I expect that the internal review will not change the decision. It is so because it is very unlikely that the documents described from the applicant exist.

The request for internal review does not say anything about why the applicant believes the documents might exist. Also, if the department did not make a correct search for the documents for the first decision, the email does not tell the internal review person how to make a different search so that these documents can be found. The applicant makes instead various reasons why the information that he wants can be interesting.

In my opinion too the information could be interesting, maybe also to many other people. But this does not mean that the documents exist. It means that a person must do some research to find the answers. But the FOI Act does not make the Attorney General's Department to do research. This is for the applicant to make.

I do not know if this would work, but on the AustLII website, most documents about the High Court processes are there. A person could look at each document and see whether the applicant was represented and whether the case was about appeals from the Supreme Courts of states. A good place to start might be the High Court of Australia Special Leave Dispositions (http://www.austlii.edu.au/au/cases/cth/H...). I say to start at that place because every appeal to the High Court is by special leave unless the cases is with the "original jurisdiction" or the Court.

Additional note: I made a manual search of the dispositions that have been made in 2014. I did quickly find one unrepresented litigant who is called Gaye Luck. Maybe there are more. The many many complaints and grievances (64 cases on AustLii) of luck-less Luck (maybe it is wrong to make a light of it) give instructive lessons. About unrepresented applicants a lesson is given to Mrs Luck by the Acting Chief Justice, in http://www.austlii.edu.au/cgi-bin/sinodi... ... " Lack of legal representation is not a privilege; it is a misfortune".

She (the annotator) is right (correct) in saying that lack of representation is not a privilege, the statistics from around 2002 corroborate the statement. 0.7% of unrepresented (should I say self-represented) persons were successful at the high court compared to 27% represented persons. Without looking at the raw data (how these percentages were figured out) this amounts to success of around 1 in 14 cases for UNREPRESENTED "applicants", whereas around 1 in 4 success for REPRESENTED "applicants".

She can call it what she may, in saying "lack of representation" but I would tend to call it like I see it (after looking at the scientific evidence).

The request for internal review does not just revolve around the existence of documents, it has to do with other aspects, which I mentioned in the request for review.

We do not need to say for what reason we need the data. This is one of the key attributes of the FOI Act anywhere. Without even looking at the FOI Act 1982 (Cth) I would say that the AG's department must take all reasonable steps to locate the documents (data, if they are held in computer storage) and create a fresh document where it is necessary.

The annotator is vague when she says "...most documents about the High Court processes are there [on the AustLII website]. Most is not good enough for statistically based documents, as we are not talking about a hotch-potch method of arriving at our answers.

The high Court did publish the data (documents) on its annual report in 2002, so how come this is not reported in the most recent annual reports?.

Going back to the comment about unrepresented applicants as unfortunate. That's the short, nasty and brutish answer to a situation faced by an unrepresented applicant. We have come far from the days when Courts and Tribunals were available (and open) only to a few. So to dismiss anything as "unfortunate" is to dismiss all the hard work of where we are now and how we arrived here.

By the way, I am not in any way disputing a decision of a Court or Tribunal, just discussing the right answer. How would Hercules as a judge come-up with the answer.

In my mind, it is a high quality response from the internal review maker. He has read the review request. He has also read the extra information on this page whereto the applicant has directed him. Then he has responded more than is required under the Act. He has given additional information about an apparent misunderstanding of the applicant and also added useful extra comments.

Previously the applicant complained about my annotation where I suggested how to do the research by himself without the FOI Act. He said, it, "is not good enough for statistically based documents, as we are not talking about a hotch-potch method of arriving at our answers." He is right. "Hotch-potch" is not good. But the applicant was also wrong because the method did not have the "hotch-potch". The AustLII database has every High Court case from 1901. It also tells that the applicant "appeared in person" or not. Also as I said, the Special Leave Dispositions are on the AustLII database and there also it is possible to see a person "appeared in person" (self-represented) or not. Also, a person can read the direction that the judgement went. So, all the information to make the statistical analysis is already available and in one place. The cost is now the labour (not the information) to make the research.

The result will be interesting. Also it will be difficult to know the interpretation. Many people who consider to appeal to the High Court will go to a lawyer who will tell with accurate knowledge, "Do not waste your time and money. You are wrong and you will lose," so this person does not appeal. Then it does not count as "represented applicant---lost case". But the same applicant maybe does not consult the lawyer and she makes an appeal or an application for Special Leave. Then she loses, and it has a counting of "self-represented applicant---lost case". So the statistics must have a bias but one cannot know how much.

There is the interesting case of Dr Jean Gassy who "appeared in person" and made a success with his application for special leave against conviction for murder. Yes, it was true on the first occassion but not on the second time.

The internal review does provide some impressive evidence about the plight of Self Represented Litigants'. The decision maker actually goes over and above what is legally required (but within the stipulated guidelines of the OAIC -- there are no particular limits on how much assistance the reviewer should give, only what is reasonable) of him and states where documents can be found. I looked at these papers and there is a wealth of information (or the lack of it, in terms of data collection in some instances) there. But my worries were about what happened with the content reported on the High Court Annual reports. The 2002 annual reports contains a section dedicated towards Self-represented litigants, come 2003, that annual report does not continue reporting the same criteria. You would think that the same data will be collected for continuity. I am not saying collect meaningless data just for continuity, but if there was a reason why success rates of Self represented litigants were not collected from 2002, why was this not reported on the Annual report 2003. Presumably, the High Court Annual Report data comes from the Attorney General Department. So it wasn't so much that I was saying the Attorney General department has this data but simply refusing to release it.

The departments website has a section dedicated to storing the papers that the internal reviewer mentioned in his reply. So I am grateful for the links attached. If there is one criticism I would say that the links need to be "followable" or the ability to cut-and-paste the links on to a web browser. Although, this requires an additional step, to convert a scanned document to capture text, by using some form of capture method. I've only discovered this recently myself. In the link
below it mentions that this can be done using "capture" in the Adobe software.

http://assets.justice.vic.gov.au/supreme...

The other main critique, as mentioned previously, is that the reviewer assumes that I am highlighting a lack of openness. This is evident in his response under the heading Creation of Documents, point 13, where he says: you stated in your application for internal review that:
A full history of my FOI request and all correspondence is available on the Internet at this address:

https://www.righttoknow.org.au/request/a...

This part is put there by the RightToKnow website when a requester click on 'request internal review'. It is not something I added specifically. He seems to be of the opinion that I am suspecting the department of not disclosing documents actually held.

In effect what he has done is put the cart before the horse, and used my (which wasn't mine after all) statement to satisfy one of his goals; to defend any claim of a lack of openness. (whether real or imaginary)

Again, in point 14 he misinterprets what I say about not having to look at the FOI Act 1982 (Cth) to have some notion that an agency should take all reasonable steps to locate the documents. (Actually when I initially wrote the internal review request I did wonder if what I was implying would be interpreted as such) What I meant by this was that if a law is JUST you would not need to look it up. I am well aware where the FOI Act and the guidelines are located, but laws that are made through just and equitable processes do not need to be "looked-up". They make perfect sense (both logically and practically). If you are in a Tribunal you would feel these processes working like clockwork, when these laws are JUST.

But at the same time, when they are not, you would, if not immediately, not long afterwards feel that something is not right. To give an example of an UNJUST Law, the Victorian Residential Tenancies Act 1997 (updated version) that only allows a party to request written reasons before/during/or before the conclusion (and not after the conclusion) of the hearing IS AN UNJUST LAW.

The person who is new to the Tribunal (legal) system will not be aware of this unless she has read/seen or been advised about this. With JUST laws this is not needed or necessary. You would not need any explanation why a law is a law, I would say this is so for all common law countries. So, a self-represented litigant, (with Tribunals it is almost everyone), who comes to the Tribunal to resolve a tenancy matter for the First time will not be aware of this and once the hearing is over, it would be too late for them to ask for written reasons. I experienced this first hand. Everything that happened up to that point, the process anyway, was precise. You could look at the legislation (the VCAT Act) after the hearing and start connecting the dots. You could read a part of the legislation and say to yourself "I can see why this is so". It's just. but when you encounter an UNJUST law, its so apparent that it is like been hit by a brick wall. I guess its all the more apparent because there arn't any (many) UNJUST laws (except that one and maybe a few others – luckily I've only encountered that one). But I do believe that UNJUST laws (and decisions) do correct themselves, if not there and then, in the future. So the system as a whole is resilient.

Reply to annotator – Loctsu Smu
-------------------------------

In reply to the response from the Annotator, she has read my response on this occasion and given some useful methods to tackle data collection issues. However, she scores an own goal, when she says that the statistics invariably has an inbuilt bias. (The annotator points out or alludes to statistical bias, but does not describe what she means, leaving me to conclude conclusively that she was instructed to say this, but has no comprehension what so ever about what it means. In effect she uses bias as a label, but does not describe the label. More on this later.) It would if I performed this exercise and drew (incorrect) conclusions from it. For example, if I conducted the study based on High Court data and said the same conclusion hold for Self-represented litigants that file a case in the Supreme Court of Tasmania.

She quite correctly states a lot of the self-represented litigants are put-off by the time-cost factor (not surprisingly), so they do not become part of the statistics. But then, I would be saying in the method of my study, how I conducted the study and to what "demographic" if you like, it applies to. In this case its a self-represented litigant that actually files a case in the High Court. It would be wrong to draw conclusions based on this finding, to Courts in other Jurisdictions.

Scientific research do not give foolproof answers. They are dependent on the quality of data, the rigor of your methods (if you use many data sources that's obviously good), accuracy of the data, among other factors. For most social sciences the level of accuracy is 95%, this is considered sufficient, but for medical research for example 99% is the accepted level. With scientific bias however there are various ways of reducing this bias. For example, you could take multiple readings and then take an average. So take three readings add them up, and divide by three. If I was to do this research going though the cases on the AUSLII website I could re-check each case again to ensure accuracy. If the cases were reported on another website I could check that website and make cross-comparisons. I could ask another researcher to do the same thing I did (checking for “appeared in person” and the outcome or direction of outcome on the AUSTLII site – although I must say checking for “appeared in Person” didn't give me any results when the Special Leave and Dispositions database was selected. Although I had more luck when I searched for “appeared” under the same category. The Ms Lukc (leave it to you to decide it this is a typo or if it is an intended typo) case even came up. On another note I find it interesting that in law there is this category called “....dispositions”, on first glance I thought it was depositions, I was of course thinking of 'depositions' as in giving evidence. Anyway, I am not using footnotes on this one, so back to what we were discussing) and see if she comes up with the same results.

I think with legal decisions, this is less evident, (huge decisions are made by a single judge sometimes, but juries are composed of twelve people) except that there are ways to rectify (correct) decision by say for example an appeals process. Also, as the case is escalated up the Court hierarchy, there are many judges involved. In effect, what we are dealing with is similar to what I talked about earlier, reducing the scope of error. it would never be reduced to 100% foolproof but we could aim close to it. Maybe the annotator Ms Smu can enlighten me on how (what processes there are) to reduce legal error. A scientific experiment is just that, there is not much that depend on it in the same way as a decision
in a legal matter. Therefore, it makes sense that more legal disputes are handled through Alternative Dispute Resolution (ADR). However, when one party is resolutely against this method it makes ADR impossible. Both (all) parties have to agree. A scientific paper will go through rigorous testing before it is accepted for example, through peer review. If it is accepted there will be immediate critique's and analysis from others attempting to disprove the findings or in search for a paradigm shift. But what both (legal and scientific) have in common is that there is always clear reasoning so that anyone interested (or curious) is able to follow how we arrived at a decision/result. This is key, in scientific research it gives another researcher the opportunity to repeat the research and test the results..do we get the same result, or they can make modification (after acknowledging the sources) to the method and come up with a whole fresh set of outcomes (solutions). How the research is conducted is what is of most relevant (the method).

For example, if I was to conduct an experiment on if there were any black swans in existence. I could count the number of white swans I saw and report that "there are no black swans in existence". But in my research I would need to say how I came to this conclusion. How many white swans did I see, where did I check. at the local pond/lake? or did I travel to several locations, when was the study conducted etc.

The beauty of scientific research (at least in open societies) is that it is available for the general public to critique and perfect if you like. So, someone (a researcher) in the next city may see a black swan, publish their work, and this would necessary put my research in to doubt. In all this, there is never any doubt what a swan is. Only the descriptives can be questioned. In both our minds we have a picture of what a swan looks like. This is not in dispute. What is in dispute is the colour of the Swan. Same way, if I was to say to her I did my research in this place for this length of time. That is not in dispute. (I mean what we understand by “six months” is the same, we are talking about discreet time. You could dispute if I actually conducted the study for six months or if it was six months and 2 days, but that can be established, because there are concrete ways to establish this) We have concrete (solid) understanding about these. Six months means six months.

Similarly, what would put HER research in doubt would be, if she starts describing the swan as a horse-like creature, with a horn on the front of its head and wings. But then, anyone reading this would know what she is describing. She can label it a Swan, but we know she means .....This is the beauty of language, it has evolved over so many centuries...it will without a doubt reveal these differences. That's how come we do need to say a lot more about what the swan looks like, may be its not relevant (its just padding if you like), may be it is. But we could do a lot worse, if we just say "SWAN!, BLACK, 1". Maybe, she didn't see a black swan, but we did reach a sound conclusion (that it wasn't a black swan), also it revealed the duration and where the study was conducted, saying "SWAN!, BLACK, 1", dosent really say much. But where there is no dispute over the bird 'swan', then the only dispute is if it was a BLACK swan. But all this may be a crude way of conducting the experiment because there may well be another way of characterising the two kinds of swan rather than the “black”, “white” labels. But we do know that we are both talking about Swans, not some other creature (whether actual or imaginary).

I am not disputing the use of labels in all this. The label black swan is useful and necessary. Also necessary is the description of the black swan, without it we cannot know (ascertain) for certain what we are dealing with. But we shouldn't confuse the two or substitute one for the other. That is, use a label where a description is useful or necessary or vice versa and then say its just a description (or a label) -- it dosen't make either one less significant. Without the label we won't be describing or getting to the point of describing it. Without the describing we would not be figuring out that it is not a black swan. In effect, its incorrect for us to say that she did not conduct the research for six months at a particular location, because her description of the black swan was incorrect. However, it's incorrect of her to label something as a black swan when all she saw was a white swan (assuming there is no dispute about the bird SWAN in all this – which is what it is here – it is always a question about if it was a black or white SWAN). I could not dismiss her whole study claiming that all she saw was a mythical creature. Similarly, you could not put a cart before a horse and expect anyone to believe that that is the order in which a horse and cart is drawn.

Going back to self-represented litigants, it seems we are not the only ones discussing this topic. In another corner of the world, it is also under the spotlight (or microscope). Here are some news articles:

http://www.cbc.ca/news/canada/windsor/se...

http://www.lawtimesnews.com/201409224205...

The one below is more relevant to Jurisdictions within Australia:

http://www.abc.net.au/radionational/prog...

About Dr Jean Gassy representing himself and succeeding first time round. I feel she is saying that self represented litigant's do get an opportunity, a fair go, but one chance only. But then, is she saying that, if Dr Gassy was represented second-time round the outcome would be different.

Also, upon checking the AUSTLII website for Dr Gassey's case (the initial case in 2004) at:

http://www.austlii.edu.au/cgi-bin/sinodi...

I discovered that he was represented partly during the initial trial (paragraph 102 of the above link). So, any research would need to differentiate between those not legally represented throughout a case and those that were at some point.

Anyway, I think the introduction of the Dr Gassy case opens-up another topic, the legal precept of double jeopardy, that's another completely different topic so I won't go in to it here.

But I feel I should respond to the Dr Gassy remark by saying that both O.J. Simpson and Oscar Pistorius were both cleared of murder (Pistorius of course found guilty of the lesser charge of culpable homicide). They were both legally represented.