Fairness first: key takeaways from the Federal Court’s decision in Bachelard v AFP

Background

On 3 February 2025, the Full Court of the Federal Court of Australia handed down its decision in the matter of Bachelard v Australian Federal Police [2025] FCAFC 5 (Bachelard). In this case, the Federal Court considered an appeal concerning a Freedom of Information (FOI) request made by journalist Michael Bachelard under the Freedom of Information Act 1982 (Cth) (FOI Act). Mr Bachelard had sought access to several documents from the Australian Federal Police (AFP). The AFP had refused access to these documents, citing various exemptions under the FOI Act. After an internal review and review by the Australian Information Commissioner, Mr Bachelard applied to the Administrative Appeals Tribunal (Tribunal) for review of the decision. The Tribunal affirmed the AFP’s decision and Mr Bachelard appealed to the Federal Court on several grounds, including, in effect, that he had been denied procedural fairness (Ground 4).

Although this article will primarily focus on the Federal Court’s consideration of procedural fairness, the case addresses some additional interesting concepts such as the application of paragraph 37(1)(b) of the FOI Act and whether disclosure of edited copies of certain documents, without revealing exempt information, was possible and reasonably practicable under subsection 22(1) of FOI Act. We will touch on these issues briefly at the end of the article.

Denial of procedural fairness (Ground 4)

What was the issue?

Ground 4 of Mr Bachelard's appeal centred on the Tribunal’s finding that certain documents were exempt under sections 47E(c) and (d) of the FOI Act, despite the AFP not relying on these provisions before the Tribunal. The Federal Court concluded that Mr Bachelard was denied procedural fairness because he was not put on notice by the Tribunal that these exemptions were in play and therefore did not have the opportunity to address them. The Federal Court considered that the requirement to afford procedural fairness was not wholly displaced by requirements in the FOI Act not to disclose certain information to an applicant. If Mr Bachelard had been given the opportunity, he may have made different forensic choices such that there was a reasonable possibility that the Tribunal could have made a different decision.

As a result, the Federal Court upheld Ground 4 of Mr Bachelard’s appeal.

Why is this important?

One of the key elements of administrative decision-making is that decision-makers should afford procedural fairness. As the Federal Court notes, the “hearing rule of procedural fairness ordinarily requires, at the least, that a party be put on notice of the issues to be considered and decided”. This principle was articulated in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, where the High Court emphasised the necessity of informing a person of the nature and purpose of the inquiry, the issues to be considered, and the nature and content of information that might be taken into account as a reason for coming to a conclusion adverse to the person.

Where a decision-maker fails to afford procedural fairness, the failure may amount to a jurisdictional error where it is material in the sense that there is a “reasonable possibility that the decision… could have been different had the errors not been made”. The High Court has recently considered this issue in the decisions of Nathanson v Minister for Home Affairs (2022) 276 CLR 80 and LPDT v Minister for Immigration, Citizenship [2024] HCA 12 (LPDT). In LPDT, the High Court noted that it is "no easy task" for a court to be satisfied that the loss of an opportunity to present a case did not deprive the person of the possibility of a successful outcome.

Mr Bachelard’s case serves as another example of the importance of affording procedural fairness, and the significant ramifications for failing to do so.

Key takeaways for decision-makers in relation to procedural fairness

Importance of procedural fairness even where modified by statute

The Federal Court’s decision in Bachelard underscores the importance of procedural fairness in administrative decision-making, even where statutory modifications exist (such as in the case of the FOI Act). Decision-makers must ensure that parties are informed of the issues and information being considered to allow them a fair opportunity to present their case

Denial of procedural fairness likely to be material

The Federal Court's decision once again reaffirms that a denial of procedural fairness will generally be material if there is a realistic possibility that a different decision could have been made. This principle is crucial for maintaining the integrity and fairness of administrative processes. A court is unlikely to conclude that the loss of an opportunity to respond to a fact or issue, of which a person has been put on notice, could not have led to a different outcome.

Importance of assisting the Tribunal to reach the correct and preferable decision

The case also highlights the importance of assisting the Tribunal, now the Administrative Review Tribunal, in reaching the correct and preferable decision. Respondents should be proactive in inviting the Tribunal to request submissions on matters the Tribunal is considering basing its decision on, especially if those matters have not been raised by the parties. This approach ensures that all relevant issues are fully ventilated and considered, thereby upholding the principles of procedural fairness.

Other key points from Bachelard

As alluded to above, this case also addresses a number of other issues.

Of interest, the Federal Court’s decision cautions decision-makers, considering applying paragraph 37(1)(b) of the FOI Act, to avoid broad brush assessments of whether disclosure of a document would reveal the existence or identity of a confidential source of information by reference to the existence of general secrecy obligations imposed upon persons receiving the information. Rather, it is necessary to consider whether the individuals who provided the information did so with an express or implied assurance of confidentiality or because they understood from the circumstances, in which they provided the information, that their identities would not be revealed. The mere existence of general secrecy provisions does not automatically render all sources of information confidential under paragraph 37(1)(b) of the FOI Act.

In addition, the Federal Court’s decision acts as a reminder of the importance of considering whether it is possible to provide edited versions of documents, in accordance with section 22 of the FOI Act, which do not reveal exempt information. In this case, the Tribunal had failed to appropriately conduct this assessment, and the Federal Court held that this was an error of law and that it would have been reasonably practicable to prepare edited versions of the relevant documents. Accordingly, where it is reasonably practicable for an edited copy to be provided to an applicant, an edited copy should, in most cases, be provided.