Application of section 88(1)(d) RTI Act

Relevant considerations

1. Was the application made within 20 business days from the date of the written notice of decision?

a) Written notice of decision issued within the processing period

If a written notice of decision is issued within the processing period, an application for external review must be made within 20 business days from the date of the written notice of decision, unless a longer period is allowed by the Information Commissioner.

Section 191 of the RTI Act provides that when a written notice of decision under the RTI Act must be given, it must be in writing and state certain details.

b) No written notice of decision issued within the processing period

If no written notice of decision is provided to the applicant by the end of the processing period, the agency or Minister is taken to have made a deemed decision refusing access, on the final day of the processing period.1  As soon as practicable after a deemed decision is taken to be made, the agency or Minister must give a prescribed written notice of the decision to the applicant.2

If a written notice of the deemed decision has been issued to the applicant, an application for external review must be made within 20 business days from the date of the written notice of the deemed decision, unless a longer period is allowed by the Information Commissioner.3

If a written notice of the deemed decision has not been issued to the applicant, the Information Commissioner would generally accept the external review application provided the application has been made within a reasonable time, any reasons for delay are properly explained and the application has merit.

c) Business day

Schedule 1 of the Acts Interpretation Act 1954 (Qld) provides the definition of 'business day':

business day means a day that is not—
(a) a Saturday or Sunday; or
(b) a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done.

Section 38(1) of the Acts Interpretation Act 1954 (Qld) explains the process for calculating periods of time.

2. Will the Information Commissioner allow a longer period to make the application?

The Information Commissioner has discretion to extend the period to make an external review application under section 88(1)(d) of the RTI Act.  Where an Act confers a statutory discretion, the legislature is taken to intend that the discretionary power will be exercised reasonably,4 or in other words not unreasonably, according to the proper construction of the relevant Act5 (in this case, the RTI Act).  Unreasonableness will only be demonstrated where 'no sensible authority acting with due appreciation of its responsibilities' would have so decided.6

In Young and Workers' Compensation Board of Queensland (1994) 1 QAR 543 (Young), the Information Commissioner considered whether to allow the applicant a longer time to apply for external review and in doing so, considered a number of decisions of superior courts and administrative tribunals which discussed the proper approach to exercising the discretion to extend time for making an application for review of an administrative decision.  Young considered section 73(1)(d) of the repealed Freedom of Information Act 1992 (Qld) which operated in the same way as section 88(1)(d) of the RTI Act.

In Young, the Information Commissioner identified the following factors as being relevant in considering whether to exercise the discretion to extend time:

  • the extent of and any reasons for the delay in applying for external review
  • the balance of fairness; and
  • the merits of the substantive application for review.

a) Extent of and reason for the delay

In considering this factor, it is relevant whether the applicant has received correct appeal rights information from the agency or Minister.  Other action taken by the applicant to contest the decision may also be relevant.7

b) Balance of fairness

This factor requires a consideration of any prejudice:

  • to the applicant if the application is not accepted; and
  • to the agency/Minister or third parties if the application is accepted.

Arguably, prejudice to the applicant arises if the application is not accepted because there is no opportunity for an independent review.  However, this will be significantly lessened if the merit of the application is low.  The absence of prejudice to an agency is not a sufficient reason to accept an out of time application.8

c) Merit of the application

Assessing the merit of the application requires the decision-maker to consider how likely the application would be to succeed if accepted by OIC.  This is assessed on the particular circumstances of the case and requires the decision-maker to consider whether the application raises genuine issues and discloses a reasonably arguable case, with reasonable prospects of success.

1 Section 46(1)(a) of the RTI Act.

2 Section 46(2) of the RTI Act.

3 Section 88(1)(d) of the RTI Act.

4 Kruger v Commonwealth (1997) 190 CLR 1, 36; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 [15]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [63]; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 [36].

5 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [67].

6 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1064.

7 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 334, 348.

8 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 334, 349.

Last updated: June 23, 2014