Challenging administrative decisions

31 Aug 2016 - 16:22 | Version 8 |

Contributed by MonicaHurley and JessicaTrappel and current to 1 May 2016

If an administrative decision is made that you disagree with, there are four main ways that you might be able to challenge that decision and ask for it to be reviewed. You can:
  1. Try and negotiate with the decision-maker directly and ask them to reconsider their decision;
  2. Ask to have the decision reviewed on the merits either by internal review or by a tribunal (like the AAT or the NT Civil and Administrative Tribunal);
  3. Go to court and seek judicial review of the decision either under the common law, the ADJR Act or, sometimes, the Judiciary Act 1903 (Cth);
  4. Complain to the relevant Ombudsman.

Negotiation and reconsideration

As a first step, a person who disagrees with a government decision should try to have the decision reviewed by the department that made it and ask for the original decision-maker to reconsider the decision.

It is always useful to try to find out the name and position of the officer responsible for making the decision. This is not always an easy task because, although letters are frequently signed by the Minister or head of the department, the work is often done by a more junior officer. A decision made by a delegate should usually identify the delegate who made the decision.

A person can also approach their local Member of Parliament to have them negotiate on their behalf. A local member can raise a problem with the relevant Minister through parliamentary procedures. Most government departments give priority to inquiries made by local members on behalf of constituents.

Review "on the merits"

If the original decision-maker is unable to reconsider a decision or reconsiders the matter and still decides to make an unfavourable decision, a person can ask to have the decision reviewed on the merits either by internal review or by a tribunal (like the AAT or the NT Civil and Administrative Tribunal).

A review on the merits is a type of review where the new decision-maker puts itself in the shoes of the original decision-maker and considers all the evidence and decides whether a different decision should be made. It is sometimes called a de novo review.

Internal review

In the NT, there is no single system for dealing internally with complaints against government agencies. Most NT Government departments have processes for dealing with internal review of decisions, but many are informal processes that are not published and therefore not easily accessible. Some government agencies have clear guidelines on how to complain. A person can ask the department concerned whether they have an internal review process. It may be necessary to seek advice from the Ombudsman or independent legal advice at this stage.

Most of the larger Federal Government agencies (for example, Centrelink and the Australian Taxation Office) have created specialist internal complaint management systems that enable most routine problems to be addressed quickly and informally.

Time limits

Although negotiation and asking for reconsideration can be a good way to resolve problems and can also be used to get more information about why a decision has been made, strict time limits apply to some areas of review. For example, the amount of back pay a person affected by a Centrelink decision can receive if successful in having a decision reviewed can depend on whether the appeal application was made in time. Some decisions can only be reviewed if an application is made within the designated time limit.

The right to appeal a decision should not be forgotten while a person negotiates. A person should find out what, if any, time limits apply to their appeal rights. The government department or Ombudsman may be able to advise a person about time limits. If not, a person should seek legal advice immediately to ensure they do not lose a right of appeal by failing to act within time limits.

Obtaining reasons for decisions

When a government department makes a decision, a person affected is not always informed of the reasons for that decision. Under the ADJR Act and the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), most Federal Government decision-makers are obliged to provide reasons for most kinds of decisions when requested to do so by a person affected. It is often a good idea for a person unhappy with an administrative decision to request the reasons for the decision because they may help them to understand why the decision was made and help decide whether they have grounds to appeal the decision. For example, a Centrelink decision-maker may have been unaware of a person's medical condition when they rejected their application for a sickness allowance. Once the person sees the reasons for the decision to reject their application, they might accept that it was correct or they can provide a medical report which may convince the officer to change the decision.

Although there is no equivalent NT legislation requiring NT Government departments to give reasons for their decisions, it is still a good idea for a person to request them.

External review

The use of Tribunals

A person who is unhappy with a Federal Government administrative decision may be able to appeal that decision to the AAT and a person who is unhappy with a NT Government administrative decision may be able to appeal to the NT Civil and Administrative Tribunal (NTCAT). It is important to note that, in some cases, an appeal can only be made after the process of internal review has been exhausted.

Why the AAT exists

The decision-making power in any given Federal Government department is governed by a particular Act of Parliament and its Regulations. The Act or its regulations usually outlines any rights of appeal and the grounds on which an appeal can be made. There is no general rule - some Acts give wide rights of appeal, others narrow and some laws have no right of appeal at all. For this reason the Federal Government decided to establish the AAT under the AAT Act. The Act provides for a general right of appeal to a single tribunal on wide grounds that applies to most areas of Federal Government activity. Before appealing a decision to the AAT, a person should first read the Act or regulations relevant to the decision or action they are unhappy with to determine whether they have a right to appeal the decision to the AAT.
Who makes up the AAT?

Members of the AAT are appointed by the Governor-General on the recommendation of the government. Other than the president, who must be a judge of the Federal Court, tribunal members may be legal practitioners, industry representatives, public administrators, academics or someone who has 'special knowledge or skills in relation to any class of matters in respect of which decisions may be made' [see section 7(2) of the AAT Act]. Section 21 of the AAT Act provides for a number of alternative panel structures that can be used for particular matters.
Activities covered by the AAT

The AAT's website lists the Federal Government areas that can have their decisions reviewed by the AAT. The list of areas often changes. For an update on matters that can be appealed to the AAT, check the website or contact the AAT (see Contact points).
Who can apply?

Under the AAT Act, an application for review can be made by or on behalf of any person whose interests are affected by a decision or action. Community groups and public interest organisations can usually access the AAT given that an organisation or association is commonly taken to be affected by a decision or action if that decision or action relates to a matter included in the organisation's statement of objects or purposes. An organisation is, however, only able to seek a review of a decision or action made after it formed or after its statement of objects or purposes included the matter concerned.
Obtaining reasons

One important feature of the AAT is that decision makers who come within its scope are obliged to provide reasons when requested to by a person affected. A person who is considering an appeal can obtain the reasons first and then decide whether they have a good case to appeal the decision.
Presenting a case

When presenting a case before the AAT, an applicant can be represented by a lawyer or any other person. Although proceedings are designed to be informal and straightforward, they can sometimes become legalistic and it is often preferable to have a lawyer represent you.

The AAT is not bound by the rules of evidence and can inform itself in whatever way it considers appropriate. Section 34 of the AAT Act allows for private preliminary conferences to be held between the parties to try and resolve the matter before it goes to a tribunal hearing. Preliminary conferences are an important part of the AAT's procedures and are frequently used.

Sections 37 and 38 of the AAT Act give the AAT wide powers to call for government documents. Although hearings are public, the AAT can decide to hold proceedings in private and restrict the publication of evidence [see section 35 of the AAT Act].
Powers of the AAT

The AAT reviews a decision on the merits and stands in the shoes of the original decision-maker to make the 'correct and preferable' decision. The AAT must give reasons either orally or in writing for its decision. A party can also request that the Tribunal give them written reasons for the tribunal's decision. Unless its powers are limited by the legislation relevant to a particular appeal, the AAT may:
  • affirm a decision
  • vary a decision
  • set aside a decision and:
    • make a new decision in substitution of the old decision; or
    • remit (or return) the matter to the original decision-maker, along with directions or recommendations, for reconsideration.
Costs

Generally, each side to a tribunal hearing must bear their own costs. Legal aid may be available (see Legal aid). In the freedom of information jurisdiction, the tribunal may recommend the payment of costs and it may direct the payment of costs in some matters arising under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Unhappy with a decision?

A person who disagrees with a decision of the AAT can appeal to the Federal Court, but only on a question of law. A person who wants to appeal to the Federal Court should seek legal advice.

NTCAT

NTCAT commenced operations on 6 October 2014 under the Northern Territory Civil and Administrative Tribunal Act 2014 (NT). It is designed to be a one stop shop for reviewing a wide range of administrative decisions. In its review jurisdiction NTCAT will consider and determine applications for review on the merits of decisions made by government officers and form its own view as to what is the correct or preferable decision. It will reach that view by undertaking a thorough reconsideration of the matter during which it may consider facts and materials that were not considered by the original decision maker. The sorts of government decisions that may be reviewed by NTCAT include licensing decisions, planning decisions and decisions about the payment of compensation to victims of crime. The jurisdiction of NTCAT is likely to extend over time, so it is a good idea to check the website to check what types of government decisions it can review. The fees and process for making an application to NTCAT are also on the website at http://www.ntcat.nt.gov.au/.

Judicial review

The NT Supreme Court, the High Court and the Federal Court have the power to conduct judicial review. This means that administrative decisions can be reviewed by a court when the proper legal processes have not been followed by decision-makers.

Judicial review of most decisions made by Federal Government agencies is covered by the ADJR Act. The few Federal Government decisions that are not reviewable under the ADJR Act may be reviewable by the Federal Court or the High Court on the traditional common law grounds.

Judicial review of decisions made by NT Government bodies is covered by common law.

The law governing judicial review is quite complex. For this reason, a person who wants to have a decision reviewed should seek legal advice about the following:
  • whether the decision is able to be reviewed by the courts;
  • whether they have standing to make the application;
  • whether an application for review is likely to succeed; and
  • the cost implications of initiating court proceedings.
Each of these matters can involve complex questions of law. This section on judicial review only provides a brief outline of some of these matters.

It is important to note that a court conducting a judicial review does not review a decision on the merits. It has a much more limited scope of review and can only decide whether a decision was properly made in accordance with the law.
Who can apply?

Courts do not allow everyone who disagrees with a decision made by a government department to bring a case in the court. First, a court needs to decide whether a person commencing legal proceedings has a special interest in the subject matter of the action. This is called standing. A special interest does not have to be purely financial, but it must distinguish the person from an ordinary member of the public. A person denied a benefit or deprived of a licence by a government decision will have standing to sue. Where the government decision is more general, and not specific to the individual, it can be more difficult to establish standing.
What can be reviewed under the ADJR Act?

Under the ADJR Act a person may apply for review of a decision or action that has been made, is being made or will be made. A review can also be sought of a failure to make a decision or to perform a duty if the decision is made under an enactment (such as a Federal Act or regulation).

The ADJR Act does not, however, apply in all cases. It has a schedule that lists decisions to which it does not apply. This schedule should be consulted by anyone thinking about seeking judicial review.
Grounds for review

The grounds on which a decision may be reviewed under the ADJR Act are set out in sections 5 of the Act as follows:
(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
Review of conduct

Under the ADJR Act, conduct related to the making of a decision can be reviewed. Section 6 of the ADJR Act sets out that the grounds for intervention, which are identical to those for reviewing decisions.
Review of failure to make decisions

An individual can also seek a review of a decision-maker failing to perform a duty. Where no time limit is imposed on the decision-maker by the relevant legislation, a person can seek judicial review of the failure to make a decision after a reasonable time. A failure of this type is called unreasonable delay. If a time limit is specified, a review needs to be sought of the failure to make a decision within the time limit.
What can be reviewed under common law?

Under common law, a court can only consider the following grounds when deciding whether to conduct a judicial review:
  • whether the government agency had power, within the law, to make the decision, considering whether the decision-maker only took relevant considerations into account and whether the decision was responsible and based on evidence before the decision-maker; or
  • whether the decision was made according to the rules of natural justice or procedural fairness, including whether the decision-maker was impartial in any outcome of the decision and whether the person affected was given an opportunity to put their case before the decision was made.
Remedies available under the ADJR Act

Under the ADJR Act, a complainant does not apply for specific remedies as they do under common law, they simply apply for an order to review. Section 16 of the Act sets out that the court can make the following orders (in its discretion):
(a) an order quashing or setting aside the decision, or a part of the decision;
(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates; or
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
Remedies available under common law

After satisfying one or more of the grounds for judicial review, the complainant can seek a particular remedy. The remedies available are limited in effectiveness because the courts are concerned only with the legality of the process, not whether the decision was the correct one.

Further, all remedies are discretionary, so that even if grounds for review are established, the court may still decide not to grant a remedy, for example, if there has been a long delay in seeking it, if granting it would be futile or if granting it would cause hardship to others.

The five possible remedies are:
  • declaration: a formal statement from the court that a decision, act or procedure is unlawful;
  • injunction: a power a court has to order a body to take a particular action, called a mandatory injunction, or, more often, to cease an unlawful course of action, called a prohibitory injunction;
  • mandamus: an order requiring a public body or official to perform a duty it has failed to perform. For example, an official might be required to consider a licence application it had previously refused to consider;
  • prohibition: an order to a lower court, tribunal or similar decision-making body to cease proceedings. This order should be sought where a body has failed to exercise its jurisdiction properly or provide natural justice and its proceedings are continuing; or
  • certiorari: used by a higher court to quash a decision made by a lower body where the decision-maker has failed to exercise jurisdiction properly or to apply the rules of procedural fairness or natural justice.
A person should obtain legal advice to determine the appropriate remedy.
Obtaining a judicial review under the ADJR Act

To obtain a review of a Federal Government decision under the ADJR Act, the application must be lodged with the court registry within 28 days of receiving the reasons for a decision in accordance with section 13 of the ADJR Act. Due to the strict time limits, a person who is unhappy with an administrative decision should seek legal advice immediately so they can make an informed decision about what action to take and how to take it.
Obtaining a judicial review under the common law

A person who wishes to apply for judicial review under common law in relation to a decision made by the NT Government or a decision not covered by the ADJR Act should seek legal advice. Judicial reviews of NT Government decisions are usually heard in the NT Supreme Court.
Cost of judicial review

The cost of seeking judicial review can be expensive. A person lodging an application for judicial review will usually have to pay the following costs:
  • court filing fees; and
  • their own legal fees; and
  • if they lose, the legal costs of the other side.
The prospect of footing a large legal bill can be a significant deterrent to those considering judicial review and this is something that individuals need to carefully consider before instituting legal proceedings.

The Ombudsman

Both the Federal Government and the NT Government have an Ombudsman to investigate complaints about decisions and actions of most government agencies, but cannot order an agency to take a particular action or overturn a decision. Some agencies and actions are specifically excluded from the scope of the Ombudsman. For example, the Commonwealth Ombudsman, cannot investigate any action of a judge. There are also practical constraints on the investigation of matters such as prosecution decisions and the actions of regulators and statutory complaint and review bodies. The NT Ombudsman is based in Darwin and the Commonwealth Ombudsman, although based in Canberra, has a representative in Darwin (see Contact points).

An Ombudsman investigates complaints about government departments and authorities and can advise a complainant about the courses of action they can pursue, sometimes directing them to other organisations. The Ombudsman's office is impartial and has the power to look into administrative actions, including:
  • decisions or recommendations;
  • refusal or failure to take action; and
  • delays.
The complaints processes are generally flexible, encourage a non-adversarial and cooperative approach and are less time consuming when compared to the court process.

The Commonwealth Ombudsman can examine the files and records of Federal Government departments and take evidence on oath. This can be done on an informal basis or on a compulsorily basis following a notice issued by the Ombudsman. The Ombudsman does not exercise these powers often, as most agencies are cooperative about most matters. The Commonwealth Ombudsman is also:
  • the Defence Force Ombudsman, who can receive and investigate complaints from serving members or former members of the Defence Force or their dependants;
  • the Law Enforcement Ombudsman who acts, along with Australian Federal Police Professional Standards staff, in relation to complaints about the Australian Federal Police (AFP);
  • the Postal Industry Ombudsman (PIO), who investigates the actions of Australia Post and the limited number of private sector postal operators which have joined the PIO scheme;
  • the Immigration Ombudsman, who deals with complaints about the Department of Immigration and Border Protection; and
  • the Taxation Ombudsman, who deals with complaints about the Australian Taxation Office.
In a similar fashion, the NT Ombudsman can deal with complaints against NT Government departments, the NT police force, local government councils and has similar powers to obtain information and interview witnesses (see Contact points).

It does not cost anything to make a complaint to an Ombudsman. No particular format is required and the Commonwealth Ombudsman is accessible through letter, telephone, email and personal visits. Online complaint forms are also available.

The Commonwealth Ombudsman can commence and conduct an investigation even if there has not been a complaint. This is sometimes done where there is a systemic issue across agencies or where the Ombudsman wishes to satisfy itself about the quality of the agency's internal complaint system. Apart from investigations, the Commonwealth Ombudsman has a special role in overseeing the way that Federal Government agencies use intrusive or controversial powers.

There are also other private industry Ombudsmen who may be able to assist you should your complaint not fall within either the NT Ombudsman or the Commonwealth Ombudsman's jurisdiction.

Complaints an Ombudsman cannot investigate

The Ombudsman does not have the power to investigate certain kinds of complaints and cannot investigate:
  • most actions of private individuals or companies;
  • the actions or decisions of a government Minister, judge or a person performing a judicial-type function;
  • most disputes about employment matters between government departments and their employees (except the Commonwealth Ombudsman can deal with complaints from Defence Force members);
  • the actions of a few Federal authorities that are outside the Commonwealth Ombudsman's jurisdiction; and
  • the actions of the NT Parole Board and some specific statutory entities such as the Office of the Director of Public Prosecutions and the Anti Discrimination Commission (except complaints about inordinate delay).
A person with a complaint that falls into any of the above categories will usually be referred to another source of review.

Making a complaint

Individuals, companies, organisations and associations within and outside Australia can complain to the Ombudsman.

Before contacting an Ombudsman, an individual should (and is sometimes required by the Ombudsman to) try and make an effort to solve the problem directly with the department concerned and exhaust any internal review options that may be available, although sometimes this may not be possible or appropriate.

When lodging a complaint, the complainant should be as specific as possible and provide all relevant information. Where possible, copies of relevant documents should also be provided.

What happens to complaints?

After considering the facts presented, the Ombudsman decides whether to investigate the complaint. Generally, the agency is asked to explain its actions and the Ombudsman informs the complainant of the agency's response. The complainant may be given the opportunity to provide further information or to raise other matters. When the investigation is complete, the Ombudsman contacts the complainant to explain the conclusions the Ombudsman reaches.

Some Ombudsman, including the NT Ombudsman, have the power to deal with a complaint by conciliation or mediation. This provides the parties with an opportunity to talk about the complaint, which is facilitated by a conciliator or a mediator, to try and reach a mutually agreeable outcome.

If the Ombudsman decides not to investigate a complaint, the complainant is given reasons. The Ombudsman may choose not to investigate if, for example, an investigation is not warranted in all the circumstances. The Ombudsman will not usually conduct investigations where a person has a right to appeal to a tribunal that it is reasonable for the person to exercise. In considering whether a right is reasonably exercisable, the Ombudsman might take into account access barriers and the extent to which the review process can look at the action. Where a matter has already been to a court or tribunal, the Commonwealth Ombudsman is generally unable to investigate the matter unless there are 'special reasons'.

Action the Ombudsman can take

After investigating a complaint, the Ombudsman considers whether the decision or action was defective on the grounds that it was:
  • unlawful;
  • unreasonable, unjust or oppressive;
  • based on a law or some other rule which is unreasonable or unjust;
  • improperly discriminatory;
  • based on a mistake about the law or the facts;
  • based on irrelevant factors or made without considering relevant factors; or
  • wrong.
The Ombudsman has the power to make recommendations to the government agency concerned about how to correct a problem and instruct the agency to notify them within a specific time of the steps it has taken to correct the problem. The Ombudsman does not, however, have any power to force government agencies to comply with their recommendations. If the Ombudsman is not satisfied that steps have been taken to correct the problems, they can report the matter to the Minister and the Legislative Assembly (although this is rarely done).

It is important to note that the Ombudsman does not have any power to award compensation to a person affected by a decision.

Case study

David was too old to undertake an apprenticeship when he decided that he wanted a career as a motor mechanic. He joined a well-known car dealership as a car cleaner and worked his way up until he was doing most kinds of mechanical work handled by the qualified tradespeople. During this period, he also took a course in automotive mechanics at a TAFE college. After seven years in the trade, he applied to the Federal Department of Industrial Relations for formal recognition as a motor mechanic. The Department refused on the grounds that his combination of studies and work experience was not equivalent to an apprenticeship. After David sought the assistance of the Commonwealth Ombudsman, the Department reconsidered its decision and decided to grant David a trade test. He passed the test and was issued with a tradesperson's certificate giving him recognition throughout Australia as a motor mechanic.

Freedom of information

Information held by Federal Government departments and agencies may be obtained under the Freedom of Information Act 1982 (Cth) (FOI Act). Under the FOI Act, anyone affected by a government decision can access documents held by a Federal Government body, unless the document (or part of it) falls into one of the exemptions or exclusions contained in the legislation. An Information Commissioner is appointed under the FOI Act and has responsibility for regulating and providing advice on the operation of the FOI Act (see Contact points).

The Information Act 2003 (NT) (Information Act) applies to the NT Government's departments and agencies, referred to in the Act as 'public sector organisations'. It provides for access to government and personal information, protection of privacy and effective and responsible record keeping and records management. Similarly to the federal system, an Information Commissioner (see Contact points) is also appointed under the Act to review decisions of government departments or agencies made in relation to the Information Act. The Information Act also incorporates the Information Privacy Principles (IPPs), which are intended to provide for the protection of personal information that is held by the NT Government. The Information Act applies to government information created after 1 July 1993 and to personal information a department holds, regardless of when it was created or received by the department.

Right of access

Section 11 of the Federal Government's FOI Act gives an individual the right to access any Federal Government agency or official Ministerial document as long as it is not exempt [see sections 31A-47J of the FOI Act].

Key terms are defined in section 4(1) of the FOI Act. 'Document' is given a broad definition and defined to include any written or printed matter, any map, plan or photograph, or any article or thing from which sounds, images or writings are capable of being reproduced.

Section 15 of the NT Government's Information Act gives the community the right to access government information, so long as the information is not exempt [see sections 43-58 of the Information Act]. Section 16 also gives an individual the right of access to, and a right to request correction of, their personal information held by a public sector organisation.

Key terms are defined in section 4 of the Information Act. 'Government information' is defined to mean records required to be kept by NT public sector organisations as evidence of their activities and may include paper records, computer records, audiotapes, videotapes and CDs.

Exempt documents

Federal Government documents that are exempt under the FOI Act include:
  • Cabinet documents;
  • Executive Council documents;
  • internal working documents;
  • documents affecting the enforcement of law and public safety;
  • documents to which the secrecy provisions of the FOI Act apply;
  • documents affecting financial or property interests of the government;
  • documents concerning certain operations of agencies;
  • documents containing material obtained in confidence;
  • documents, the disclosure of which would be in contempt of Parliament or court;
  • privileged documents; and
  • certain documents arising out of the companies and securities legislation.
Agencies may agree to disclose exempt documents.

There are two categories of exemption for NT Government documents under the Information Act:
  1. exemptions to which a public interest test does not apply [see sections 44-49]; and 1 exemptions to which a public interest test does apply [see sections 50-58].

Exempt agencies

A number of agencies are not subject to the Federal Government's FOI Act and several have exemptions for certain types of documents. Exclusions are set out in schedules to the FOI Act and include:
  • agencies engaged in commercial operations;
  • agencies concerned with Aboriginal self-management, such as Aboriginal Lands Councils and Land Trusts;
  • agencies concerned with labour relations;
  • the Australian Secret Intelligence Service;
  • the Australian Security Intelligence Organisation; and
  • the Office of National Assessment.
While the Information Act applies to all NT public sector organisations, some parts of the Act have limited application to some agencies, such as the NT Police, the NT Ombudsman and the various NT courts. The Information Act does not apply to any Federal Government agencies or to private business. The Act also has limited application to government-owned corporations and government business divisions.

Personal documents

An individual's personal records are usually only accessible to that individual. Access is most often sought by those seeking information about their social security, health, education and taxation records. People who find false or misleading statements in their personal records have a right to seek to have them corrected [see Part V of the FOI Act]. The Privacy Act 1988 (Cth) also contains provisions dealing with the handling of personal information.

A request for documents may be refused on the grounds that the work involved in giving access would unreasonably divert the resources of the government agency from its other operations [see section 24 of the FOI Act]. An applicant cannot, however, be refused on these grounds until they have been given the opportunity to discuss the matter and revise their request.

Under section 16 of the NT Information Act, an individual can apply for access to their personal information that is held by a public sector organisation. They may also apply to have their personal information corrected pursuant to that section.

Getting access

Applicants need to be able to locate and describe the information they seek to access. If you are unsure about how to describe or locate the information you are requesting, it is often a good idea to contact the organisation before lodging your application to seek guidance on how you should word your request.

A request for access to information must be made in writing and contain sufficient information to enable the agency to identify the document. Most agencies and departments have their own application forms which are available on their websites. Agencies must deal with requests as soon as possible and generally within 30 days of a request being made [see section 15 of the FOI Act and section 19 of the Information Act].

Access to federal government documents produced before 1 December 1977

It is not generally possible to obtain access to Federal Government documents produced before 1 December 1977. This rule is subject to the following two qualifications:
  • personal records, whenever created, must be released if requested; and
  • documents needed for a proper understanding of main documents must be released.
Important documents held by Federal Government agencies are generally available after 30 years under the Archives Act 1983 (Cth).

Denial of access

If you are unhappy with a decision made under the FOI Act to refuse you access to documents, impose a charge, refuse to change documents that you think are incorrect or let others see documents which you think will unreasonably disclose your personal information, you can:
  • apply for internal review by asking the agency or minister to reconsider their decision, so long as the agency head or minister did not personally make the decision; or
  • request that the Australian Information Commissioner (Information Commissioner) review the decision. This is called an Information Commissioner review.
If you requested an internal review and are unhappy with the result of the internal review, you may also apply for an Information Commissioner review. Applications to the Information Commission need to be in writing and they have a form on their website that they prefer people to use. There is no fee for requesting a review. In most cases you must apply for a review by the Information Commissioner within 60 days of being notified of the decision that you seek to dispute.

The Information Commissioner can also refer issues to the Commonwealth Ombudsman if the matter could be more effectively or appropriately dealt with by the Ombudsman. A person can also complain to the Commonwealth Ombudsman about action taken by a government department or agency in dealing with their FOI request.

If a person is unhappy with the decision made by the Information Commissioner, an application can be made to the AAT. A person has 28 days after receiving the Information Commissioner review decision to apply to the AAT [see section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth)].

The AAT will reconsider the decision and can make a new decision. Section 57A of the FOI Act provides that the AAT has the power to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request but, where it has been established that a document is an exempt document, the Tribunal does not have power to grant access to the exempt content. This means that the AAT's powers to review decisions denying or deferring access are limited with regard to documents affecting national security.

Under the Information Act in the NT, an individual can seek internal review of a decision about an FOI decision. The initial decision will then be reviewed by another person within the same organisation. There is a 30 day time limit to seek review from when an individual receives the notice of the initial decision. If an individual is not satisfied with the result of the internal review, they can complain to the NT Information Commissioner. The time limit for doing this is 90 days of when the individual receives the notification of the internal review decision. If a person is unhappy with the decision of the Information Commissioner, they may be able to appeal their case to the NT Supreme Court [see section 56 of the Information Act].

Costs

Individuals applying to obtain information through the Federal Government FOI process can be asked to pay an application fee and charges for accessing the documents. The charges are capped in relation to documents containing personal information about the applicant. Charges are assessed in advance and, in many cases, a deposit must be paid before access is given to the documents.

People seeking information about entitlements, allowances or benefits under the Seamen's War Pensions and Allowances Act, Social Security Act, Student Assistance Act and Veteran's Entitlement Act are not charged fees. Fees may also be waived for applicants in financial hardship or those applying for documents in the public interest. Applications for an AAT review of FOI decisions will incur a significant fee.

Under the Information Act, an application fee of $30 applies to applications for access to non-personal information. If the information applied for is only your own personal information, no application fee is payable. There are, however, processing fees for the costs of arranging and providing access to personal and non-personal information (for example, the costs of individuals who work for the government reviewing the documents and photocopying those documents). These costs are set out in the Schedule to the Information Regulations. If the application is likely to involve substantial costs, the organisation may give you an estimate of the costs first, or you may request an estimate in your application.

Contact points

Administrative Appeals Tribunal
Contact number: 1800 228 333
Email: sscsdivision@aat.gov.au (for Centrelink and child support cases)
mrdivision@aat.gov.au (for migration and refugee cases)
generalreviews@aat.gov.au (for all other types of cases)
Website: http://www.aat.gov.au/

Northern Territory Civil and Administrative Tribunal
Contact number: (08) 8944 8720 or 1800 604 622
Email: AGD.ntcat@nt.gov.au
Website: http://www.ntcat.nt.gov.au/index.shtml

Office of the Australian Information Commissioner
Contact number: 1300 363 992
Email: enquiries@oaic.gov.au
Website: https://www.oaic.gov.au/

Commonwealth Ombudsman
Contact number: 1300 362 072
Website: http://www.ombudsman.gov.au/

Northern Territory Ombudsman
Contact number: (08) 8999 1818 or 1800 806 380
Email: nt.ombudsman@nt.gov.au
Website: http://www.ombudsman.nt.gov.au/

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