21 May 2010

Bienstein Freedom of Information appeal dismissed by Federal Court

Yesterday the full Federal Court of Australia issued a judgment in Bienstein v. Attorney General [2010] FCAFC 45 (20 May 2010) dismissing the Freedom of Information Act appeal and awarding costs to the Government.

Helen Bienstein attempted to argue that a decision of the Administrative Appeals Tribunal ("AAT") involving the Freedom of Information Act 1982 (Cth) should be set aside because of an alleged bias. The court noted that Bienstein's submissions were based upon an erroneous contention that s 11(1)(a) conferred a right to insist upon a decision in response to her request for access to document. The court held that the right conferred by s 11(1)(a) is a right to obtain access and when an actual decision in response to a request is not made within the period of time permitted, s 56 of the FOI Act deems a decision refusing access to have been made and provides that the legally enforceable right of a person to obtain access may be facilitated through an application to the AAT. When such an application is made the AAT has the power to decide any matter in relations to the request that could have been decided by the agency or Minister.

The court noted that Bienstein's reliance upon s 15(5)(b) is misplaced because it is read and understood in the context of s 56 and in the light of the scheme of the FOI Act dealing with deemed refusals. However, this process is superseded by provisions provided in ss 55 and 56.

Claims that the trial judge didn't provide procedural fairness to Beinstein where not determined because the court held the trial judge's order was correct in the first instance.

No comments:

Post a Comment