Form of assignment
The assignment is to be written as a submission to your law firm, setting out both (1) the relevant and strongest grounds of review and (2) the most advisable avenues of review available. There must be correct and full citations to the relevant legislation and case law, as per the Australian Guide to Legal Citation.
Part 1: Non-judicial review
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.
A.
You must outline the merits issues and legal issues that you consider relevant. Such issues must be supported by references in the footnotes to the relevant legislation, guidelines and cases.
B.
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.
Part 2: Judicial Review
This part requires advice on the possibility of challenging, via judicial review, the decision made by the original decision maker or relevant tribunal.
A.
You must advise whether your client has standing, and which courts have jurisdiction.
B.
You must outline the grounds that may be open to challenge the administrative decision, indicating which you think are the strongest grounds.
C.
No reference is needed to the remedies that are available, but the likely time and fees of any action must be indicated.
Remember: non-judicial review is also based on the relevant legislation and cases. Any legal argument already made in Part 1 should not be repeated, but instead referred back to.
Fact Scenario
Your client, Jasmine is a WSU student who opposes the plans of the federal government to increase student fees and impose further financial cuts on universities. She applied in writing within the required time period under the Freedom of Information Act 1982 (Cth) (FOI Act) for access to (a) the federal Education Minister’s diary in a ‘weekly format’ for the three months leading up to the 9 May 2017 budget and (b) any background or briefing documents referred to in the diary relating to the preparation of the budget.
In a written notice, within the time specified by the Act, the Minister’s office refused access to the material, stating as its reasons:
(1)
The diary was exempt from disclosure because its entire contents, including references to meetings with department officials and other cabinet ministers, were private, not intended for public release and did not pertain to government affairs.
(2)
Even if parts of the diary were covered by the Act, it would take an estimated 600 hours to determine which parts of the diary were not exempt, and this would unreasonably interfere with the work of the Minister and unreasonably divert the resources of his Chief of Staff, who was the only person in the Minister’s office delegated to respond to FOI requests.
(3)
Even if parts of the diary were covered by the Act, both the diary and any background or briefing documents referred to in the diary are exempt from disclosure as deliberative processes documents.
The notice offered Jasmine a two-day consultation period in which to consult with the Chief of Staff about possibly revising her request, provided that she come to Canberra for the consultation because the issues were too confidential to discuss on the phone or on-line.
Jasmine replied in writing, rejecting the consultation offer as inadequate, financially prohibitive and insulting, and stating that she did not wish to review her request because she was determined to expose the government’s political agenda to slash education funding.
After receiving Jasmine’s response, the Minister told parliament that she had no intention of giving Jasmine access to any documents because Jasmine was a ‘radical activist’ and a ‘socialist’ whose motives were to cause public confusion, embarrass the government and incite a rebellion among students.
Jasmine now wants to challenge the decision by the Minister’s office to refuse her FOI requests.
This assignment requires research to find the relevant legislation, guidelines and cases. In your submission, you must examine, apply or distinguish all applicable cases, including (but not limited to) the following decisions:
Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of Information) [2015] AATA 995
The Australian and Prime Minister of Australia [2016] AlCmr 84
Paul Farrell and Prime Minister of Australia (Freedom of Information) [2017] AlCmr 44
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