See also Responding to agencies, and Disclosure Agreement.
[our ref FOI-2026-02-28-020]Let me verify the legal accuracy of the core elements before drafting.
The source material is verified and accurate. The legal elements check out against the Australian Government Solicitor briefing, the AGS Legal Briefing No. 115, Clayton Utz, and the Robodebt Royal Commission analysis. Here is the article:
When Public Officers Fail to Answer: Misfeasance, Nonfeasance, and the Duty of Honest Disclosure
Public agencies exercise power on behalf of the community. When they do so – issuing decisions, processing requests, responding to correspondence – they are not performing a favour. They are discharging a duty. The law recognises this, and it provides consequences when that duty is performed dishonestly, incompletely, or not at all.
Three legal concepts are relevant when an agency or its officers respond to a request in a way that is evasive, incomplete, or deliberately misleading. Understanding the distinction between them is important for anyone engaging with a public body, including through a Freedom of Information process.
Misfeasance in Public Office
Misfeasance in public office is the only public law tort recognised in Australia. It is a civil wrong that may be redressed by an award of damages, and relates to the intentional misuse of public power by a public officer.
The tort has two forms. The first is targeted malice: the public official engaged in the conduct maliciously with the intention of causing injury or damage, or for an improper or ulterior purpose. The second is reckless dishonesty: the official acted knowing they had no power to do so, or with reckless indifference to whether they had power, and knowing their act was likely to cause harm.
Misfeasance in public office is an intentional tort and will only be established if the public official’s conduct was done maliciously or in bad faith. This is the key element of this tort, which is concerned not with negligence, but with a dishonest exercise of power involving bad faith on the part of the decision-maker.
The threshold is high. Proving the knowing abuse of public power is at the heart of establishing the tort. A finding of misfeasance in public office, particularly against a Commonwealth Government Minister, is a grave matter with potentially serious legal consequences. Courts have consistently held that it is more likely a judge would find a public officer to be incompetent than accept that they acted with malicious intent.
The Robodebt Royal Commission illustrates precisely where the boundary lies. The final report stated that elements of the tort of misfeasance in public office appear to exist, yet earlier civil proceedings struggled because, as the Federal Court found in 2020, there was insufficient evidence to prove the government knew the scheme was unlawful from the outset. The commission subsequently found that this characterisation was too generous – that officials had continued the scheme after its illegality became apparent, doubled down in the face of complaints, and misled Cabinet. That shift – from incompetence to knowing continuation – is precisely the territory in which misfeasance becomes arguable.
Why Incomplete or Evasive Responses Are Relevant
When a public officer responds to a lawful request – including an FOI request – with a formulaic assertion rather than a substantive answer, this may on its face appear to be mere bureaucratic caution. However, the pattern of conduct matters. A single incomplete response may be negligence. A repeated pattern of responses that consistently deflect, compress attribution into rhetoric, and avoid confirming or denying the existence of records, while an officer knows that their responses are incomplete and that the requester is thereby denied access to information they are legally entitled to, moves closer to the territory of knowing indifference to the illegality of the act.
It is somewhat unclear whether the administrative law distinction between errors within jurisdiction and jurisdictional errors is an apposite distinction for the purposes of the tort of misfeasance. Given that the tort provides a remedy in cases of deliberate or reckless misuses of power, there is much to be said in favour of a lower test – namely, that the act or decision of the public official was contrary to law and therefore liable to be set aside on judicial review.
Put plainly: an officer who processes an FOI request knowing that their search was not conducted across the categories of records expressly sought, and who confirms the search as thorough when it was not, is not making an innocent error. They are making a representation they know to be incomplete. Whether that rises to misfeasance depends on whether they knew the act was contrary to law and were indifferent to the harm caused by it.
Nonfeasance
Where misfeasance is doing something wrongly, nonfeasance is not doing the required thing at all. It is the intentional failure or neglect to perform a required duty or obligation, resulting in potential harm – an act of omission rather than commission.
In the context of FOI responses, nonfeasance arises when an agency fails to search the categories of records it is obliged to search, fails to identify and schedule documents it is obliged to identify, or fails to provide reasons it is obliged to provide – not because it searched and found nothing, but because it did not search at all. The act of omission is the failure to perform the duty. The formula “thorough searches were conducted” in response to a request that asked whether specific categories were searched is not a search – it is a statement about a search whose scope is unconfirmed.
The distinction between the three concepts maps onto conduct as follows:
Malfeasance is taking wrongful or illegal action – for example, deliberately destroying records before a search is conducted.
Misfeasance is doing the job wrongly with bad faith – confirming a thorough search while knowing it did not extend to the categories requested, and knowing that representation is false.
Nonfeasance is not doing the job at all – not searching the relevant categories because it was inconvenient, and not disclosing that omission.
The Practical Significance for FOI Requesters
The significance of these concepts for anyone pursuing an FOI request is not that a misfeasance claim is easy to bring – it is not. The significance is that the record matters. Each response that deflects rather than answers, each confirmation that searches were thorough without confirming their scope, each failure to answer a direct question about whether internal records were searched, builds a record. That record documents the pattern of conduct. If the pattern is consistent, if the responses are formulaic, if the same compressed rhetoric appears across multiple decision-makers in the same department, the inference of knowing indifference to the duty of disclosure becomes more supportable.
The consequences for governments of a successful tort claim are more significant than a successful judicial review application. Where a claim in tort is successful, the defendant is liable to pay compensation in the amount ordered by the court.
Personal liability is also a live consideration. The tort of misfeasance in public office creates personal liability. The State may not be liable for actions of its officers which amount to misfeasance. An officer who signs a response they know to be incomplete cannot always rely on the agency to indemnify them.
The duty of public officers is to exercise their power for the public good, not to preserve institutional continuity at the expense of honest disclosure. Where they fail that duty – whether through action, omission, or a pattern of evasion – the law provides a framework for accountability. It is a high bar. But the record built through precise, patient, documented engagement is the foundation on which that bar can be approached.
Veritas odit moras – truth is ill-served by delay.
Note: this article is general information only and does not constitute legal advice. Anyone considering a misfeasance claim should obtain independent legal advice.
Last Updated 5 months ago
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