Decision not to continue to undertake an IC review under s 54W(b) of
the Freedom of Information Act 1982
Information Commissioner review applicant Marius M
Respondent
Australian Public Service Commission
Decision date
19 September 2025
OAIC reference number
MR23/01386
Respondent reference numbers
LEX 679; LEX 811
Decision
1. I refer to the application made by Marius M (the applicant) for Information
Commissioner review (IC review) of a decision made by the Australian Public
Service Commission (the Respondent) under the
Freedom of Information Act 1982 (Cth) (the FOI Act).
2. As a delegate of the Information Commissioner, I am authorised to make
decisions under s 54W(b) of the FOI Act.
3. Under s 54W(b) of the FOI Act, I have decided not to continue to undertake this
IC review on the basis that the interests of the administration of the FOI Act
make it desirable that the IC reviewable decision be considered by the
Administrative Review Tribunal (the ART). A copy of the IC reviewable decision is
attached. The effect of my decision is to allow the applicant to apply directly to
the ART.
Background
4. On 8 August 2025, the Office of the Australian Information Commissioner (the
OAIC) wrote to the parties to advise of their intention to finalise this IC review
under s 54W(b) of the FOI Act on the basis that it is in the interests of the
administration of the FOI Act that the IC reviewable decision be considered by
the ART.
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
oaic.gov.au/enquiry
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
link to page 2 link to page 2
5. The parties were invited to provide reasons if they disagreed with the proposed
finalisation of this IC review by
22 August 2025.
6. The applicant provided a response, opposing the proposed recommendation.
7. The Respondent declined to comment on the proposed recommendation.
Discretion not to continue to undertake an IC review
8. Under s 54W(b) of the FOI Act, the Information Commissioner may decide not to
undertake a review, or not to continue to undertake a review, if the Information
Commissioner is satisfied that the interests of the administration of the FOI Act
make it desirable that the IC reviewable decision be considered by the ART.
9. The effect of such a decision would be to finalise this IC review application and
allow the applicant to apply directly to the ART. The applicant would then have
28 days to lodge an application with the ART in accordance with ordinary ART
processes. ART filing fees may apply
.1
10. The discretion in s 54W(b) of the FOI Act may be exercised where the Information
Commissioner is satisfied that the interests of the administration of the FOI Act
make it desirable that the IC reviewable decision be considered directly by the
ART, rather than initially by the Information Commissioner.
11. The Explanatory Memorandum to the
Freedom of Information Amendment
(Reform) Bill 2009, which created s 54W(b), states:
One of the reasons for retaining a right of review to the AAT is that, as an experienced review
body, the AAT can properly deal with highly contested applications. This provision enables
the Information Commissioner to decline to undertake a review if satisfied it would be more
appropriate and efficient for the application to be made directly to the AAT
.2
12. This is also referred to in the Guidelines issued by the Australian Information
Commissioner under s 93A (the FOI Guidelines) at [10.104] – [10.105], which
state:
The IC may decline to undertake an IC review if satisfied ‘that the interests of the
administration of the [FOI] Act make it desirable’ that the [ART] consider the IC reviewable
decision (s 54W(b)). It is intended that the IC will resolve most IC review applications.
1 https://www.art.gov.au/applying-review/other-decisions#section-0-3.
2 Noting that the former Administrative Appeals Tribunal (the AAT) was replaced by the ART on 14 October 2024:
https://www.ag.gov.au/legal-system/new-system-federal-administrative-review.
2
link to page 3
Circumstances in which the IC may decide that it is desirable for the [ART] to consider the IC
reviewable decision instead of the IC continuing with the IC review include:
• where the IC review is linked to ongoing proceedings before the [ART] or a court
• where there is an apparent inconsistency between earlier IC review decisions and [ART]
decisions
• where, should the IC review application progress to an IC review decision, the IC review
decision is likely to be taken on appeal to the [ART] on a disputed issue of fact
• where the FOI decision under review is of a level of complexity that it will be more
appropriately handled through the procedures of the [ART]
• where there may be a perceived or actual conflict of interest in the IC undertaking the IC
review, including where:
o the FOI request under review was made to, or decided by, the IC or their
delegate
o the FOI request or documents at issue relate to specific functions exercised by
the IC under the Privacy Act
o the IC review applicant has active matters in other forums, including the [ART]
or Federal Court, and the IC is the respondent
• where consideration by the [ART] will further the objects of the FOI Act, particularly in
relation to the performance and exercise of functions and powers given by the FOI Act
to facilitate and promote public access to information, promptly and at the lowest
reasonable cost (s 3(4))
.3
The OAIC may take into account the views of the parties to an IC review before concluding
an IC review pursuant to s 54W(b). While the IC will consider the views of the review parties
before finalising an IC review under s 54W(b), the decision whether it is more appropriate for
the [ART] to consider the IC reviewable decision ultimately rests with the IC. Through the
functions conferred on the IC under the FOI Act, the IC will be in the most informed position
to determine whether the interests of the administration of the FOI Act make it desirable for
the [ART] consider the IC reviewable decision.
13. The circumstances in which the Information Commissioner may consider it
desirable that the ART consider the IC review application, as outlined in the FOI
Guidelines above, are not exhaustive. There will be circumstances that are not
listed where the Information Commissioner may deem it desirable to refer the
matter to the ART.
3 Footnotes omitted.
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14. The objects of the FOI Act provide that functions and powers under the FOI Act
are to be performed and exercised, as far as possible, to facilitate and promote
public access to information, promptly and at the lowest reasonable cost.
15. Further, in accordance with these objects, paragraph [10.18] of the FOI
Guidelines provides that IC reviews are intended to be a simple, practical and
cost-efficient method of external merits review.
Reasons for decision
16. In deciding whether to exercise the discretion not to continue to undertake this
IC review, I have considered:
• the applicant's submissions opposing the finalisation of this IC review under s
54W(b) of the FOI Act
• the FOI request
• the IC reviewable decision
• the issues for determination
• the Explanatory Memorandum to the
Freedom of Information Amendment
(Reform) Bill 2009 which
created s 54W(b) of the FOI Act
• that the objects of the FOI Act provide that functions and powers under the
FOI Act are to be performed and exercised, as far as possible, to facilitate and
promote public access to information, promptly and at the lowest reasonable
cost, and
• that in accordance with the objects of the FOI Act, paragraph [10.18] of the
FOI Guidelines provides that IC reviews are intended to be a simple, practical
and cost efficient method of external merit review.
17. In particular, I have considered the reasons provided by the applicant in
opposing the proposed recommendation to finalise this IC review under s
54W(b), which include but are not limited to the following:
• finalisation under s 54W(b) is contrary to the objects of the FOI Act
• the applicant would be required to pay an application fee to the ART
• this matter is distinguishable from other matters that the applicant
identified on the right to know web page due the scope of the FOI request
4
link to page 5
• there is no evidence to support a conclusion that the ART will hear the cohort
of matters together
• this IC review is not complex
• the OAIC is a more appropriate forum for this matter given its inquisitorial
powers, and
• before transferring this matter, the OAIC should require the APSC to provide
a statement of reasons
.4
18. I have considered the issues in this matter and I am satisfied that it is in the
interests of the administration of the FOI Act that the IC reviewable decision be
considered by the ART because:
• I am satisfied that this matter is of a level of complexity that would be more
appropriately handled through the procedures of the ART. This is because this
IC review is part of a larger cohort of complex and interrelated matters
currently before the OAIC involving the same or similar FOI requests, all bearing
some relationship to the investigation of an allegation made under the
Public
Interest Disclosure Act 2013 (the PID Act), and extending to the consideration of
a variety of exemptions and access refusal claims. Given this, it would be more
efficient for the related matters to be progressed together. This would involve a
high degree of complexity and a substantial allocation of the OAIC’s resources,
and the OAIC has already been delayed in progressing this IC review for this
reason. Any further delay may adversely impact the merits review process as
relevant information or evidence may be diminished as a result
• I consider there to be a significant likelihood that any decision made by the
Information Commissioner or their delegate under s 55K of the FOI Act in this IC
review would be appealed by one or both of the parties, in light of the views the
parties have expressed to date, and
• the ART’s more flexible and expansive processes and powers (including its
alternative dispute resolution provisions and remittal powers) mean that the
ART may be better suited to manage the significant challenges involved in case
managing these IC reviews in a consistent and efficient manner.
4 I note the Respondent provided the applicant with a statement of reasons dated 17 November 2023 refusing
access based on a practical refusal reason.
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19. For these reasons, as a delegate of the Information Commissioner, I have
decided to exercise my discretion to decide not to continue to undertake this IC
review under s 54W(b) of the FOI Act. I confirm that this IC review is now closed.
Next steps
20. The applicant now has 28 days from the date of this notice to make an
application for review of the IC reviewable decision to the ART in accordance
with s 57A of the FOI Act.
21. If either party disagrees with my decision under s 54W(b) of the FOI Act,
information about your review rights is set out below.
Yours sincerely
Toni Pirani
Acting Freedom of Information Commissioner
19 September 2025
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Review rights
Judicial review
You can apply to the Federal Court of Australia or the Federal Circuit Court for a
review of a decision of the Information Commissioner if you think that a decision by
the Information Commissioner not to review or not to continue to undertake review
of your IC review application under the
Freedom of Information Act 1982 (the FOI Act)
is not legally correct. You can make this application under the
Administrative
Decisions (Judicial Review) Act 1977.
The Court will not review the merits of your case but it may refer the matter back to
the Information Commissioner for further consideration if it finds the decision was
wrong in law or the Information Commissioner's powers were not exercised properly.
An application for review must be made to the Court within 28 days of the OAIC
sending the decision or determination to you. You may wish to seek legal advice as
the process can involve fees and costs. Please contact the Federal Court registry in
your state or territory for more information, or visit the Federal Court website at
http://www.fedcourt.gov.au/.
Making a complaint to the Commonwealth Ombudsman
If you believe you have been treated unfairly by the OAIC, you can make a complaint
to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services
are free. The Ombudsman can investigate complaints about the administrative
actions of Australian Government agencies to see if you have been treated unfairly.
If the Ombudsman finds your complaint is justified, the Ombudsman can
recommend that the OAIC reconsider or change its action or decision or take any
other action that the Ombudsman considers is appropriate. You can contact the
Ombudsman's office for more information on 1300 362 072 or visit the
Commonwealth Ombudsman’s website at http://www.ombudsman.gov.au.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxxxx@xxxx.xxx.xx. More information is available o
n the Access our information
page on our website.
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