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Thursday, 21 August 1980
Page: 635


Mr VINER (Stirling) (Minister for Employment and Youth Affairs) - I move:

That the Bill be now read a second time.

The purpose of this Bill is to amend the Administrative Decisions (Judicial Review) Act 1977, to enable that Act to be put into operation. That Act, which has not yet been brought into force for reasons which I shall explain, constitutes one of the principal elements of the reform of administrative law which has been undertaken by this Parliament in recent years. The Act embodies three principal features. These are:

(a)   Review by the Federal Court of Australia by a single simple procedure of administrative decisions made under the authority of Commonwealth and Australian Capital Territory laws;

(b)   The exclusion of any supervisory jurisdiction, by way of judicial review, of State Supreme Courts over officers of the Commonwealth- as that term is used in section 75 of the Constitution- and over the exercise of powers and functions of an administrative nature under Commonwealth statutes;

(c)   The entitlement of a person whose interests are adversely affected by a decision given in the exercise of powers or functions conferred by a Commonwealth statute to obtain a full statement of the reasons for that decision.

At the same time, the Act embodied a parliamentary recognition that a detailed examination of how these principles would operate in practice might reveal circumstances in which it would not be appropriate for them to apply. It provided for regulations to be made to exclude classes of decisions from the operation of the Act. Thus it was always intended that the Act should not be brought into operation until a detailed study had been made, against the background of the principles enacted by the Parliament, of the appropriateness of its application to all classes of administrative decisions. The question of what exclusions, if any, should be made from the operation of the Act was referred to the Administrative Review Council for examination and report. The Council conducted, in consultation with Commonwealth departments and authorities, an intensive investigation of the matter. It reported to the AttorneyGeneral in October 1 978. That report was tabled in the Senate on 21 May 1 980. The greater part of the substance of the report was reproduced in the third annual report of the Council which was tabled last year.

The Council's report has been subject to close study by the Government. The Government came to certain conclusions as a consequence of that study. In the first place, it was clear as a result of the Council's investigation of the matter that there are some circumstances in which it would not be appropriate to lay on decision-makers the obligation to give full written reasons for their decisions, but equally it would not be proper to withdraw their decisions, but equally it would not be proper to withdraw the decisions concerned from review by the Federal Court. The inappropriateness of requiring written reasons to be given will generally arise by reason of the nature of the decision in question. As the Act stands, there is no provision to exclude classes of decisions only from the obligation to give reasons. Exclusion must be from the whole Act. It therefore became clear that the Act ought to be amended to allow some classes of decisions to be excluded from the obligation to give reasons without, at the same time, excluding those decisions from review by the Federal Court. The second conclusion to which the Government came was that those matters proposed for exclusion, before the Act is brought into operation, either from the Act as a whole or from the requirement to give reasons, should be subject to full parliamentary debate. That is, the initial exclusions should be contained in the Act itself, and not left to regulations made under the Act.

Thirdly, it has become clear in the period since the Act was passed, partly as a consequence of judicial decisions and partly as a result of other consideration of the issues involved, that there is a real danger that the obligation to give reasons for decision as presently contained in the Act might lead to the disclosure of confidential information of a personal or business kind. There is a real concern that legislation primarily directed to the accountability of Government for its actions should not be allowed to become a conduit for the disclosure of information of this kind. The issues were explored in some detail by the Senate Standing Committee on Constitutional and Legal Affairs in its examination of the Freedom of Information Bill. Whatever might be the final position under that Bill the Government considers that it would not be proper to bring the Administrative Decisions (Judicial Review) Act into force without some amendment which would provide adequate protection for confidential information. The proposals are contained in new section 1 3A. Because the provisions of that section would constitute a limitation on the entitlement to information provided by the Act as originally passed, it is the Government's intention that the operation of the section should be kept under close scrutiny. It is contemplated that the Administrative Review Council might be asked to report on it after the Act has been in operation for, say, 12 months.

I turn now to a brief description of the detailed provisions of the Bill. The substantive changes are to be found in clauses 6, 7 and 10 of the Bill. One effect of clause 6 of the Bill is that the obligation to give reasons for decision under section 1 3 of the principal Act will not extend to all decisions which are subject to review by the Federal Court. It will extend only to those decisions subject to review by the Federal Court under the Act which are not excluded from the operation of section 1 3 either by proposed Schedule 2 or by regulations made under this Act. In addition, clause 6 would effect a further alteration to section 13. As that section now stands, it is arguable that a decisionmaker may refuse to supply reasons to a person whom he believes not to be entitled to make a request for reasons for a decision only if he obtains an order of the Federal Court to that effect. If that were the effect of the section, it would mean that, no matter how clear the case for refusing reasons to a particular person on the ground that he had no standing, the decision-maker could not refuse to supply a statement without an order of the Federal Court. Accordingly, clause 6 of the Bill will also amend section 13 to put beyond doubt that a decision-maker may refuse a statement of reasons to a person he believes to have no standing without the need for a court order in his favour. At the same time, it obliges the decisionmaker, if he wishes to rely on that power, to inform the applicant for reasons, of his reason for refusing to supply a statement. Further, provision is made for a person who is refused a statement of reasons on that ground to apply to the Federal Court for an order that he is entitled to such a statement.

Clause 7 of the Bill would insert the new section 13A, to which I have already referred. The effect of the new section will be to entitle a decisionmaker to withhold from a statement of reasons certain information relating to the personal affairs or business affairs of a person other than the person requesting the statement of reasons. This may be done if the information was supplied in confidence, if the publication of the information would reveal a trade secret, if the information had been furnished to the department or agency concerned in compliance with a duty imposed by an enactment or if the furnishing of the information would be in contravention of a secrecy provision contained in some other statute. I want to emphasise that the fact that information might be withheld on the grounds that 1 have mentioned does not mean that a statement of reasons may be denied. Only in the case where the omission from a statement of the information in question would render that statement false or misleading would the decision-maker be entitled to withhold a statement of reasons. This is likely to be a rare and exceptional case. In all other cases, the statement must be given but the sensitive information may be omitted. Furthermore, the person who receives the statement must be told that information has been omitted and why it has been omitted. In addition, new section 1 3A is expressed not to affect in any way the power of the Federal Court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to the court if review proceedings are brought under the Act. That is, if proceedings are instituted in the court for the review of a decision, the ordinary rules of discovery and of evidence will apply. The provisions of new section 1 3a should set at rest the genuine fears of those who have thought that the obligation to give a statement of reasons might lead to an unnecessary disclosure of confidential information. At the same time, I would emphasise that any decision to withhold information from a statement of reasons remains subject to review by the Federal Court.

Clause 10 of the Bill would insert two Schedules into the principal Act. Schedule 1 lists those classes of decisions which are to be excluded from the operation of the Act as a whole and which will therefore not be subject to review by the Federal Court. These decisions remain subject to review by the High Court under its constitutional jurisdiction. Schedule 2 lists those classes of decisions which are to be excluded from the obligation to give a statement of reasons. It would unduly lengthen this speech to go through the Schedules in detail. I emphasise, however, that decisions as to what would be excluded have been reached by the Government only after the most careful consideration and with a full recognition of the fact that some persons affected by an excluded decision will be deprived of the benefits of the reforms enacted by the principal Act. Whilst the Act as amended would enable further classes of decisions to be excluded, either from the operation of the Act as a whole or from the obligation to give reasons for decisions, it is not expected that this regulation-making power would be used in respect of decisions under existing statutes unless practical experience clearly demonstrates that the application of the Act to those decisions is quite inappropriate. It is, however, envisaged that there may be from time to time classes of decisions made under future laws which would need to be excluded either from the operation of that Act as a whole or from the obligation to give reasons for decisions.

The remaining provisions of the Bill are substantially of a consequential or machinery character. The Attorney-General had invited the Administrative Review Council to consider the Bill and report to him on its views. The Council made a number of recommendations for relatively minor changes. It also recommended that departments be asked to keep records which would be necessary to enable the operation of the legislation to be monitored. This further report of the Council was tabled in the Senate on 20 August, and copies of the report are available in the Parliamentary Library. I have a limited number of copies in my office.

In the circumstances, the Government has thought it expedient to proceed immediately with the Bill as introduced. The changes proposed by the Administrative Review Council will, however, be kept in mind for future revision of the Act. I assure the House that it would be the Government's intention that the operation of the legislation will be closely supervised and that the Administrative Review Council should be asked to report from time to time on the legislation. I commend the Bill to the House.

Leave granted for debate to continue forthwith.







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