Last updated 1 September 2016
Both the Commonwealth and state legislation contain extensive provisions about appeal rights. These apply to any person affected by particular decisions of a minister or agency made when dealing with a request. They include:
- an applicant who has been refused access
- a third party who, after being consulted by an agency about an access request, objects to an agency’s decision to disclose
- a person whose request for amendment of personal records was denied (see below)
- a person who is questioning the decision about the fees and charges to be paid.
A review of the initial decision must be conducted by another officer of the agency who is at least as senior as the original decision maker.
Under the Freedom of Information Act 1982 (Cth) (Freedom of Information Act), an application for internal review must be in writing, and be made within 30 days of notification of the original decision. Under both the Information Privacy Act 2009 (Qld) (Information Privacy Act) and Right to Information Act 2009 (Qld) (Right to Information Act), a written application for review must be submitted within 20 business days of notification of the original decision.
Importantly, both the Commonwealth and state legislation allow a person to apply for external review to either the Australian Information Commissioner (pt 7 Freedom of Information Act) or the Queensland Information Commissioner (s 85 Right to Information Act, s 99 Information Privacy Act) without having first applied for internal review.
Despite being able to go directly to an external review, it is often preferable for a person to seek internal review first as it is quicker than external review.
External review by the Australian Information Commissioner or the Queensland Information Commissioner is a merit review of the original decision. For a fuller discussion on merit review please see the chapter on Complaints about Government – Administrative Law.
An application for external review to the Australian Information Commissioner should be made in writing within 60 days of the notice of decision being given to the applicant (s 54S(1) Freedom of Information Act). In Queensland under both the Right to Information Act and the Information Privacy Act, an application for external review must be lodged in writing to the office of the Queensland Information Commissioner within 20 business days of the written notice of the decision (s 88 Right to Information Act, s 101 Information Privacy Act).
The Queensland Information Commissioner can refer questions of law arising on an external review to the Queensland Civil and Administrative Tribunal (QCAT) for determination (s 131 Information Privacy Act, s 118 Right to Information Act). The state legislation also provides an avenue for appeal to QCAT against a decision of the Queensland Information Commissioner. Such an appeal may only be on a question of law, and must be filed within 20 business days after the date of the decision being appealed.
The Administrative Appeals Tribunal (AAT) can review certain decisions made by the Australian Information Commissioner (s 57A Freedom of Information Act). An application to the AAT must be made within 28 days of the Information Commissioner’s decision. Both the Australian Information Commissioner and the AAT can also refer questions of law to the Federal Court of Australia during a merit review. A party to a review also has the right to appeal to the Federal Court on a question of law from a decision of the Australian Information Commissioner or the AAT.