Section 55 - Onus
Extract of legislation
| 55 | Onus | |
| (1) | In proceedings under this Division by virtue of section 12, the principal officer upon whom the notice was served has the onus of establishing that the document concerned is not a document as described in section 8(1) or section 11(1). | |
| (2) | In proceedings under this Division (except under section 50(3D)), the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant. | |
Section 55 outlines which party is required to show or establish certain matters in a Victorian Civil and Administrative Tribunal (VCAT) review. This is referred to as the ‘onus.’
Where a decision is made to refuse access to a document
If an agency or Minister refuses access to a document, the agency or Minister that made the decision must show that their decision was justified or that VCAT should make a decision that is adverse to the applicant.4 For example, if an agency refuses access to a document under an exemption, the agency must establish why the document is exempt.
Where notice is given under section 12 to specify a document in a Part II statement
If a person gives an agency a notice under section 12 to specify a document in the agency’s Part II statement, in a VCAT review the principal officer upon whom notice was served must show that the relevant document is not a document as described in section 8(1) or section 11(1).
Where a decision is to refuse to amend a record
An applicant and the agency or Minister bear the onus of showing different matters.
The applicant must establish why the document should be amended or corrected.8 The agency or Minister must then justify the decision to not amend the document.
Example
Roberts v Victoria Police [2004[ VCAT 1660
The applicant made several applications to the agency requesting amendment of records in police documents.
VCAT decided that the applicant bore the initial burden to provide evidence making out the case against the agency.
After this, the burden fell on the agency to justify the decision it had made to not correct the documents.
Other circumstances
VCAT has articulated which party bears the onus in certain circumstances:
- If a factual matter is disputed, the party who bears the onus will be expected to tender some evidence.11
- If an agency refuses to neither confirm nor deny the existence of certain documents (under section 27(2)), they must show that they are entitled to do so.12
- Freedom of Information Act 1982 (Vic), section 55(2).
- Department of Health and Human Services v Herald and Weekly Times Pty Ltd [2015] VCAT 291 [9].
- Freedom of Information Act 1982 (Vic), section 55(2).
- Freedom of Information Act 1982 (Vic), section 55(2).
- Department of Health and Human Services v Herald and Weekly Times Pty Ltd [2015] VCAT 291 [9].
- Freedom of Information Act 1982 (Vic), section 55(2).
- Mawkes v Department of Human Services [2001] VCAT 1758.
- Mawkes v Department of Human Services [2001] VCAT 1758.
- Penhalluriack v Department of Labour and Industry (unreported, County Court, Vic, Lazarus J, 19 December 1983) 56.
- Thorne v Victoria Police (1998) 13 VAR 324.
- Penhalluriack v Department of Labour and Industry (unreported, County Court, Vic, Lazarus J, 19 December 1983) 56.
- Thorne v Victoria Police (1998) 13 VAR 324.
