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Pitfalls for the unwary in pursuing review rights

By Peter Timmins

Those who pursue Freedom of Information matters through the available review mechanisms can easily be undone by some of the legal technicalities. In NSW for example there have been a spate of review applications rejected on grounds that the Administrative Decisions Tribunal has no jurisdiction. Its a good reason why another review mechanism that doesn't depend on the technical application of words in an act, such as a general power conferred on an information commissioner, would make a lot more sense. Here are three examples.

In this case (an appeal is pending) the Tribunal decided it had no jurisdiction to review a decision, despite the fact that the NSW Department of Corrective Services had incorrectly told the applicant that she had no right to internal review and therefore had to go direct to the Tribunal. The Department had got it wrong in telling her that the original decision had been made by the Acting Head of the Department - it hadn't. The applicant relied on what the Department said, but this cut no ice with the Tribunal. It decided it had no discretion in the matter. The applicant's failure to seek internal review meant the Tribunal had no jurisdiction to consider the application.

In another case a third party consulted prior to release of documents objected to disclosure and lodged an application for internal review when the Department of Lands decided to provide the documents to the applicant. The Department confirmed the original decision and sent the third party a notice including information about review rights to the Tribunal. The words were a bit ambiguous and the third party filled in the form and thinking this was what was required mistakenly sent it back to the Department. By the time the application eventually found its way to the Tribunal, the 60 day time limit had passed. The Tribunal found that it had no discretion to consider a late application, concluding that "this is an unfortunate outcome". Indeed.

In a third case on the last day for the making of a determination, the NSW Police had written and posted to the applicant a request for an advance deposit. The day before the letter was received by the applicant, he having not heard a word, lodged an application with the Police for internal review of the initial request. The Police Service said that it would not consider the request as it was not required to do so, having asked for but not recieved an advance deposit. The applicant went to the Tribunal that decided that the "making of a request" for an advance deposit had occurred when the letter was sent, not when it was received by the applicant. He was not entitled to seek internal review by the Police as there had been no deemed refusal. The Tribunal again lacked jurisdiction. The Tribunal concluded:

"It is clearly unfortunate that these events have come to pass in this way and that time will be lost by the parties in processing the application, but the Tribunal has no latitude that it can exercise when jurisdiction is absent".

It's no wonder that those who represent themselves in these proceedings often scratch their head about the intricacies of the Act.

Full post as published by Open and Shut on February 26, 2008 (boomark / email).