Recent developments in Administrative Law – Volume 74

Report into Freedom of Information completed

On 1 July 2013, Attorney-General Mark Dreyfus QC received a report on freedom of information laws by eminent former senior public servant and diplomat
Dr Allan Hawke AC.

Dr Hawke’s report reviews the operation of the Freedom of Information Act 1982 and the Australian Information Commissioner Act 2010 and
the extent to which those laws, and related laws, provide an effective framework for access to government information.

‘I am pleased to receive Dr Hawke’s report and I thank him for all the work he has undertaken during the course of his review,’ Mr Dreyfus said.

‘I will be giving Dr Hawke’s report close consideration and will release it publicly once I have had an opportunity to consider the issues it raises.’

The review provided an opportunity to assess the impact of the Government’s Freedom of Information reforms, which aimed to promote a pro-disclosure culture
across the Government and build a stronger foundation for more openness in government.

The review was mandated by legislation to begin in November 2012, two years after the commencement of the FOI reforms, to allow enough time to assess the
effectiveness of the reforms, including the structural changes to the FOI system.

Dr Hawke was asked to consult on aspects of Freedom of Information such as:

  • the effectiveness of the Office of the Australian Information Commissioner;
  • the appropriateness of existing FOI exemptions;
  • the role of fees and charges; and
  • minimising regulatory burdens and the cost of FOI.

Eighty-one submissions were made to the review.

The legislation establishing the review requires the report to be tabled within 15 sitting days after it has been received by the Attorney-General.

Commonwealth whistleblower laws passed

Public-sector whistleblowers will have greater protection under legislation passed by the Government.

The Minister for the Public Service and Integrity Mark Dreyfus QC said the Public Interest Disclosure Bill and the Public Interest (Consequential Amendments)
Bill were a significant step in advancing integrity and accountability of the Commonwealth public sector.

‘The Public Interest Disclosure Bill strikes the right balance to achieve a comprehensive and effective framework of protection for public interest disclosures
in the Commonwealth public sector. It will help build and maintain a culture of disclosure across the public sector,’ Mr Dreyfus said.

‘The Bill will encourage a pro-disclosure culture, by facilitating disclosure and investigation of wrongdoing and maladministration in the Commonwealth
public sector. It provides a clear set of rules for agencies to respond to allegations of wrongdoing made by current and former public officials, and
strengthens protections against victimisation and discrimination for those speaking out.’

The Public Interest Disclosure Bill implements the 2010 Government Response to the 2009 House of Representatives Standing Committee on Legal and Constitutional
Affairs report, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector, chaired by Mr Dreyfus.

The Bill will have broad coverage across the Commonwealth public sector, including application to the Australian Public Service, statutory agencies, Commonwealth
authorities, the Defence Force, Parliamentary departments and contracted service providers for Commonwealth contracts.

‘I would like to thank all those who contributed to the development of this legislation, from my colleagues on the 2009 Committee Inquiry, to the Government
members and senators who have had a sustained interest in the progress of this Bill, the Committees involved in the recent Parliamentary inquiries
and those who made submissions to these inquiries. All have made valuable contributions to the Bill. I would particularly like to acknowledge the assistance
of Dr A J Brown in the development of the legislation,’ Mr Dreyfus said.

‘A federal public interest disclosure scheme has been a long time coming. The passage of this legislation means that the Commonwealth is no longer the
only Australian jurisdiction without dedicated legislation to facilitate the making of public interest disclosures or to protect those who make them.’

The Public Interest Disclosure Bill includes a statutory review of its operation two years after commencement.

Parliament passes historic Commonwealth Sex Discrimination Amendment Bill

Attorney-General Mark Dreyfus QC has welcomed the passage through Parliament of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and
Intersex Status) Bill, which legislates long-overdue protections for gay, lesbian, bisexual, transgender and intersex people.

The legislation will establish, for the first time at the Federal level, protections against discrimination in areas such as accommodation and healthcare.

Following consultation with aged care providers and a recommendation from the Senate Legal and Constitutional Affairs Committee, the Government amended
the Bill to insert a qualification on the exemption for religious organisations for the provision of Commonwealth-funded aged care services.

‘The Government is proud to have passed this historic Bill, which is an important step towards equality for all Australians, regardless of their sexuality
or gender identity,’ Mr Dreyfus said.

‘This amendment has been strongly supported by UnitingCare Australia and Mission Australia, and other major aged care providers have confirmed they do
not discriminate against any residents or those seeking care.’

‘The vast majority of aged care service providers give dedicated and loving care to their residents no matter who they are, but it is important to ensure
such discrimination cannot ever occur. Ageing gay, lesbian, bisexual, transgender and intersex people should not have to live in fear that they may
be barred from essential care services.’

‘This protection is particularly vital in regional areas where there is a limited choice of aged care providers.’

The new protections build upon the Government’s reforms to eighty-five Commonwealth Acts which removed discrimination against same-sex couples and their

Protecting privacy in the digital era

The Attorney-General Mark Dreyfus QC has asked the Australian Law Reform Commission to conduct an inquiry into the protection of privacy in the digital

The inquiry will address both prevention and remedies for serious invasions of privacy.

‘As I noted in March this year, further work needs to be done on whether to create a right to sue for breach of privacy,’ Mr Dreyfus said.

‘I am asking the Australian Law Reform Commission to consider this issue in light of changing conceptions of community privacy and rapid growth in information
technology capabilities.

‘The Government strongly believes in protecting the privacy of individuals, but this must be balanced against the Australian public’s right to freedom
of communication and expression.’

New technologies and modes of communication that provide new opportunities to connect, collaborate and create also pose new privacy challenges.

‘Our privacy laws need to address future challenges and ensure people can take action against a person or organisation that seriously violates their privacy.
Earlier consultations by the Australian Law Reform Commission in 2008, and responses to the Government’s 2011 discussion paper, showed little consensus
on how a legal right to sue for breach of privacy should be created, or whether it should be created at all,’ Mr Dreyfus said.

A range of issues were raised, including whether a tort could create a more litigious culture, how it could impact on free speech and how the implied right
to political communication could be balanced with an individual’s right to sue.

‘I have asked the Australian Law Reform Commission to ensure that the importance of freedom of expression and other rights and interests are appropriately
balanced,’ Mr Dreyfus said.

The Government will carefully consider the findings of the Australian Law Reform Commission before making a final decision.

New law to strengthen open justice in Victoria

On 26 June 2013, the Victorian Coalition Government introduced legislation into Parliament to strengthen and promote open justice in Victoria’s courts.

The legislation consolidates and reforms the general statutory powers for the courts and VCAT to make suppression orders and closed court orders.

It establishes clear presumptions in favour of allowing free reporting of court proceedings and holding hearings in public.

‘This legislation is another significant step in the Coalition Government’s reforms to strengthen Victoria’s justice system,’ Attorney-General Robert Clark

‘Open justice demonstrates publicly that laws are being applied and enforced fairly and effectively. Unless there is good reason to the contrary, the community
is entitled to know what is being said in court where there are allegations that the conduct of an individual or organisation is in breach of the law.

‘Restrictions on publishing information before the courts should only be imposed where there is a very good reason and should be limited to a clear and
specific purpose.’

Key features of the Bill include:

  • suppression orders under courts’ general statutory power can only be made in specified limited circumstances where there is a strong and valid reason
    for doing so;
  • the court must be satisfied on the basis of sufficient credible information that the grounds for making a suppression order are established;
  • the type of information to which an order relates must be specified in the order and must be no more than is necessary to achieve the purpose of the
    order; and
  • orders must be restricted in their duration. A court may only make an order for a fixed or ascertainable period, or until the occurrence of a specified
    future event. If there is a possibility that the future event will not occur, the order also must contain an expiry period that cannot be longer
    than five years.

Generally, orders restricting the reporting of court proceedings under the Bill can only be made where it is necessary to:

  • prevent prejudice to the proper administration of justice;
  • prevent prejudice to national or international security;
  • protect the safety of any person;
  • avoid undue distress or embarrassment to a party or witness in criminal proceedings involving a sexual offence or family violence; or
  • avoid undue distress or embarrassment to a child who is a witness in a criminal proceeding.

The Bill does not alter the principle that matters that might prejudice a fair trial should not be reported ahead of a court hearing.

However, the Bill sets clear rules and guidelines for the making of any orders to suppress publication of such matters, to ensure those orders are limited
to what is necessary and are not in force for longer than is necessary.

The Bill is based on a model Bill endorsed in 2010 by the Standing Committee of Attorneys-General. However, the Coalition Government has deliberately excluded
from the Bill the sweeping and unclear ‘public interest’ ground for suppression orders that was included in the model Bill.

Instead, the Bill preserves specific statutory regimes that provide for the making of suppression orders where considerations other than those in the Bill
are relevant, for example orders about serious sex offenders, child protection proceedings and other Children’s Court matters.

The Bill also preserves the existing grounds for VCAT and the Coroners Court to make suppression orders, reflecting the unique nature of those jurisdictions.

The Bill makes clear that news media organisations may appear and be heard by a court or tribunal on an application for a suppression order under the Bill.

Media organisations and other relevant persons are also given express statutory rights to seek review of orders that are made to ensure that interested
parties can have their say on whether an order should be varied, revoked or renewed.

Where an interim order is made, the court must proceed to determine the substantive application as a matter of urgency.

$4 million to assist unrepresented litigants in federal civil law matters

Attorney-General Mark Dreyfus QC and Parliamentary Secretary Shayne Neumann have announced new funding of $4 million over four years to support unrepresented
litigants who would not otherwise have access to legal assistance and advice.

‘The service fills an important gap by providing legal assistance in federal civil law matters to those who are unable to otherwise afford legal representation,’
Mr Dreyfus said.

Assistance will be available for unrepresented litigants in the areas of social security, discrimination, consumer law, judicial review, bankruptcy, immigration
and employment law.

‘The national rollout will be based on the successful pilot conducted by the Queensland Public Interest Law Clearing House in the former Federal Magistrates
Court and Federal Court,’ Mr Neumann said.

‘The pilot was a good example of an effective collaboration between government-funded services and the private sector to deliver cost-effective legal services
that respond to the legal needs of the Australian community.

‘It was modelled on the Royal Courts of Justice Advice Bureau which has been successfully operating in London for more than 30 years.’

Mr Dreyfus said there would be a focus on early resolution and mediation of disputes.

In addition, the scheme will help divert potentially frivolous or vexatious actions away from the Federal Court and Circuit Courts, lessening the burden
on those courts,’ Mr Dreyfus said.

‘This is an important initiative in improving access to justice across our nation, and I commend the Queensland Public Interest Law Clearing House for
its pioneering work with this program.’

Further information is available at

Commissioner appointed for ALRC inquiry into legal barriers for people with disabilities

A new inquiry will consider whether Commonwealth laws and legal frameworks create barriers to people with disabilities exercising their rights and legal

On 23 July 2013, Attorney-General Mark Dreyfus QC formally referred the inquiry into Legal Barriers for People with Disabilities to the Australian Law
Reform Commission (ALRC), and appointed the Disability Discrimination Commissioner Mr Graeme Innes AM to the ALRC to support the inquiry.

‘People with disability deserve the opportunity to make decisions affecting their lives,’ Mr Dreyfus said.

In welcoming Mr Innes’ appointment, Minister for Disability Reform Jenny Macklin said that as Australia’s Disability Discrimination Commissioner Mr Innes
has been a powerful advocate for people with disability.

‘Mr Innes’ work in ensuring that people with disability have access to the same rights and opportunities as Australians without disability ideally positions
him to lead this important Inquiry,’ Ms Macklin said.

‘The inquiry follows the historic launch of DisabilityCare Australia on 1 July this year- a momentous achievement that will finally give people with disability
the certainty they deserve.’

Inquiries undertaken by the Australian Law Reform Commission provide a unique opportunity for in depth consideration of issues of law.

The reference follows a three-week public consultation on draft terms of reference.

‘Overall the feedback on the draft terms of reference was very positive,’ Mr Dreyfus said.

‘We have made changes to the terms of reference based on the consultation and I’m looking forward to the ALRC’s final report on this topic, which is due
in August 2014.’

Recent Decisions

A decision of a superior court of record is valid until set aside

The State of NSW v Kable [2013] HCA 26 (5 June 2013)

 1From February to August 1995 Mr Kable was held in a New South Wales prison pursuant to an order made by Levine J purportedly under
the Community Protection Act 1994 (NSW) (the CP Act). The CP Act permitted a detention order to be made in respect of Mr
Kable, if a Supreme Court judge was satisfied that he was likely to commit a serious act of violence and it was appropriate to hold him in custody.

2Mr Kable successfully challenged the constitutional validity of the CP Act (Kable v Director of Public Prosecutions (NSW) [1996] HCA
24) (Kable No 1). The High Court held that the CP Act was inimical to the exercise of judicial power. It was wholly invalid,
as were all the steps taken under it.

In 1996 Mr Kable commenced proceedings seeking damages arising from the conduct of the State and its officers for detaining him for six months on the basis
of the detention order made under the invalid CP Act. The primary judge dismissed Mr Kable’s claims. On 1 November 2010, Mr Kable appealed
to the Court of Appeal. That Court allowed the appeal in part, on the basis that an order made under the CP Act was not a judicial act and
was void from the beginning.

By special leave, the State appealed to the High Court. The High Court unanimously allowed the appeal, holding that the detention order was a judicial
order that was valid until set aside.

The High Court found that the order made by Levine J (although constitutionally invalid) was a judicial order because it was the result of an adjudication
determining the rights of Mr Kable. It was made following proceedings in which witnesses were examined and cross-examined, opposing parties made submission
and, subject to some exceptions, the rules of evidence applied. The High Court drew a distinction between how the power which the CP Act purported to be given to the Supreme Court was exercised and whether the power was given validly to the Supreme Court.

The High Court also held that it is now firmly established in Australian law that the orders of a federal court which is established as a superior court
of record are valid until set aside, even if the orders are made in excess of jurisdiction (whether on constitutional grounds or for reasons of some
statutory limitation on jurisdiction), and that these principles apply equally to the judicial orders of a State Supreme Court.

The High Court opined that there must come a point in any developed legal system where decisions made in the exercise of judicial power are given effect
despite the particular decision later being set aside or reversed. That point may be marked in a number of ways. One way in which it is marked, in
Australian law, is by treating the orders of a superior court of record as valid until set aside. Were this not so, the exercise of judicial power
could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have
no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals
affected by the order would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another.
The individuals affected by the order would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive
process) or incur tortious liability to the person whose rights and liabilities are affected by the order.

Therefore the order made by Levine J under the CP Act provided lawful authority for Mr Kable’s detention until set aside, and the primary judge’s
orders dismissing Mr Kable’s claims were reinstated.

Apprehended bias – too many statements, not enough questions

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (25 July 2013)

 The appellant, a Nepalese citizen, arrived in Australia on 18 February 2009 on a student visa. On 28 September 2011 he applied to
the Department of Immigration and Citizenship for a Protection (Class XA) Visa. The appellant claimed, among other things, that he (as a Hindu) had
made a Muslim girl pregnant and that the girl’s father and some Muslim associates had attacked his family home.

A delegate of the Immigration Minister refused that application. On 29 March 2012 the appellant applied to the Refugee Review Tribunal (the Tribunal) seeking
review of the delegate’s decision. The appellant attended a hearing before the Tribunal member. On 21 August 2012, the Tribunal affirmed the delegate’s
decision and published its reasons for decision.

The appellant then sought judicial review of the Tribunal’s decision by the then Federal Magistrates Court. That Court dismissed the application on 26
March 2013.

On 16 April 2013, the appellant appealed to the Full Federal Court. The appellant contended, among other things, that the Federal Magistrate erred in not
concluding that the decision of the Tribunal was vitiated by reason of a reasonable apprehension of bias on the part of the Tribunal member.

The Full Court found, after considering the entirety of the transcript of the Tribunal hearing and the surrounding circumstances, including the statutory
power being exercised by the Tribunal, that the course of the hearing did give rise to a reasonable apprehension of bias.

The testing by the Tribunal of the appellant’s claims and evidence was too frequent and what the Tribunal said was too absolute and definite, taking the
form of statements rather than questions.

The Full Court held that it is one thing to manifest scepticism and to test credibility vigorously but it is another to state, on approximately a dozen
occasions in the course of a relatively short hearing of less than two hours and over fewer than 10 pages of transcript, that the Tribunal does not
or cannot believe the appellant or using words to that effect such as ‘Don’t be silly.’ The Tribunal is exercising a statutory power of great importance
to the claimant for refugee status; the language used by the Tribunal in testing the claims must be considered in that light by the properly informed
lay person.

The Full Court held that while there is no clear line between testing and arguing, the relevant part of the course of the hearing took the form of lengthy
statements on the part of the Tribunal rebutting what the claimant said rather than testing the material, leading to the reasonable apprehension that
the Tribunal was arguing its fixed position.

The AAT’s jurisdiction

Arifin and Decision Maker [2013] AATA 502 (15 July 2013)

In April 2012, the applicant sought review of a decision by Centrelink concerning the date from which she was entitled to be paid a disability support
pension. On 4 June 2013, the Administrative Appeals Tribunal (the Tribunal) decided that the applicant was entitled to be paid from a date earlier
than that originally determined by Centrelink.

During the course of the review, the applicant submitted a large bundle of documents to the Tribunal in which she referred to herself as a victim of mental
health issues. She described a range of matters including unfair termination of her employment on the ground of mental health issues, vilification
and physical assault. She also referred to conduct directed at her by the police, Centrelink and her private health fund, and the circumstances in
which her infant son died in 1999, which she said amounted to medical negligence.

In a telephone conversation with a Tribunal officer on 23 April 2013, the applicant advised that she wished to claim compensation for the matters described
in the bundle of documents. Following this conversation, the Tribunal returned the bundle to the applicant with a letter advising it did not have jurisdiction
to determine claims for compensation for discrimination.

On 2 May 2013, the Tribunal received an Application for Review of Decision form from the applicant. The application referred to the bundle of documents
and attached a letter headed ‘Appeal for Claiming of Compensation’. The letter outlined the same matters referred to in the bundle of documents.

The Tribunal found that it has no jurisdiction to consider the matters described in the bundle of documents or in the application for review. While the
Tribunal has power to review a wide range of decisions made by Australian Government ministers, departments and agencies, it does not have a general
power to review any decisions. The Tribunal only has jurisdiction to review a decision if the legislation under which the decision is made gives it
that power (s 25 of the Administrative Appeals Tribunal Act 1975).

At the hearing, the applicant referred to the Disability Discrimination Act 1992 (Cth) which makes it unlawful to discriminate against a person
on the ground of his or her disability in areas including employment, education, accommodation and services. However, nothing in the Disability Discrimination
Act or any other legislation gives the Tribunal jurisdiction to determine complaints of discrimination under that Act. Rather, a person who believes
she or he has been discriminated against can complain to the Australian Human Rights Commission and, if still not satisfied, can take the complaint
to the Federal Court of Australia or the Federal Circuit Court.

The applicant also referred at the hearing to the Commonwealth Disability Strategy (2000) which provides a framework for government departments and agencies
to meet their obligations under the Disability Discrimination Act, and to the Tribunal’s own Disability Action Plan (2008-2011). The Tribunal held
that these documents describe what the Tribunal has to do to meet its obligations under the Disability Discrimination Act. They do not give the Tribunal
jurisdiction to consider whether any other body has met its obligations.

A decision of an administrative character

Von Stalheim v Anti-Discrimination Tribunal [2013] TASSC 24 (4 June 2013)

In June 2003 the applicant made a written complaint to the Tasmanian Anti-Discrimination Commissioner asserting that Deloittes had discriminated against
him and/or victimised him, in contravention of the Anti-Discrimination Act 1998 (Tas) (the AD Act). The Commissioner accepted the
complaint and conducted an investigation. Following that investigation, the Commissioner dismissed the complaint pursuant to s 71(1)(a) of the AD Act.
The applicant then made an application under s 71(3) of the AD Act to the Tasmania Anti-Discrimination Tribunal (the Tribunal) for the dismissal
of his complaint to be reviewed. After conducting a hearing, the Tribunal member affirmed the Commissioner’s decision and the complaint lapsed.

The applicant sought judicial review of the Tribunal’s decision. The Tasmania Attorney-General, intervened, contending the decision in question was not
a ‘decision of an administrative character’ for the purposes of the Judicial Review Act 2000 (Tas) (the JR Act) and therefore, the
Court had no jurisdiction to review the Tribunal’s decision.

The Attorney-General argued that the fact the Tribunal could have found the complaint substantiated and made remedial orders, such as the payment of compensation
which was held to be judicial in nature in Kentish Council v Wood [2011] TASFC 3, meant that the alternate decision to affirm the Commissioner’s
decision was also one of a judicial nature. The Attorney also relied on the fact that the Tribunal, in reaching its decision, had received evidence
from witnesses and permitted cross-examination.

The applicant contended that the Tribunal does not have the power to take evidence during reviews, as distinct from inquiries; that the taking of evidence
for the purpose of reviewing the Commissioner’s decision was irregular; and that the taking of evidence should therefore be ignored for the purpose
of determining whether the decision under review was one of an administrative character.

The Court found that the Tribunal’s decision was one of an administrative character for the purposes of the JR Act. The Court held that decisions
made by the Commissioner at the conclusion of an investigation, and decisions made by the Tribunal upon reviews of dismissals and rejections of complaints,
all have similarities with the sorts of decisions made by magistrates as to whether to commit an accused person for trial, which are administrative
in character: Lamb v Moss [1983] FCA 254. Such decisions, like decisions under the AD Act about rejections, dismissals and referrals
for inquiries, about whether or not there are to be further proceedings of a non-administrative character, are decisions of an administrative character.

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