Decision not to undertake Information Commissioner review under
s 54W(b) of the Freedom of Information Act 1982
Information Commissioner review applicant
Verity Pane
Agency
Office of the Australian Information
Commissioner
Decision date
26 February 2024
OAIC reference number
MR23/00027
Agency reference number
FOIREQ22/00357
Decision
1. I refer to the application made by Verity Pane (the FOI applicant) for Information
Commissioner review (IC review) of a deemed access refusal decision made by the
Office of the Australian Information Commissioner (the Agency) on 29 November 2022
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 undertake an 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 Appeals Tribunal (AAT).
4. A copy of the IC review application is attached. The effect of my decision is to allow the
FOI applicant to apply directly to the AAT, in accordance with s 57A of the FOI Act.
Background
5. On 5 January 2024, the OAIC wrote to the FOI applicant to advise of its intention to
recommend that a delegate of the Information Commissioner finalise the IC review
application 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 AAT.
6. On 23 January 2024, the OAIC followed up this correspondence alerting the applicant
that we had not received a response disagreeing with the recommendation. The OAIC
1300 363 992
T +61 2 9942 4099
GPO Box 5288
www.oaic.gov.au
oaic.gov.au/enquiry
F +61 2 6123 5145
Sydney NSW 2001
ABN 85 249 230 937
advised the applicant that their IC review was likely to be finalised soon and that they
will have 28 days to lodge an application with the AAT from the date of decision.
7. Based on the information before me, the OAIC has not received a response from the FOI
applicant.
Discretion not 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 AAT.
9. The effect of such a decision would be to finalise this IC review application and allow
the FOI applicant to apply directly to the AAT. The FOI applicant would then have
28 days to lodge an application with the AAT in accordance with ordinary AAT
processes. AAT 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 AAT, 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.
12. This is also referred to in the Guidelines issued by the Australian Information
Commissioner under s 93A (FOI Guidelines) at [10.88] – [10.89], which state:
The Information Commissioner can decline to undertake a review if satisfied ‘that
the interests of the administration of the [FOI] Act make it desirable’ that the AAT
consider the review application (s 54W(b)). It is intended that the Commissioner will
resolve most applications. Circumstances in which the Commissioner may decide
that it is desirable for the AAT to consider a matter instead of the Commissioner
continuing with the IC review include:
1 https://www.aat.gov.au/apply-for-a-review/freedom-of-information-foi/fees
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• where the IC review is linked to ongoing proceedings before the AAT or a court
• where there is an apparent inconsistency between earlier IC review decisions and
AAT decisions
• where, should the application progress to an IC review decision, the IC review
decision is likely to be taken on appeal to the AAT on a disputed issue of fact
• where the FOI request under review is of a level of complexity that would be more
appropriately handled through the procedures of the AAT
• where there may be a perceived or actual conflict of interest in the Commissioner
undertaking review, including where:
o the FOI request under review was made to, or decided by, the
Information Commissioner or their delegate
o the FOI request or material at issue relate to specific functions
exercised by the Information Commissioner under the Privacy Act
o the FOI applicant has active matters in other forums, including the
AAT or Federal Court and the Information Commissioner is the
respondent
• where consideration by the AAT would 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)).
13. The circumstances in which the Information Commissioner may consider it desirable
that the AAT 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 AAT.
Reasons for decision
14. 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
AAT because the OAIC is the primary decision-maker of the decision under review.
15. In deciding whether to exercise the discretion not to undertake a review, I have
considered the perceived conflict of interest in the Information Commissioner reviewing
a decision made by their own agency.
16. For these reasons, as a delegate of the Information Commissioner, I have decided to
exercise my discretion to decide not to undertake an IC review under s 54W(b) of the
FOI Act.
17. I confirm that this IC review is now closed.
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Next steps
18. The FOI applicant now has 28 calendar days from the date of this notice to make an
application for review of the IC reviewable decision to the AAT, in accordance with s 57A
of the FOI Act.
19. 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
Heath Baker
Director
Freedom of Information Branch
Office of the Australian Information Commissioner
26 February 2024
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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 this 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 a
t 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 on our website.
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