grounds.
- No reference is needed to the remedies that are available, but the likely time and fees of any action must be indicated.
Part 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 increases. 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. Jasmine applied for a review using the FOI, which allows the public to access government agencies and document. 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 days. 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 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 it.
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 personal. 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.
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. He gives wrong information about the deliberative provisions of the FOI Act causing doubts about the good will intention of the government agency.
Part 2: Judicial Review
The 1976 Administrative Appeals Tribunal (AAT) advocates for appeals on decisions such as freedom of Information. 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 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 decision. 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 decision. 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.
The Tribunal is independent of any influence from individuals and parties concerned. 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.
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. The 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 2018. 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 access. 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 backgrounds. 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.
The independence of the judicial institution (legislature and executive), courts and tribunals as well as agencies have their own law making and enforcement powers. 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.
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. 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 Jasmine. The constitution prevents her from interfering and provides the Australian Information Commissioner Act of 2010 to supports the FOI Act.Its 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. This 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. The 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. 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 facie.
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.In 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.
In Mark Dreyfud and Attorney General, the case is similar to Jasmines as it shows denied access to the diary by state personnel.Reasons 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.The 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.Although it is important to allow Jasmine to express 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. 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.This 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 activities. Section 29 (5) of this highlights the waiver of 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.
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