Who says so?

The Right of a Man or Woman to Demand Identification, Authority, and Reasons from Public Officers in Australia

Veritas nihil veretur nisi abscondi – truth fears nothing but concealment.

Introduction

When a public officer sends a notice, makes a demand, issues a compliance order, or refuses a request, the communication frequently arrives signed by a role title alone. “FOI Officer.” “Compliance Officer.” “Customer Service Representative.” “Building Inspector.” No name. No delegation reference. No statutory provision identified. No path back to the man or woman who made the decision and who, in law, is personally responsible for it.

This is not accidental. Institutional anonymity is a structural practice that deflects personal accountability. It conflates the institution with the individual, obscures the authority chain, and makes it difficult for the man or woman affected to know who decided, by what power, on what basis, and with what authority.

The law does not support this practice. What follows sets out, accurately, what a man or woman can invoke to compel identification, authority, and reasons from public officers – whether Commonwealth, State, or local government – and what consequences flow from a failure to provide them.

Part 1 – The foundational principle

The rule of law imposes four specific obligations on any officer exercising public power over a man or woman. These are not aspirational standards. They are legal requirements:

Transparency – a public officer exercising power must identify the source of that power. A man or woman affected is entitled to know, in plain terms, the authority relied upon, the decision made, and the reasons for it.

Consistency – the law must be applied consistently and without bias. Decision-makers must be, and be seen to be, impartial.

Proportionality – where a discretion is exercised, it must be proportionate to the legitimate aim pursued. A penalty disproportionate to the breach, or imposed without genuine prior consideration of the circumstances of the man or woman affected, is susceptible to challenge.

Good faith – the power must be exercised honestly, for a proper purpose, and not for an ulterior or improper one.

These obligations are grounded in Magna Carta 1297 (unrepealed, received into Australian law, an original held at Parliament House Canberra), the Liberty of Subject Act 1354 (28 Edw III c 3, unrepealed, cited in APH Infosheet 23), the Observance of Due Process of Law Act 1368 (42 Edw III c 3, unrepealed, cited in APH Infosheet 23), and the Bill of Rights 1688 – all of which remain operative in Australian law. Together they establish that no free man or woman shall be condemned, nor compelled to answer, without due process of law. Due process requires, at minimum, that the man or woman know who is acting, under what authority, and why.

Part 2 – The right to know who decided and under what authority

There is no single statute that expressly requires every public officer to sign correspondence in their own name. But the law provides several mechanisms that, used correctly, make sustained anonymity very difficult to maintain.

The authority chain demand

Every public officer exercising a statutory power must be able to identify:

• The specific provision of the specific Act under which the power is exercised
• The instrument of delegation under which that specific officer was authorised to exercise the power, where the power was originally vested in a more senior officer or the agency head
• The name and title of the officer exercising the power

The principle that a delegate cannot further delegate without express statutory authority means the delegation chain must be traceable and unbroken from the statutory source to the individual officer. A gap in that chain means the officer was not authorised. An act without authorisation is beyond power and void regardless of the form in which it was communicated.

A formal written demand for the authority chain is not a technical procedural game. It is a lawful requirement that any exercise of public power be traceable to its constitutional and statutory source. An officer who cannot or will not produce that chain has not established that the notice, demand, or decision has legal force.

The formal demand – what to include

A written demand to a public officer or agency should require:

• The full name of the officer who authored, signed, or made the communication
• The full name and title of the officer who made the underlying decision, where different
• The specific Act and section under which the power is exercised
• The number and date of the instrument of delegation under which the officer acted
• Confirmation that the officer accepts personal responsibility for the communication in their capacity as the man or woman exercising the public power

The written demand should state expressly that a response signed only by a role title, without a name, will be treated on the record as a response from an unidentified agent whose authority has not been established, and will accordingly be given the weight appropriate to an anonymous instrument – which, in law, is none.

Part 3 – The right to a statement of reasons

The principle

Where a statute requires a decision-maker to give reasons for a decision, those reasons must explain the actual path of reasoning by which the decision-maker arrived at the decision, in sufficient detail to allow a court to identify whether any error of law was made. A statement that does not identify the decision-maker or the statutory basis provides no path of reasoning at all and is defective on its face.

Where no statutory duty to give reasons exists, there is no free-standing common law duty to do so. The duty arises only where the statute imposes it. The mechanisms set out below are the instruments through which that duty is engaged.

Commonwealth decisions – the ADJR Act s 13

Under s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) – verified to the AustLII primary text – a person entitled to apply to the Federal Court under s 5 in relation to a decision to which the Act applies may, by notice in writing to the person who made the decision, request that person to furnish a written statement setting out the findings on material questions of fact, the evidence or other material on which those findings were based, and the reasons for the decision.

Under s 13(2), the person who made the decision must, as soon as practicable and within 28 days of receiving the request, prepare and furnish that statement personally.

The obligation is placed by the Act on the person who made the decision – not on the agency as an institution. Section 17 of the Act makes separate provision for circumstances where the decision-maker no longer holds the relevant office, which confirms the personal character of the obligation. The statement must be that of the officer who decided, not a generic institutional response. It is through this mechanism that the identity and authority of the decision-maker can be established where an institution has otherwise communicated through anonymous role titles.

Three qualifications must be observed:

First, the right does not apply to decisions already accompanied by adequate reasons, to decisions in relation to which s 268 of the Administrative Review Tribunal Act 2024 applies, or to decisions listed in Schedule 2 of the ADJR Act. Schedule 2 contains a significant range of excluded classes. It must be checked before any reliance on s 13 is placed.

Second, the right is time-limited. Where the written decision was furnished to the applicant, the request must generally be made within 28 days of that date. In other cases the request must be made within a reasonable time. A request made outside that period may be refused, though the Federal Court has power under s 13(6) to declare that a request was made within a reasonable time.

Third, where the decision-maker considers the applicant was not entitled to make the request, the decision-maker may within 28 days give notice of that opinion or apply to the court under s 13(4A) for an order to that effect, and is not required to comply until the court determines the question.

The ADJR Act applies to decisions of an administrative character made under a Commonwealth enactment. It does not apply to State agency decisions.

State decisions in Western Australia – the Judicial Review Act 2000 (WA)

The equivalent State instrument is the Judicial Review Act 2000 (WA). Section 16 provides the right to request a statement of reasons from the decision-maker in relation to a “reviewable decision” – defined as a decision of an administrative character made, or required to be made, under a written law of Western Australia.

This captures State government departments and their officers, statutory authorities and their officers, and local government bodies and their officers where acting under a written law. It applies to building inspectors issuing compliance notices under the Building Act 2011 (WA), planning officers exercising powers under the Planning and Development Act 2005 (WA), health officers, rangers, revenue officers, and any other officer exercising a specific power conferred by State statute.

The same personal obligation applies as under the Commonwealth Act. The statement must be that of the officer who made the decision, must identify the statutory basis, and must set out the findings on material questions of fact and the reasons. The same time limits and qualifications apply. The decision must be made under a written law – purely operational or internal administrative decisions without a specific statutory foundation may not be captured.

Other States and Territories

Each Australian State and Territory has its own judicial review and reasons legislation. In Queensland the Judicial Review Act 1991 (Qld) applies. In NSW judicial review operates significantly through the Supreme Court’s common law jurisdiction. In Victoria primarily through the Supreme Court’s inherent jurisdiction supplemented by the Administrative Law Act 1978 (Vic). In all jurisdictions the underlying principle – that a decision-maker exercising statutory power must be identifiable and must be able to give reasons – is the same.

Part 4 – Freedom of Information as an identification tool

Where an officer has communicated anonymously by role title, an FOI request under the Freedom of Information Act 1982 (Cth) for Commonwealth agencies, or the Freedom of Information Act 1992 (WA) for WA State and local government agencies, can be directed specifically at internal documents relating to the matter – file notes, emails, correspondence records, and delegation instruments – all of which will routinely contain the names of the officers involved.

The production of those documents provides the identification that the officer’s signature withheld. The failure to produce them, where they exist, engages the principle that all things are presumed against one who withholds or destroys evidence.

APS employees are expressly prohibited by the APS Code of Conduct from providing false or misleading information in response to a request for information made for official purposes in connection with their APS employment. An officer who responds to an FOI request in a manner that obscures the identity of the decision-maker where that identity is material is at risk of breaching this obligation.

Part 5 – The Ombudsman

A complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 (Cth), or to the WA Ombudsman under the Parliamentary Commissioner Act 1971 (WA), about an agency’s handling of a matter compels the agency to identify who did what and when. The Ombudsman has power to require agencies to produce documents and to answer questions. The investigation process invariably lifts the anonymous veil because the Ombudsman cannot assess conduct without knowing whose conduct it is.

The Ombudsman cannot award damages or quash a decision, but findings of maladministration carry significant institutional weight and the agency must respond. The Ombudsman is an accessible, cost-free pathway particularly suited to cases where the conduct falls short of the threshold for judicial review but the anonymity and procedural failure are documented and clear.

Part 6 – Review pathways by decision-maker type

Part 7 – Where no specific statute applies

Where a decision is not made under a specific written law – purely internal operational decisions, policy communications, or administrative correspondence that does not constitute a formal statutory decision – the specific reasons statutes may not apply. In those circumstances the common law right to procedural fairness remains available.

Where a decision affects recognised rights or legitimate expectations, the common law requires that the man or woman be heard and be given adequate notice of the basis of the decision before it is made. A decision made in breach of the hearing rule – the principle that each side must be heard before a decision adverse to them is made – may be void for jurisdictional error and subject to judicial review in the Supreme Court regardless of whether a specific reasons statute applies.

The equitable doctrine of wrongful silence also applies: where a public officer holds information relevant to a man or woman’s legal rights, knows of that person’s position, remains silent, and then takes advantage of that silence to enforce a consequence, equity may intervene.

Part 8 – The practical sequence

When any notice, demand, or communication is received from a public officer or agency, the following sequence preserves the man or woman’s position and builds the record:

1. Record the date of receipt and the precise terms of the communication.
2. Note whether the communication is signed by a name or a role title only.
3. Identify the specific statutory provision relied upon, if stated. If not stated, that omission is itself significant.
4. Formally demand, in writing, the full name of the officer, the specific statutory provision, and the delegation instrument if applicable.
5. Request a statement of reasons under the ADJR Act s 13 (Commonwealth) or the Judicial Review Act 2000 (WA) s 16 (State or local government), as applicable. Check Schedule 2 of the ADJR Act first. Observe the 28-day time limit.
6. Make a targeted FOI request directed at internal records identifying the officers involved and the basis of the decision.
7. If the response remains inadequate, file an Ombudsman complaint.
8. If the decision is reviewable, file for review with the SAT or apply to the Supreme Court for judicial review. SAT review may suspend enforcement timelines.
9. Document all detriment suffered by reason of the decision and the institutional non-response, for the purposes of costs consequences in any subsequent proceedings.
10. Reserve in writing all rights at common law, in equity, and under statute. No act or omission in engaging with the process constitutes a concession of the jurisdiction or authority of the body to which you are responding.

Conclusion

There is no legal entitlement for a public officer to remain anonymous when exercising power over a man or woman. The right of the man or woman to know who decided, by what authority, and for what reasons, is grounded in the oldest operative law of this country – law that predates Federation, predates the Commonwealth, and predates the statutory frameworks through which public officers now act. Those frameworks did not extinguish that right. They gave it additional procedural expression.

An anonymous decision-maker is a decision-maker who has not established their authority. An act without established authority is, at law, no act at all.

Qui tacet consentire videtur – who is silent is taken to consent.

The silence, in this context, runs both ways.

Last Updated 3 months ago

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