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 arrang

Administrative Law Spring 2024 Assignment (Letter of Advice)

Marks, learning outcomes and assessment criteria

This assessment is worth 45% of the final mark in this unit. The learning outcomes and assessment criteria are contained in the subject Learning Guide. The content of the letter of advice (and the accompanying extra question for JD students) is worth 35% and the research and footnotes are worth 10% combined.

Submission

Assignments must be lodged via Turnitin on vUWS only, as detailed in the subject Learning Guide. The submission link will be opened a week before the assignment is due.

Any late assignments must be submitted to the Late Administrative Law Assignment Turnitin link.

No other methods of submission will be accepted.

If students need to apply for an extension, they should apply for an Extension or a Disruption to Studies provision via Western Now.

An application for an extension does not automatically mean that an extension will be approved.

Assessments will not be accepted, under any circumstances, after the marked assessment task has been returned to students.

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. Marks may be deducted if these limits are exceeded.

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 Deborahs 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)

END OF ASSIGNMENT

LETTER OF ADVICE

To: Angela

From: Fatima

Re: Legal advice on your FOI application

Date:

Private and Confidential

Introduction

Dear Angela,

This letter gives you an idea about both judicial and non-judicial remedies open to you because of the Department of Defenses denial of your FOI Act application. The rejection was under sections 33(a) and 47C of the FOI Act; the exemptions invoked were national security and deliberative processes. Nevertheless, heated remarks from the Defense Minister in regard to your political affiliations may indicate apprehended bias that may render the decision inadmissible. In this letter I shall discuss the judicial and merits review choices and compare it with cases like Bob Hawkes and evaluate the extent of success and discuss the exemptions and biases.

This letter of advice will outline the judicial and merits review options available, including the likelihood of success and the impact of the exemptions and allegations of bias.

2. Factual Background

The Department responded to your Freedom of Information (FOI) request, submitted on 30 July 2024, concerning the disposal of sewage from AUKUS submarines. The purpose of your request was to obtain information regarding the environmental and defense risks associated with this disposal.

On 30 August 2024, the Department rejected your request, citing the following exemptions under the FOI Act:

Section 33(a): This provision exempts documents from disclosure if their release would pose a threat to national security, defense, or international relations.

Section 47C: This section protects documents essential for internal communication within government departments, allowing for the deliberative processes necessary for governmental functions.

However, the Department did not provide any further explanation as to how the disclosure of these documents could pose such threats. Furthermore, the defence minister publicly stated that the refusal was based on your political affiliation, specifically referencing socialism. This statement raises concerns of both actual and perceived bias, as it indicates that the decision may have been influenced by improper considerations rather than legal grounds, thus compromising procedural fairness.

3. Legal Framework and Issues

This section outlines the legislative framework relevant to your case concerning the FOI exemptions, and the potential avenues for review.

Relevant Legislation

Freedom of Information Act 1982 (Cth):

Section 33(a): This provision allows the department to exempt documents that when produced may be prejudicial to the nations security, defense or foreign relations. This is the reason the Department of Defense used the excuse of national security over the disposal of sewage from AUKUS submarines to dismiss Angelas request . However, the department must go forward and give something that would show how disclosure would be so threatening.

Section 47C: This section shields deliberative process documents which would be crucial in free flowing communication within the government. However, if there are environmental issues at play, this exemption may be set aside because, generally, the public interest would benefit from disclosure of environs pts .

Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act):

This Act gives legal ground for appealing to the procedural unfairness, bias and failure of the department to explain why exemptions were used.

Case Law

Patrick and Director-General Australian Submarine Agency [2024] AATA 2411: This is important in order to deal with the FOI requests as regards defense matters. The Tribunal was correct in finding that exemptions pursuant to s 33(a) for national security were sound but it should have considered a partial disclosure. Angela could claim that the same should have been done to her .

Rex Patrick and Department of Defence [2021] AICmr 39: In this case, the Information Commissioner pointed to the abuse of the s 47C exemption. This supports Angelas thesis that it is possible that the deliberative process exemption has been abused especially where the environmental part of the documents is in the publics interest.

Key Legal Issues

Application of Exemptions (s 33(a) and s 47C): Where there is public interest in disclosure, the department has to give better reasons why such exemptions should be allowed.

Bias and Improper Purpose: Specifically, the Defense Minister opens biases of Angela political activities and affiliations into the discussions. Both reasonable and perceived bias can be cited in court because such comments indicate that the decision was biased by improper considerations .

4. Judicial Review

Judicial Review

According to the principle of judicial review, decisions made by administrators are legitimate and free from procedural unfairness. In Angelas case, the Federal Court of Australia would consider bias, inadequate reason, and the decision being Wednesbury unreasonable. Judicial review is concerned with the legal propriety of decisions to be made rather than their quality .

Grounds for Judicial Review

Bias:

Angelas case is an example of both real and perceived bias because the Defence Minister has publicly expressed his dislike for her politics. In Australian law, those who make decisions are required to be unbiased and any decision given while in such bias can be set aside. In legal terms, actual bias happens where a decision maker allows improper considerations to influence his decisions and apprehend bias where the observer feels that there is a possibility of bias .

The two types of bias were defined in the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 to render a decision ineffective. Of the three, apprehended bias is even more apposite in Angelas case since the Minister makes comments that are improper to her political beliefs, which may have influenced the decision. Any person would reasonably tend to believe that such a decision was informed by those non-legal factors thus breaching the principle of procedural fairness .

Administrative natural justice or justice dealt with in procedure requires that a decision must not be influenced by bias and the affected parties must be heard. This is fully explicable by the fact that the Minister had a political rather than a legal rationale for the FOI decision. Angela has a lot of grounds to prove apprehended bias in the decision making process .

Failure to Provide Adequate Reasons:

Another ground of judicial review is that the Department has not offered sufficient reasons for invoking sections 33(a) and 47C of the FOI Act. These sections permit exclusions in respect of national security and matters that are the subject of active consideration and consultation, but the Department did not demonstrate how these exemptions bore any relationship to Angelas request. Where Angela has insufficient grounds to challenge or seek a review of the decision, the necessitation of her rights to procedural fairness is impaired .

In the Public Service Board (NSW) v Osmond [1986] HCA 7 the principle was established that the decision-maker is not under any general legal duty to provide reasons for and of the decision made but there have been subsequent cases as to when the decision-maker is under a duty to give reasons. In the case of Minister for Immigration and Citizenship v Li [2013] HCA 18, The High Court underscored that the decisions have to be reasonable and also the decision maker must have reasonable justification. The previous case of Angela shows that if the reasons for the exemptions are not well articulated, the decision in question may be legally unreasonable .

5. Merits Review (Non-Judicial Review)

Merits Review refers to the Non-Judicial Review.

The AAT undertakes merits review, which makes it possible for the evaluation of a decision based on the legal and factual analysis. This is quite different from judicial review where a court focuses itself with legal mistakes made by the decision-making body Merits review on the other hand, entails the court to assess the decision on merit to adequately conclude that the right decision was made in the backdrop of all materials in the case. In Angelas case, the AAT would have examined the circumstances surrounding the Departments application of section 33(a) and section 47C of the FOI Act before having a hard look at the question of whether partial disclosure would adequately address the threat to national security while at the same time uphold the principles of environmental protection .

Challenge to Section 33(a):

Section 33 (a) excludes such documents that might be prejudicial to the interest of national security or international relations. The Tribunal could make further investigations if that information really is life-threatening, or whether there are some portions that Angela wants to be released without putting the security of the nation at risk.

Review of Section 47C:

Section 47C exempts documents concerning consideration by the government. The Tribunal will then determine whether the exemption was properly applied and as to whether the information in question contains relevant public interest information, particularly environmental, which might warrant disclosure .

Procedure and Costs:

Angela can seek merits review whereby he or she applies for reconsideration with the AAT. The process has a filing fee of $1,011 and usually lasts between 6 and 12 months. The AAT has powers to replace its decision for the original decision; it provides an avenue for a full reconsideration.

Likelihood of Success:

Since the exemptions may have been over-applied, there is every reason for Angela to consider herself lucky and go for it. The Tribunal may acknowledge that other related national security dangers can be avoided through the removal of parts of the text containing sensitive information so that the publication of the rest of the information is allowed .

6. The difference between judicial review and the merits review

Hence, due to the issues of bias and lack of sufficient reasoning, Angela should opt for judicial review. The public comments made by the Defense Minister regarding her political beliefs raise apprehended bias which thus provides a solid ground for a procedural fairness argument. Judicial review can therefore deal with the Ministers unlawful motives and the Departments insufficient reasons under sections 33(a) and 47C of the FOI Act.

While merits review through the AAT provides a wide ranging re-evaluation of the merit of the decision, it tends to be slow and costly. However, the AAT could provide a new decision and that is where the AAT might identify that the Department has regrettably breached the exemptions in the first place. For example, if the Tribunal feels that partial disclosure is possible under s 47C, this situation will be beneficial .

Risk and Benefit Analysis:

Although judicial review is more expeditious, its outcome may be no more than nullification of the decision and the remand to the trial court. Conversely, merits review, even if it is likely to take longer time to be complete, has the potential of the replacing the decision. Since the rationale for bias is considerably compelling, the use of the precautionary court action of JR should be pursued first, followed by merits review if required .

7. Standing and Jurisdiction

In the case of Angela, standing is well defined because she is the applicant of the FOI request that was refused. In both judicial and merits review procedures the individual who has been directly impacted by the administrative decision and who has the right of the applicant in the matter has the right to apply for a review. Hence, Angela can seek judicial review in Federal Court of Australia and merits review in the Administrative Appeals Tribunal (AAT) under the Freedom of Information Act 1982 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) .

Judicial Review: Federal Court has the power to decide whether the decision was legal or not for example the court may decide whether or not there was bias or procedural unfairness.

Merits Review: The AAT has the jurisdiction to review the merits of the decision and therefore facts can be put into consideration together with the interest of the public.

As the law stands and since it has been ascertained that the Department was inoperable of the Acts, Angela has the prerogative to seek for judicial and merits review of the decision made by the Department .

8. The Procedure, Expense and Duration

In a case of judicial review, Angela has to approach the Federal Court of Australia under the ADJR Act. The application must include a statement of circumstances that the decision made is unlawful for instance, on the grounds of bias or the lack of reasons. The filing fees are between $735 and $1,605 depending on whether Angela can afford the fees while the time that it will take to complete the process is between several months depending on the complexity of the case and the availability of a trial.

For merits review, Angela can apply for a review with AAT as this offer full review on the decision made. In order to file for merits review one is required to deposit $1,011 and it may take 6-12 months depending on the type of case. To conform to the legal requirements every process must be documented with reasons for any decision made and legal opinions backed with evidence and legal precedents .

9. Conclusion and Recommendation

Therefore, unlike the conclusion of the study, the recommendation should be made more assertively. As such, one could not be wrong to argue that the judicial review has better chances of success as a result of the bias issues and the procedural allegations flowing therefrom disclosed by the Disclosure of Angelas political affiliation by the Defense Minister. Hence, it is suggested that judicial review ought to form the first ground as it covers the main questions of procedural neutrality and bias.

Taylor also points out that it is also necessary to stress that merits review is the second level of the review. This could be done in the merits review where a more elaborate analysis of the Departments use of the exemptions under section 33(a) and 47(c) can be made where the overemphasis on the national security and deliberative process exemptions can be challenged. But remember that judicial review is tactfully more blaring in the case of Angela because it squarely deals with the procedural evils as unlawful in the decision making. So the recommendation will therefore, eliminate the Elements which were not properly aligned to make up a well ordered recommendation based on the legal status of Angela.

10. Final Formalities

Yours sincerely,

Fatima

Please do not hesitate to contact me should you have any question or if you need any further clarification. I am willing to assist in the following other actions as we begin planning on how to appeal against the Departments decision