Application of Section 73 FOI Act

Relevant considerations

1. Does the application satisfy the requirements for a valid application for external review?

Section 73 requires the application:

• be in writing
• specify an address for the applicant; and
• give particulars of the decision for review.

Unless the decision to be reviewed is a decision of a Minister or the principal officer of the agency, the application will not be valid unless an application for internal review has been made and the internal review has been completed, or the time for internal review has ended under sections 52(6) and 60(6) of the FOI Act.

2. Is the application within time?

Section 73 also requires that an application for external review be made within 28 days from the day on which written notice of the decision is given to the applicant, or within a longer period allowed by the Information Commissioner.

Section 38(1) of the Acts Interpretation Act 1954 (Qld) explains the process for calculating periods of time. The effect of that section is that the day on which the written notice of the decision is given to the applicant, is counted as ‘day zero’ and the 28 day period ends at the end of the 28th day from ‘day zero’.

3. Has the Information Commissioner exercised discretion to allow further time?

The Information Commissioner has the power to accept applications for external review made outside the timeframe specified in section 73(1)(d) of the FOI Act.

The exercise of the discretion to allow further time under section 73(1)(d) of the FOI Act turns on a variety of circumstances relevant to the individual application.¹

In Young and Workers Compensation Board of Qld,² the Information Commissioner preferred the approach of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen,³ in determining matters of extension of time. The Information Commissioner adopted three key considerations relevant to the exercise of the discretion conferred by section 73(1)(d) of the FOI Act:⁴

• the extent of the delay in applying for review and whether the applicant has an acceptable explanation for that delay
• the balance of fairness, having regard to any prejudice that would be occasioned to the applicant by a refusal to grant the extension, compared with any prejudice that would be occasioned to the respondent or third parties by the grant of the extension; and
• the merits of the substantive application for review, including whether it raises genuine issues and discloses a reasonably arguable case, with reasonable prospects of success, in respect of one or more of the documents in issue; or whether it would be futile to permit the application to proceed because it is apparent that the applicant lacks any grounds of substance for challenging the decision under review.

i) What is the extent of and explanation for the delay?

In deciding whether to exercise the discretion conferred by section 73(1)(d) of the FOI Act, the Information Commissioner may take into account any relevant matters including the extent of, and reasons for, the delay.

In Hunter Valley Developments Pty Ltd v Cohen,⁵ the Federal Court considered whether to exercise its discretion to extend the time for an application for judicial review. In determining whether a reasonable explanation had been offered for the applicant’s delay, Wilcox J stated:

Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished.

The Information Commissioner indicated that a considerable extent or delay weighs heavily against the exercise of the discretion to allow further time.⁶

ii) Is there any prejudice to the parties in allowing an extension of time?

The Information Commissioner may consider any prejudice to the applicant or agency if the application for an extension of time is granted or denied. The Information Commissioner will balance:

• prejudice to the applicant if the extension is denied (eg prejudice to the applicant may be high in an application for documents sought in order to assist in a parole application or the pursuit of a legal remedy); and
• prejudice to agency or Minister if the extension is granted.

The absence of prejudice to the agency or Minister is not sufficient in itself to justify the grant of an extension.⁷

iii) What are the merits of the substantive application?

The Information Commissioner may consider whether the application raises a reasonably arguable case for review.

This process will usually involve an examination of the documents in issue and the exemption provision relied upon by the agency, to determine whether the applicant has substantive grounds to challenge the decision under review with respect to one or more of the documents.⁸

If it is determined that the application lacks merit, this consideration will usually weigh heavily against the exercise of the discretion to extend time

¹Young and Workers Compensation Board of Qld (1994) 1 QAR 543, where the Information Commissioner quoted Fitzgerald J in Lucic v Nolan and Others (1982) 45 ALR 411 J, who cautioned against listing the circumstances in which an exercise of discretion of this nature would be appropriate. [up]
²Young and Workers Compensation Board of Qld (1994) 1 QAR 543. [up]
³Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, in which the Full Court of Australia distilled the guiding principles for exercising a discretion to extend time under section 11 of the Administrative Decisions (Judicial Review) Act 1997 (Cth). [up]
⁴Young and Workers Compensation Board of Qld (1994) 1 QAR 543 at paragraph 22. [up]
⁵Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. [up]
⁶ A delay in excess of 100 days beyond the statutory timeframe was considered by Deputy Information Commissioner to be a ‘significant factor weighing against the grant of an extension of time’ in Malone and Townsville Health Service District (Unpublished, Queensland Information Commissioner, 30 June 2004). [up] 
⁷Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at page 350; Lucic v Nolan and Others (1982) 45 ALR 411 at paragraph 416; Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at paragraph 523. [up]
⁸Young and Workers Compensation Board of Qld (1994) 1 QAR 543 at paragraph 22. [up]