From the Executive Director

VCAT resourcing issues continue

Happy New Year to all of our clients and interested readers!.

Many of you will be aware that since about February/March 2023 the Victorian Civil and Administrative Tribunal, particularly in the Review and Regulation List, has been suffering from severe resourcing issues.  There is a shortage of members available to hear and determine any freedom of information cases.  The Tribunal has been in the invidious position of having to juggle resources allocated to that list and giving priority to, for example, cases which deal with the livelihoods of individuals, given that that List also deals with such matters in addition to FOI matters.

Added to this is that when COVID-19 originally hit, and before the resourcing issues of the Tribunal arose, many FOI review proceedings were stayed or adjourned pending the Tribunal taking whatever internal steps were required to enable it to perform its functions.

Therefore, since about March 2023, the VCAT has been making orders in relation to then existing FOI review proceedings, and at the first directions hearing in newly commenced FOI review proceedings,  adjourning proceedings "to a date to be determined" and citing in the "Remarks" part of any orders that this is due to unavailability of members to hear and determine the matter.

There are two potential exceptions to this where cases might be given priority.  First, where parties to an FOI review proceeding can persuade the Tribunal that the underlying facts and circumstances are of such urgency or importance as to justify the matter "jumping the queue".   Secondly, where there is a significant public interest in the matter being given priority.  It is this second example which appears to justify why Opposition MPs are being given priority in FOI review proceedings involving them.

Impact on decision-making

These issues have meant that there is an ever growing backlog of FOI review cases which are yet to be determined.  We understand that it may be in the hundreds.  As at the date of this newsletter, our firm has 42 FOI review cases on foot at VCAT on behalf of clients awaiting the next step.  They range from orders adjourning them made in March 2020 to as recently as January 2025.  Of those, 31 are the subject of the order adjourning them to a date to be determined due to unavailable Tribunal members.

Even when a matter is given priority by the Tribunal, it means that the next step, whether it is a compulsory conference or a final hearing, is not likely to occur for at least another 6 months.  In January 2025 our firm received orders in one matter which is being dealt with by VCAT as a priority, where the parties were asked by the Tribunal to indicate availability for a hearing during the 4 month period commencing September 2025 (ie 8-11 months later).

Knowing that if an FOI matter proceeds to VCAT will result in the matter being adjourned off for potentially over a year is likely to have some direct or indirect impact on decision-making by agencies.  This is particularly so where exemptions are claimed in part due to the time-sensitivity of documents being released or not.  

This is also not assisted by what we anecdotally understand to be resourcing issues within the Office of the Victorian Information Commissioner.  We have heard from some FOI applicants raising concerns with VCAT that when they apply for review, the OVIC automatically seeks an extension in some matters of up to 120 days more than the 30 days within which the Information Commissioner is required to finalise a review.

We would be interested to hear from our clients as to whether they were aware of these delays and, if so, whether that knowledge has had any direct or indirect impact on FOI decision making within their agencies.  Please feel free to email me.  

Mick Batskos 

Executive Director