Tuesday, October 28, 2008

Complaint of 26 September about the A-G’s Department’s FOI Decision

Dear Professor John McMillan

I complain about the decision of 8 September 2008 made by Mr Richard Glenn, the assistant secretary of Personal Property Security Branch of the Attorney-General’s Department (Ref: 08/7411). Mr Glenn reviews a decision made by Mr Malcolm Bennett to delete material from documents provided to me under the Freedom Information Act 1982. Mr Glenn’s decision, Mr Bennett’s decision and my application for reviewing Mr Bennett’s decision are attached.

Mr Glenn’s decision failed to address my main complaints, and did not provide any reasons for ignoring my complaints. My main complaints were:

Mr Malcolm Bennett’s decision of deleting some materials in one of the disclosed documents is unreasonable and erroneous as he failed:

‘1. to consider whether or not the legal advice was a part of the reasons for the decision that had been disclosed. (Implicitly, the "professional legal adviser", who was the decision maker as well in relation to not intervening in the constitutional matter, "repeated" "some legal advice earlier provided in this matter" because the legal advice was the reasons for his decision. Obviously, he considered: to understand his decision, it is necessary to give the reasons.)’

‘3. to consider “implied waiver of privilege” in accordance with Bennett v Australian Customs, in which Tamberlin J points out:

(i): “Kirby J points out in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 137 ALR 28 at 34: ‘I agree that a mere reference to the existence of legal advice would not amount to a waiver of its contents.’” (paragraph 7, emphasis added)

(ii) “…the whole of the advice on which all those conclusions are based, must be considered to have been waived”. (paragraph 14, emphasis added)’

I particularly requested: ‘Therefore, please review Mr Bennett’s decision and provide substantial reasons for your decision in relation to above issues.’

My questions are:

1. whether Mr Glenn ought to respond to the above two aspects of the complaints, or the main grounds of the complaints
2. whether the deleted information is a part of the reasons for the decision that had been disclosed
3. whether Mr Glenn ought to apply Bennett v Australian Customs as quoted above?

I believe Mr Glenn’s review is incomplete.

(files below are downloadable as .jpg files)

Mr Bennett’s decision of 4 August 2008 p. 1, p. 2, and attachment p. 1, p. 2 and p. 3

Mr Glenn's decision of 8 September 2008 p. 1, p. 2 and p. 3

(file below is downloadable as doc. File)

My application of 18 August 2008 for reviewing Mr Bennett’s decision