Case note: AWT v Administrative Review Tribunal (Freedom of Information)

Following the abolition of the Administrative Appeals Tribunal (AAT) on 13 October 2024 and the subsequent establishment of the Administrative Review Tribunal (ART), an interesting issue arose in a recent Information Commissioner (IC) review decision. This issue at hand was whether the ART could rely on the exemptions under the FOI Act that had been claimed by the now-defunct AAT.

The applicant argued that the ART was a new agency with no continuity of identity from the AAT. On this basis, the applicant contended that deliberative material created by the AAT (draft decisions, internal legal advice) could no longer be withheld under s 47C of the Freedom of Information Act (FOI Act) as the relevant “agency” no longer existed.

Decision

The FOI Commissioner, Toni Pirani, rejected the applicant’s argument.

Key reasons for this included that:

1. Statutory Continuity via s 7(2)(b) of the Acts Interpretation Act 1901: The Commissioner affirmed that repeal of an Act does not affect the prior operation of the repealed law or anything “duly done” under it. As such, draft documents created during the AAT’s operations remain subject to the FOI Act.
2. Transitional Provisions: The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 expressly empowered the ART to continue and respond to matters initiated under the AAT framework. This included maintaining claims to exemptions under the FOI Act.

In light of the above considerations, the Commissioner found that while the AAT was formally abolished, its review functions continued under the ART. The identity of the “agency” in the context of s 47C was therefore functionally preserved for the purpose of assessing deliberative processes.

Key takeaways

This decision underscores the practical and legal continuity that transitional legislation and interpretation principles provide in administrative law. It clarifies that abolition of a tribunal does not extinguish legal protections over documents generated under its authority, particularly those linked to deliberative processes.

The reasoning provides assurance that institutional restructuring will not compromise legitimate exemptions under the FOI Act, and that those bodies inheriting the functions of their predecessors retain the authority to assert those exemptions.

Even where an agency is legally abolished, successor bodies may maintain exemption claims under the FOI Act where continuity of function is preserved, particularly where transitional laws and s 7(2) of the Acts Interpretation Act apply.