Changes to the VCAT Act: implications for FOI proceedings

The Victorian Civil and Administrative Tribunal Amendment Act 2014, which was passed on 1 April 2014, contains reforms relevant to FOI proceedings.

Most significantly, the reforms will enable the Tribunal to:

  • invite an agency to reconsider its decision at any time in a review proceeding
  • make an order in relation to fees (including application and hearing fees), separate from its power to award costs
  • delegate certain functions of the Tribunal (such as making procedural orders or consent orders) to its registrars.

No doubt the latter reform will facilitate some efficiencies that will be warmly welcomed by all in the jurisdiction. However, the first reform is likely to be of most significance in FOI proceedings.

New section 51A – Tribunal may invite decision-maker to reconsider decision

This new provision is relevant in review proceedings only. In FOI proceedings, it enables the Tribunal to invite an agency to reconsider its decision at any time in the proceeding. The provision provides that, on receiving the invitation to reconsider, the agency may:

  • affirm the decision
  • vary the decision
  • set aside the decision and substitute a new decision for it.

The provision does not appear to give the agency the option of declining the invitation.

If the agency varies its decision or sets it aside and substitutes a new decision for it, the proceeding is then taken to be one for review of the decision as varied or substituted.

The new provision requires the Tribunal to ensure that, as far as possible, a proceeding’s priority is not affected by inviting the agency to reconsider its decision, unless the parties consent. We suspect that, as a consequence of this, the Tribunal will specify a timeframe within which an agency may reconsider its decision.

The provision specifically precludes the Tribunal from making a costs order against the applicant in the proceeding (under s74(2)(b)) only because the applicant withdraws an application after the agency reconsiders its decision.

Interestingly, the provision does not appear to give an agency any specific protection against a costs order made by the Tribunal (under s109(2)) in a proceeding where, after reconsidering its decision, the responsible authority affirms its decision, and the Tribunal subsequently sets it aside. It may be that, in those circumstances, an agency is more likely to be exposed to an adverse costs order.

Commencement of the Act

The Act was passed on 1 April 2014, and is proposed to come into operation by 1 February 2015 at the latest. Further details of commencement will be provided when they become available.

To access a copy of the Act please click here.

If you wish to discuss the effect of the Act or require any assistance with an FOI matter, please contact a member of the Governance Team.