Decision not to continue to undertake an IC review under s 54W(c) of the
Freedom of Information Act 1982
IC review applicant
Cyber Sceptic
Respondent
Department of Home Affairs
Decision date
23 December 2024
OAIC reference number
MR24/01663
Agency reference number
FA 24/07/01802
Decision
1. I refer to the application made by Cyber Sceptic (‘the applicant’) for Information
Commissioner review (IC review) of a deemed access refusal decision made by the
Department of Home Affairs (‘the Agency’) on 27 August 2024 under the
Freedom of
Information Act 1982 (Cth) (the FOI Act).
2. As a delegate of the Information Commissioner, I am authorised to make decisions under
s 54W(c) of the FOI Act.
3. On 5 December 2024 the Agency made a revised decision under s 55G of the FOI Act, providing
the applicant partial access to documents.
4. The Office of the Australian Information Commissioner (OAIC) has not received a response
from the applicant to our subsequent correspondence to advise whether they wished to
proceed with the IC review. As a delegate of the Information Commissioner, I have decided not
to continue to undertake an IC review under s 54W(c) of the FOI Act. My reasons follow.
Background
5. The key procedural steps in this IC review are set out at
Attachment A.
Discretion not to continue to undertake an IC review
6. Under s 54W(c) of the FOI Act, the Information Commissioner may decide not to undertake a
review, or not to continue to undertake a review, if the IC review applicant fails to comply with
a direction of the Information Commissioner.
7. The Direction as to certain procedures to be followed by applicants in Information
Commissioner reviews issued by the Australian Information Commissioner under s 55(2)(e)(i),
provides:
link to page 2
Applicants must respond to requests for information from the OAIC within the time
provided unless there are exceptional circumstances warranting a longer period to
respond. If more time is needed, a request for an extension of time must be made to the
OAIC at the earliest opportunity within the period provided for response, and no later than
2 days before that period is due to expire. Requests for more time must explain the
exceptional circumstances that necessitate additional time and propose a new date for
response. Approval of an extension request is at the discretion of the OAIC
.1
8. The OAIC has not received a response from the applicant to our correspondence asking
whether they wished to proceed with the IC review, or the basis on which they wished to
proceed.
Reasons for decision
9. I am satisfied that the IC review should be finalised under s 54W(c) of the FOI Act as the OAIC
notified the applicant that in the absence of a response from them by 19 December 2024,
their IC review would be finalised by a delegate of the Information Commissioner under s
54W(c) of the FOI Act.
10. In deciding whether to exercise the discretion not to undertake a review, I have considered:
• The applicant has not provided any indication to the OAIC that they disagree with the
Agency’s revised decision.
• It does not appear that reviewing this matter will promote the objects of the FOI Act
particularly noting that access to documents has now been provided to the applicant.
11. As a delegate of the Information Commissioner, I have decided to exercise my discretion to
decide not to continue to undertake an IC review under s 54W(c) of the FOI Act.
12. I confirm that this IC review is now closed. Your review rights are set out below.
1 Se
e Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.22]
13. If either party would like to discuss this matter, please contact us by email at
xxxxx@xxxx.xxx.xx. In all correspondence, please quote MR24/01663.
Yours sincerely,
Michelle Corcoran
Director
Freedom of information Branch
23 December 2024
ATTACHMENT A
Key procedural steps
Date
Events
28 July 2024
FOI request made to the Agency for access to documents
under the FOI Act.
8 October 2024
IC review application received by the OAIC.
29 October 2024
IC review commenced by OAIC.
5 December 2024
Revised decision made by Agency to provide access to
documents.
5 December 2024
The OAIC sought the applicant’s advice about whether the
applicant wished to proceed with the IC review and provide
grounds about the basis on which the applicant wished to
proceed. The OAIC also advised the applicant that their IC
review may be finalised under s 54W(c) if no response was
received by the specified date.
link to page 5
Review rights
Judicial review
You can apply to the Federal Court of Australia or the Federal Circuit Court for a review of a decision
of the Information Commissioner if you think that a decision by the Information Commissioner not
to review or not to continue to undertake review of this IC review application under the
Freedom of
Information Act 1982 (the FOI Act) is not legally correct. You can make this application under the
Administrative Decisions (Judicial Review) Act 1977.
The Court will not review the merits of your case but it may refer the matter back to the Information
Commissioner for further consideration if it finds the decision was wrong in law or the Information
Commissioner's powers were not exercised properly.
An application for review must be made to the Court within 28 days of the OAIC sending the decision
or determination to you. You may wish to seek legal advice as the process can involve fees and costs.
Please contact the Federal Court registry in your state or territory for more information, or visit the
Federal Court website a
t http://www.fedcourt.gov.au/.
Making a complaint to the Commonwealth Ombudsman
If you believe you have been treated unfairly by the OAIC, you can make a complaint to the
Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The
Ombudsman can investigate complaints about the administrative actions of Australian
Government agencies to see if you have been treated unfairly.
If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC
reconsider or change its action or decision or take any other action that the Ombudsman considers
is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or
visit the Commonwealth Ombudsman’s website a
t http://www.ombudsman.gov.au.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxxxx@xxxx.xxx.xx. More information is available on
the Access our information2 page on our
website.
2 www.oaic.gov.au/about-us/access-our-information/.
