Andrews and Australian Research Council
[2007] AATA 1026
•25 January 2007
CATCHWORDS – FREEDOM OF INFORMATION – request for documents relating to business affairs and containing personal information – obligation to notify under ss 59(3) and 59A(3) of the Freedom of Information Act 1982 – whether fulfilment of obligation can be deferred until Tribunal reviewed claims for exemption under ss 41 and 43 – scope of obligation – what are “reasonable steps” – whether regard can be had to impact of compliance on agency – when is “as soon as practicable” – obligation cannot be deferred and cannot be qualified by considerations relating to third parties
Freedom of Information Act 1982 ss 3, 4, 11, 15, 15A, 16, 20, 24A, 27, 27A, 33, 36, 37, 38, 40, 41, 43, 55, 58, 59 and 59A
Administrative Appeals Tribunal Act 1975 ss 33, 42A and 43
Law and Justice Legislation Amendment Act 1994
Freedom of Information Amendment Bill 1991
Migration Act 1958 s 198
Income Tax Assessment Act 1936 s 222AOJ
Re Yun Jin Ho and Human Rights and Equal Opportunity Commission [1998] AATA 790
Re Rees and Australian Federal Police (1999) 57 ALD 686
Re Allrange Tree Farms Pty Ltd and Deputy Commissioner of Taxation (2004) 84 ALD 238
Re Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 783
Thompson v Goold & Co [1910] AC 409
Newcastle City Council v GIO General Ltd (1997) 149 ALR 623
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; 199 ALR 290
NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; (2003) 80 ALR 799
Ni v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1143
The State of Western Australia v Rothmans of Pall Mall (Australia) Ltd [2001] WASCA 25
Re Langer and Telstra Corporation Ltd (2002) 68 ALD 762
Lewai v Minister for Immigration and Multicultural Affairs and Davidson [2001] FCA 1848
Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283
Chu v Telstra Corporation Ltd (2005) 147 FCR 505; 89 ALD 39
Deputy Commissioner of Taxation v Pejkovic [2000] NSWSC 1176
Rolfe v Willis (1916) 21 CLR 152
DECISION AND REASONS FOR DECISION [2007] AATA 1026
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2006/287
GENERAL ADMINISTRATIVE DIVISION )
Re SHARON ANDREWS
Applicant
AndAUSTRALIAN RESEARCH COUNCIL
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 25 January 2007
Place: Melbourne
Decision:The Tribunal:
1.will defer the review of the merits of the decision under review until the Australian Research Council has complied with its obligations under ss 59(3) and 59A(3) of the Freedom of Information Act 1982 .
2.will hold a directions hearing on a day to be fixed in order to gain an understanding of the Australian Research Council’s progress in fulfilling its obligation.
S A FORGIE
Deputy President
REASONS FOR DECISION
The applicant, Ms Sharon Andrews, made a request to the Australian Research Council (ARC) under the Freedom of Information Act 1982 (FOI Act). In broad terms, she requested correspondence received by the Minister from the ARC, or its members, in relation to the approval or rejection of financial assistance for a project under the National Competitive Grants Program for 2004 and 2005. She also requested correspondence from the Minister to the ARC providing details of projects recommended for funding under that programme but not approved by the Minister. Access was granted to some documents. In relation to others, it was refused and the decision affirmed for the most part on the basis of their being exempt under ss 36, 40(1)(d) or 41 of the FOI Act.
Before the substantive hearing of the merits of Ms Andrews’ application can take place, I have been asked whether the ARC must notify certain persons other than Ms Andrews of her application at this stage. In broad terms, those certain persons are those about whom there is personal information or business affairs information in the documents requested and to which access has been refused. That information may, or may not, be exempt from disclosure under ss 41 or 43 of the FOI Act. The ARC submits that it need not notify them until the Tribunal has considered whether the documents are exempt under other provisions of the FOI Act such as ss 36 and 40(1)(d). Whether the ARC must notify them depends on the ambit of the obligation imposed in ss 59(3) and 59A(3) of the FOI Act. I have decided that its obligation to take, as soon as practicable, reasonable steps to notify the relevant persons arises immediately upon Ms Andrews’ applying to the Tribunal. The Tribunal does not have power to mitigate that obligation.
LEGISLATIVE BACKGROUND
Broad overview of right of access
Although the argument in this case centres on the provisions of s 59A, I will begin with a very broad overview of the access provisions of the FOI Act. In so far as that aspect is concerned, the object of the legislation is said in s 3 to be:
“… to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a)…
(b)creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; …
(c)…”
Regard needs also to be had to s 3(2), which provides:
“It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretion conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.”
The right of access is set out in s 11:
“(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.
(2)Subject to this Act, a person’s right of access is not affected by:
(a)any reasons the person gives for seeking access; or
(b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.”
Requesting access to a document
In order to exercise this right, a person seeking access to a document must request, in the context of this case, access to a document of an agency.[1] That person is known as the “applicant”.[2] The applicant’s request must conform with s 15(2) and there is no question that Ms Andrew’s request did so.
[1] s 15(1)
[2] s 4(1)
Time within which a decision must be made on request for access to a document
Section 15(5), to which s 27A(1) refers, sets the time limits within which the agency or Minister must acknowledge receipt of a request and notify the applicant of a decision. In relation to the notification of the decision, s 15(5)(b) provides:
“On receiving a request, the agency or Minister must:
(a) …
(b)as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document).”
Section 15(6) give an agency or a Minister power to determine that “… in relation to a request … the requirements of section 26A, 27 or 27A make it appropriate to extend the period referred to in paragraph (5)(b) …”. If that determination is made, s 15(6) provides that:
“(a) the period is to be taken to be extended by a further period of 30 days; and
(b)the agency or Minister must, as soon as practicable, inform the applicant that the period has been so extended.”
The sections referred to in s 15(6) set out the procedure to be followed if a request is made for a document concerned with particular subject matter. It is not a general power to extend the time limit prescribed by s 15(5). Those sections and the documents they concern, are:
section 26A: documents likely to affect Commonwealth-State relations;
section 27:documents relating to business, professional, commercial or financial affairs; and
section 27A: documents containing personal information.
Procedure if a request is made for a document containing personal information
Sections 27 and 27A are relevant in this case. Both set out the procedure that an agency or Minister must follow on receipt of a request for access to documents containing certain types of information. The sections are similar but not identical and I will set them out separately. Section 27 applies to the procedure when a request is received in respect of documents relating to business affairs and the like. Section 27A applies to the procedure when a request is in respect of documents containing personal information. Both are relevant in this case but, as their procedures and related provisions in the FOI Act are very similar, I will set out only those relating to requests for a document containing personal information. I will note the appropriate provision relating to requests for documents relating to business affairs and the like and any differences.
Section 27A applies if:
“(a) a request is received by an agency or Minister in respect of a document containing personal information about a person (including a person who has died); and
(b)it appears to:
(i)the officer or Minister dealing with the request; or
(ii)a person (the reviewer) reviewing under section 54 a decision refusing the request;
that the person referred to in paragraph (a) or, if that person has died, the legal personal representative of that person, might reasonably wish to contend that the document, so far as it contains that information, is an exempt document under section 41.”[3]
Regard must be had to s 27A(1A) before an officer, Minister or reviewer can decide whether a person might reasonably wish to contend that a document, so far as it contains personal information, is an exempt document under s 41. Section 27A(1A) provides that:
“… the officer, Minister or reviewer, as the case requires, must have regard to the following matters:
(a)the extent to which the personal information is well known;
(b)whether the person to whom the personal information relates is known to be associated with the matters dealt with in the document;
(c)the availability of the personal information from publicly accessible sources;
(d)such other matters as the officer, Minister or reviewer, as the case requires, considers relevant.”
[3] s 27A(1AA)
Even if it appears to an officer, Minister or reviewer that a person might reasonably wish to contend that a document, so far as it contains personal information, is an exempt document under s 41, an officer is not automatically required to notify the subject of that personal information before making a decision whether or not to grant it. The effect of s 27A(1) is that, if the decision is to refuse access to that information, the person need not be informed of the request at that stage. If the decision is to grant access, then regard must be had to that provision. It provides:
“A decision to grant access under this Act to the document or an edited copy of the document, so far as it contains that information must not be made unless, where it is reasonably practicable to do so having regard to all the circumstances (including the application of subsections 15(5) and (6)):
(a)the agency or Minister has given to the person or the legal personal representative of the person, as the case may be, a reasonable opportunity of making submissions in support of a contention that the document or edited copy, so far as it contains that information, is an exempt document under section 41; and
(b)the person making the decision has had regard to any submissions so made.”
If a person takes advantage of any opportunity offered to make submissions and makes them in accordance with s 27A(1) but the agency or Minister decides that the document is not an exempt document under s 41, the agency must comply with the provisions of s 27A(2). It has two aspects. One is that the agency or Minister is required to give the person who made written submissions written notice of its decision.[4] This is in addition to its obligation to give written notice of that decision to the person requesting the document. The second aspect is that the agency or Minister must not give access to the document, or an edited copy of it, in so far as it contains that personal information unless one of three things has happened. The first is that the time within which the person making submissions might apply to the Tribunal for review under s 59A has passed. The second is that an application has been made under s 59A but the application has been dismissed under s 42A of the Administrative Appeals Tribunal Act 1975 (AAT Act). The third is that such an application has already been made but the Tribunal has “confirmed”[5] the decision.[6]
Section 41: document is an exempt document if unreasonable disclosure of personal information about a person
[4] s 27A(2)(a)
[5] Section 27A(2)(b)(ii) uses the word “confirm” but, in the absence of any provision in the FOI Act altering the Tribunal’s powers, reference needs to be made to the AAT Act. Section 43… of the AAT Act uses the word “affirm”, rather than “confirm”, when the Tribunal agrees that the decision under review is the correct or preferable decision.
[6] s 27A(2)(b)(i), (ii) and (iii)
Although I have focused on the procedural aspects of s 27A, it is also relevant to have regard to s 41 of the FOI Act. That section is pivotal because s 27A only comes into play if it appears that a person, might reasonably wish to contend that a document requested, so far as it contains that information, is an exempt document under s 41. The general exemption is set out in s 41(1):
“A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).”
That general exemption does not apply to a document if it contains matter that comes within the description in s 41(1) but that matter relates only to the person requesting it.[7]
Modifications to form in which access may be given if document contains certain forms of personal information
[7] s 41(1)
Once a decision has been made to grant access, the form in which that access is given is generally governed by the provisions of s 20 of the FOI Act. The applicant may be given a reasonable opportunity to inspect it or to be given a copy. If it is an article or thing from which sounds or visual images are capable of being reproduced, arrangements may be made for the person to view those images or hear those sounds. Where words are capable of being reproduced in sound or are kept in some sort of codified form, the agency or Minister may provide a written transcript of the words they represent.[8] If an applicant has asked to be given access in a particular form, then access must be given in that form unless doing so would lead to one of the outcomes referred to in s 20(3).[9] Only s 20(3)(a) is relevant and it provides:
“If the giving of access in the form requested by the applicant:
(a)would interfere unreasonably with the operations of the agency, or the performance by the Minister of his or her functions, as the case may:
access in that form may be refused and access given in another form.”
[8] s 20(1)
[9] s 20(2)
In the case of a document containing personal information relating to the applicant there are other qualifications to the general position. They are found in s 41. Some information held by an agency or a Minister comes from people such as medical practitioners and social workers. Disclosure of that information might be thought to be detrimental to the applicant’s health or well-being. Therefore, s 41 sets out a special procedure to try to minimise any such detriment where access is to be given to a document that contains information concerning the applicant and that was provided by a qualified person.[10] It does so by providing that the principal officer of an agency or a Minister may give access to a qualified person, rather than the applicant, if:
“(a) … a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and
(b)it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant’s physical or mental health, or well-being …”.[11]
The qualified person must carry on the same occupation as the person who provided the information in the first place and has been nominated by the applicant.[12]
[10] A “… qualified person means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well-being and, without limiting the generality of the foregoing, includes any of the following: (a) a medical practitioner; (b) a psychiatrist; (c) a psychologist; (d) a marriage guidance counsellor; (e) a social worker.”: s 41(8)
[11] s 41(3)
[12] ss 41(3)(c) and (d)
In certain circumstances, the FOI Act also provides for a qualified person to be told that access to a document has been given to an applicant. Those circumstances will arise if a principal officer or a Minister decides to give an applicant access to a document containing information that is personal information of a medical or psychiatric nature about that person and that information has been provided by, or originated from, a qualified person acting in the capacity of a qualified person. Once the relevant circumstances have arisen, “the principal officer or Minister (as the case may be) must notify the qualified person that access to the document has been so given.” That is the effect of s 41(4) but it “… does not apply if it is not reasonably practicable to notify the qualified person.”[13] In deciding whether or not it is reasonably practicable to notify the qualified person, regard must be had to s 41(6):
“Without limiting the matters that may be considered in deciding whether it is not reasonably practicable to notify the qualified person, consideration is to be given to:
(a)the length of time since the information was provided by, or originated from, the qualified person;
(b)the likelihood that the qualified person is still carrying on the same occupation; and
(c)the frequency with which, but for subsection (5), the principal officer or Minister would be required to make notifications under subsection (4); and
(d)the resources available to make such notifications.”
[13] s 41(5)
The review of certain decisions in respect of documents containing personal information
Putting aside decisions not to claim an exemption that is available to any agency or Minister or decisions,[14] as to the form in which access may be given and decisions relating to certain procedural aspects, there are two possible decisions that may be given by the agency or the Minister in relation to a request. One is that the document is exempt and the other that it is not. In the case of a document that contains personal information about a person, other than the applicant, the decision that is taken has different consequences for that person.
[14] While that discretion is available to the agency or Minister, it is not available to the Tribunal: s 58(2).
Where a request for access to a document containing personal information has been made, the agency or Minister decides that the document, or an edited copy of the document, is not an exempt document under s 41, the person may apply to the Tribunal for review of the decision.[15] Where a person makes such an application, all of the provisions of Part VI of the FOI Act other than s 55, apply in relation to the application.[16] In addition, the agency or Minister must tell the person who requested the document of the application.[17]
[15] s 59A(1)
[16] s 59A(2)(a)
[17] s 59A(2)(b)
That brings me to s 59A(3), which is at the heart of this case. It provides:
“Where:
(a)on a request having been made for access to a document containing personal information about a person (including a deceased person), an agency or Minister decides not to grant access to the document; and
(b)an application is made to the Tribunal for review of the decision;
The agency or Minister must, as soon as practicable, take all reasonable steps to inform the person, or, if the person is deceased, the legal representative of the person, of the application.”
Procedure, form of access and review if a request is made for a document containing business information etc
Section 43(1) of the FOI Act provides that:
“A document is an exempt document if its disclosure under this Act would disclose:
(a)trade secrets;
(b)any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
(c)information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:
(i)the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or
(ii)the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.”
As in the case of the exemption under s 41, s 43(2) excludes from the scope of the exemption those documents that would otherwise be exempt only because of the information that they contain about the person requesting them.[18]
[18] s 43(2)
The procedure that must be followed when a request is made for a document containing business information of the sort described in s 43 is found in s 27. I will not set it out in full as, in many respects, it sets out a procedure similar to that in s 27A. There is, though, one significant difference between them at the outset. That difference is that the procedure set out in s 27 must be followed whenever a document contains information about a person’s business or professional affairs or the business, commercial or financial affairs of an organisation or undertaking. Unlike s 27A, s 27 does not require an officer or Minister to come to the view that a person might reasonably wish to contend that the document, so far as it contains business information and the like, is an exempt document under s 43. Consequently, it does not include, and does not need to include, any provision such as s 27(1A) to guide the officer or Minister in deciding whether a person might reasonably wish to make such a contention.
As in the case of s 59A(1) in relation to a decision that a document is not exempt under s 41, s 59(1) provides that the person whom the information concerns may apply to the Tribunal for review of the decision if an agency or Minister decides that the document is not exempt under s 43. Other than s 55, the provisions of Part VI apply in relation to the application for review as they do in relation to an application under s 59A(1).[19]
[19] s 59(2)
The procedure set out in s 59(3) mirrors that in s 59A(3) where a request has been made for access to a document containing information concerning business affairs and the like, an agency or Minister decides not to grant access and an application is made to the Tribunal to review that decision. In those circumstances:
“the agency or Minister must, as soon as practicable, take all reasonable steps to inform the person or organisation, or the proprietor of the undertaking, of the application.”[20]
[20] s 59(3)
THE SUBMISSIONS
On behalf of the ARC, Mr Hyland submitted that “… the words between ‘must’ and ‘inform’ (‘as soon as practicable, take all reasonable steps to’) qualify the requirement to inform to such an extent that it admits of circumstances in which a respondent will not be required to inform a person of an application because there are no reasonable steps that may be taken.”[21] He went on to support his submission by reference to previous authorities regarding the meaning of the expressions “as soon as practicable” and “all reasonable steps” or similar expressions. He also referred to four previous decisions of the Tribunal in which the obligations under ss 59(3) and 59A(3) have been considered.
[21] Submission, 8 December 2005, [8]
Ms Andrews submitted that the word “must” indicates that the requirement to notify is mandatory. The words “as soon as practicable” relate to the time-frame allowed in relation to the consultation with third parties. They do not qualify the mandatory nature of the obligation imposed by s 59A(3). The words “all reasonable steps” relate to the means of consultation. The only question that is relevant in that context relates to the onerousness of the task. Failure to comply with the obligation prevents full investigation of ARC’s claim that disclosure of other person’s personal information would be unreasonable. The attitude of those person’s views regarding disclosure would be relevant to consider in deciding whether or not disclosure could be unreasonable.
CONSIDERATION
Previous Tribunal authorities
Mr Hyland drew my attention to four previous authorities considering the obligation. The earliest is Re Yun Jin Ho and Human Rights and Equal Opportunity Commission[22] decided by Senior Member Dwyer. After noting that s 59A(3) had often been overlooked, she said:
“… Section 59A(3) is mandatory. It is possible that the other complainants may consent to release of the personal information about them contained in the relevant documents. Their attitude on that issue would be a relevant matter for the Tribunal to take into account in deciding whether or not it is unreasonable that the names of their complaints be disclosed. This application cannot be finalised until there has been compliance with s 59A(3) and an affidavit setting out details of the steps taken in relation to s 59A(3) is lodged with the Tribunal.”[23]
[22] AAT No. 13231, 28 August 1998
[23] AAT No. 13231, 28 August 1998 at [14]
Senior Member Dwyer presided over a Tribunal that considered s 59A(3) the next year in Re Rees and Australian Federal Police.[24] Mr Rees had requested access to information relating to himself and held by the Australian Federal Police (AFP). That information included information that had come from enquiries that the AFP had made at the request of the Royal Hong Kong Police (RHKP). The AFP had decided that the documents were exempt under s 33(1), 37(1), 40(1)(d) and 41(1).
[24] (1999) 57 ALD 686 (Senior Member Dwyer and W McLean and G Woodard, Members)
The Tribunal reiterated the mandatory nature of s 59A(3). It had earlier said that it was unable to resolve many of the matters arising in respect of s 41(1) and the implication is that its inability was due to the AFP’s not having complied with s 59A(3) in relation to all persons whose personal information was referred to in the documents.[25] Having set out steps that the AFP could have taken to inform those persons, the Tribunal observed:
“ We are conscious of the demand on a respondent’s resources of taking all reasonable steps to inform people of applications to the tribunal. Where the respondent is a police force or other investigating authority there could be other reasons why a respondent may not want to inform a person that there is personal information about that person on a file. There could be operational issues concerning the secrecy of that information. It may be that in such a situation it could be claimed that it was reasonable to take no steps to inform the person of the application, but that submission was not made to us.”[26]
[25] (1999) 57 ALD 686 at 728-730
[26] (1999) 57 ALD 686 at 730
The Tribunal then noted that the information for which it had claimed exemption under s 41 fell into two groups:
“… The first group contains personal information about people who had come to the notice of the RHKP. The information was communicated in confidence by the RHKP to the AFP. Those documents are therefore exempt under s 33(1)(b). We find they are also exempt under s 41(1). It would not be reasonable to expect the AFP to take any steps to notify the people concerned about Mr Rees’ application. To do so would disclose to them the fact that the RHKP had communicated information about them in confidence to the AFP. …
A s 41(1) claim was made, but no letters under s 59A(3) were sent in respect of … [a number of] documents …
The correspondence between the tribunal and the AFP concerning this problem … referred to a number of other documents. The personal information contained in those documents appears to be merely incidental to other information. We have decided that it would not be unreasonable to release that personal information. We therefore decide that it is not appropriate to uphold s 41(1) exemptions claimed in respect of that personal information.
We propose to reserve our decision as to those claimed exemptions for the time being. We shall reserve leave to the AFP, if it still seeks to maintain s 41(1) exemption in respect of those documents to lodge a confidential affidavit within 30 days:
(i)specifying the precise part of each document in respect of which a s 41(1) exemption is claimed;
(ii)identifying the person whose personal information would be disclosed if Mr Rees were given access to the document;
(iii)setting out the steps which have been taken to inform the person of the application to this tribunal; and
(iv)annexing a copy of any letter sent to the person and a copy of any response or post office advice in respect of that letter.”[27]
[27] (1999) 57 ALD 686 at 730
More recently, Mr MJ Allen, Member considered the problem raised by s 59A(3) in Re Allrange Tree Farms Pty Ltd and Deputy Commissioner of Taxation.[28] He noted that the documents in dispute were claimed to be exempt under ss 38 and either ss 41 or 43 or both. In so far as they contained information described in ss 41 or 43, the Deputy Commissioner of Taxation (DCT) had not followed the procedures set out in ss 27 or 27A in relation to the documents in dispute. They had not been followed:
“… because it was considered that it was not practicable to do so in the circumstances. No particular consequences flow from that because the respondent has not granted access to the disputed documents that may contain information of that kind. I observer, however, that to the extent that the respondent relied originally on ss 41 and 43 to deny access to documents that were subsequently released to the applicant, the provisions of ss 27 and 27A would have been applicable.”[29]
[28] (2004) 84 ALD 238
[29] (2004) 84 ALD 238 at 241
The Commissioner had not complied with his obligations under ss 59(3) or 59A(3) either. Mr Allen said of the procedure set out in those sections that:
“… Such a procedure enables the person or organisation about whom information may be disclosed if the application to the tribunal is successful to seek to become a party to the tribunal proceedings. …”[30]
[30] (2004) 84 ALD 241
In view of the Commissioner’s failure to comply with the obligations, Mr Allen:
“… convened a directions hearing after the completion of the substantive hearing of the matter for the purpose of discussing with the parties how best to proceed. Because, as noted at [7] above, all of the documents in dispute are claimed to be exempt under s 38 and all but one are claimed to fall outside the scope of the request made by the applicant, I suggested to the parties that I proceed to make an interim decision that dealt with those two grounds. Any documents that I found should not be disclosed to the applicant under one or both of those grounds would not, therefore, need to be subjected to the procedures contemplated by ss 59 and 59A. The parties agreed with that suggestion and, accordingly, this decision and the reasons for it do not deal with the grounds of exemption claimed under sections 41 or 43 of the Act. In that sense it is an interim decision that may not finally dispose of all issues arising in the proceedings.”[31]
He went on to decide that all documents except three were either irrelevant to the request for access or were exempt under s 38. Those three documents were the subject of claims under ss 41 and/or 43 and he adjourned further consideration in order to hold a directions hearing to consider how the Commissioner should comply with the obligations under ss 59(3) and 59A(3).
[31] (2004) 84 ALD 241 at 241
The final case, to which my attention has been drawn, is that of Re Albanese and Chief Executive Officer of the Australian Customs Service,[32] in which it was said:
“55. … There is a mandatory obligation on an agency to take all reasonable steps to inform a person of proceedings in this Tribunal under the Act if the personal information of that person is in issue: subs 59A(3). Failure to comply with that obligation may result in a person being denied an opportunity to inform the Tribunal of their views concerning disclosure of their personal information, and may result in delay and additional costs. Furthermore, the Tribunal is then denied the benefit of the person’s evidence when considering relevant factors and balancing the various interests to decide the issue. Even though the views of the person may not be determinative of the matter, the agency concerned is obliged to take all reasonable steps to ensure the person has that opportunity.
56. There may be cases in which an agency may resist informing a person of such proceedings on the grounds that to do so would reveal the existence of confidential records containing their personal information that were otherwise not known to the person, the disclosure of which may prejudice law enforcement or public safety. In such cases it could be expected that access may be refused in the particular circumstances on grounds other than privacy, under s.37 if law enforcement activities may be prejudiced or under s.33A if the information was communicated in confidence between a State and the Commonwealth or under s.36 if internal working documents may be released contrary to the public interest for example. These are matters for agencies to consider on the facts of each case, and especially when asserting exemptions under s.41 of the Act.”
[32] [2006] AATA 783
These cases are predicated upon four principal tenets:
(1)The procedures set out in ss 27 and 27A and ss 59(3) and 59A(3) are mandatory;
(2)Following the procedure in ss 59(3) and 59A(3) is important because:
(a)it provides an opportunity for the subject of the personal or business information to inform the Tribunal whether or not there is any objection to its disclosure and, if so, the grounds for that objection by:
(i) writing to the agency or Minister concerned or to Tribunal; or
(ii) applying to become a party to the proceedings before the Tribunal; and
(b)it provides an opportunity for the Tribunal to know of those views when considering whether or not documents are exempt under ss 41 or 43; and
(3)The obligations do not arise if there are no reasonable steps that may be taken to inform a person under ss 59(3) or 59A(3):
(a)what are reasonable steps may be determined by reference, at least in part, to whether notification would disclose to that person information that is otherwise exempt under the FOI Act;
(4)The Tribunal may rely on its power under s 33 of the AAT Act, or on some other unspecified power, to:
(a)defer an agency’s or Minister’s obligations to comply with the obligations under ss 59(3) and 59A(3); and
(b)review part only of a decision to refuse access to a document in accordance with a request and defer consideration of any part that requires consideration of ss 41 and/or 43.
If I have correctly identified these tenets, they raise a number of questions. There is no question, of course, that ss 27 and 27A and ss 59 and 59A impose obligations upon an agency or a Minister. Those obligations arise when the conditions set out in those sections exist. Each section gives some room to move because each requires a consideration of the terms in which the obligations are expressed and of their application in the particular circumstances of the case. The questions that I have relate to:
(1)when the obligations in ss 59(3) and 59A(3) arise;
(2)the precise nature of the obligations i.e. what is meant by an obligation that “the agency or Minister must, as soon as practicable, take all reasonable steps to inform the person …” of the application; and
(3)on what basis, if any, may the obligations be moderated or deferred by any consideration that is not referred to in those sections or by any provision to which reference is not made.
I will attempt to answer these questions in the following passages.
CONSIDERATION
When do the obligations to follow the procedure in ss 59(3) and 59A(3) arise?
As presently drafted, the obligations under ss 59(3) and 59A(3) arise when:
(1)a request has been made;[33]
(2)for access to a document;[34]
(3)containing information concerning;
(4)either
(a)a person’s business or professional affairs or the business, commercial or financial affairs of an organisation or undertaking;[35] or
(b)personal information about a person;[36] and
(5)an agency or Minister decides not to grant access to the document;[37] and
(6)an application is made to the Tribunal for review of the decision.[38]
[33] ss 59(3)(a) and 59A(3)(a)
[34] ss 59(3)(a) and 59A(3)(a)
[35] s 59(3)(a)(i) and (ii)
[36] s 59A(3)(a)
[37] ss 59(3)(a) and 59A(3)(a)
[38] ss 59(3)(b) and 59A(3)(b)
On their face, neither ss 59(3) nor 59A(3) seeks to confine the notification provisions to circumstances in which ss 27 or 27A has previously come into play. Neither seeks to limit the circumstances to those in which the decision not to grant access to the document containing the business affairs information or personal affairs information has been made on the basis, or one of the bases, that the document, or an edited copy of it, would be exempt under ss 43 or 41, as appropriate. Neither seeks to limit their operation to circumstances in which the document requested has been found not to be exempt under provisions in Part IV of the FOI Act other than ss 41 and 43. Neither seeks to limit their operation to circumstances in which the Tribunal has reviewed any other basis on which the requested document may be exempt from disclosure or on which the agency may be entitled to refuse access.
Despite that, is some sort of limitation implicit in those sections? Is it a case in which words of limitation can be read into the sections to achieve the practical limitation that the ARC seeks to achieve in this case? That practical limitation would defer any obligation that the agency or Minister may have under ss 59(3) and 59A(3) to notify a person until all bases on which access may be refused other than those under ss 41 and 43 have been reviewed by the Tribunal.
There is some doubt about the extent to which the rules of statutory interpretation allow me to read words into an Act. If I am permitted to read words into ss 59(3) and 59A(3) at all,[39] they may only be read into it in limited circumstances. The principles used to identify those circumstances are variously expressed. According to Lord Mersey in Thompson v Goold & Co,[40] the:
“… It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. …”[41]
[39] Spigelman CJ, for example, does not accept that words can be read into legislation. The process must remain one of construction and that can only occur “So long as the court confines itself to the possible range of meanings or of the operation of the text – using consequences to determine which meaning should be selected – then the process remains one of construction.” (R v Young (1999) 46 NSWLR 681 at 688)
[40] [1910] AC 409
[41] [1910] AC 409 at 420
In more recent times, McHugh JA has said that:
“… when the purpose of a legislative provision is clear, a court may be justified in giving the provision ‘a strained construction’ to achieve that purpose provided that the construction is neither unreasonable nor unnatural. If the target of a legislative provision is clear, the court’s duty is to ensure that it is hit rather than to record that it has been missed. As a result, on rare occasions a court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose. In Jones v Wrotham Park Estates,[[42]] Lord Diplock said that three conditions must be met before a court can read words into legislation. First the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.”[43]
[42] [1980] AC 74 at 105
[43] Newcastle City Council v GIO General Ltd (1997) 149 ALR 623 at 642-643 (footnotes omitted). See also the general discussion by DC Pearce and RS Geddes, Statutory Interpretation in Australia, 5th edition, Butterworths, 2001 at [2.27]-[2.31].
In this case, the words that would need to be read into the provisions would be in the form of a qualification additional to ss 59(3)(a) and (b) and 59A(3)(a) and (b). They would be to the effect that either:
(1)the agency or Minister has decided to refuse to grant access to the document solely on the basis that it is exempt under ss 41 or 43 as the case might be; or
(2)if the agency or Minister has refused to grant access on some other basis, the Tribunal has reviewed the decision on those bases and decided that they cannot be maintained.
The mischief with which the FOI Act deals is clear both from its provisions generally and from its object clause generally. It seeks to extend the public’s access to information held by government Ministers agencies in documentary form. At the same time, it provides protection, in the form of the exemption provisions in Part IV, that can be called upon to justify a refusal to give access to the public where identified public interests and private interests justify it. I say that they can be “called upon” because an agency or Minister is not obliged to claim that a document is exempt even if it would be justified in doing so. The decision is a matter for its discretion.[44]
[44] The Tribunal does not have that discretion on review: s 58(2) of the FOI Act.
The provisions in ss 27, 27A, 59 and 59A are directed to the procedural aspects connected with the protection of the private interests that may be affected by a grant of access to a document under the FOI Act. On their face, they are intended to let the person whom the information concerns know that there has been a request for access to it. Over the years, the circumstances in which the person is made aware of the request have changed a little. I set out those changes in the following tables.
The similarities and differences between ss 27 and 27A since enactment
Although I am not directly concerned with ss 27 and 27A, they are important in that they also impose an obligation upon an agency or Minister when dealing with information of the sort specified in ss 59 and 59A. Section 27 appeared in the FOI Act as originally enacted but s 27A did not appear until 1988. Both have been amended since then. I will summarise their essential similarities and differences during their various forms:
| Enactment | Section 27 (business affairs etc) | Section 27A (personal affairs) |
| Freedom of Information Act 1982 | Where relevant information is requested concerning a person and it appears to the officer or Minister that the person might reasonably wish to contend that document exempt under s 43, a decision to grant access to the document is not to be made unless, where reasonably practicable to do so having regard to all circumstances (including time limits in s 19), that person is given reasonable opportunity to make submissions and regard to be had to submissions. Notice of decision to be given to person making submissions and access not to be given until time for application under s 59(1) expired or Tribunal confirmed the decision. | Not enacted and no equivalent provision |
| Privacy Act 1988, s101, Schedule 1 | No amendment. | Section 27A enacted in terms mirroring s 27. |
| Freedom of Information Amendment Act 1991, ss 17 and 18 | Amended by omitting requirement that it appear to the officer or Minister dealing with the request that person might reasonably wish to contend that document exempt under s 43. | Amendments mirror those made to s 27. |
| Law and Justice Legislation Amendment Act 1994, s 57 | No amendment | Amended by reinserting requirement that, before obligation to notify arises, officer or Minister must decide whether the person, who is the subject of the personal information in the document requested, might reasonably wish to contend that the document is exempt under s 41 in so far as it contains that information. |
When originally enacted, the obligation to notify the person concerned, whether under ss 27 or 27A, was dependent upon the officer or Minister’s first forming the view that the person might reasonably wish to contend that the document was exempt, in so far as it contained the relevant information, was exempt under ss 41 or 43. Since 1991, an agency or Minister cannot make a decision to grant access to a document containing information concerning a person’s business affairs and the like unless first complying with the obligation to notify set out in s 27. It does not matter whether the person might reasonably wish to contend that it is exempt or not. The very nature of the information raises the obligation to notify but it only does so if the decision is to grant access. It could be that a document contains information relating to a person’s business affairs but the agency or Minister decides to refuse access for another reason. It may be that the information is exempt under a provision of Part IV, including s 43, or it may be that there is a more procedural reason for refusing under Part III. If the decision is to refuse access, the person need never be told of the request when a decision is made upon it.
When first enacted, the FOI Act gave a person who was the subject of personal information in the requested document no rights at all. In 1988, the person was given the same right as a person whose business affairs were the subject of the information and, although subsequently amended, the two continued to reflect each other until 1994. Again, the person whom the personal information concerned did not need to be informed of the request if access was to be refused anyway. It appears that even with that limitation, the burden was too much. It is said in the Explanatory Memorandum to the Law and Justice Legislation Amendment Bill 1994 (1994 Amendment Bill) that the removal in 1991 of the requirement that it appear that a person might reasonably wish to contend that the document was exempt under s 41:
“… has meant that consultation is required on every occasion even where a person could not reasonably contend that disclosure was unreasonable. Clause 57 [inserting new ss 27(1AA) and (1A)] will allow agencies to decide not to consult where they believe the person consulted could not reasonably say that disclosing would be an unreasonable invasion of his or her privacy. The clause gives guidance on when it is not necessary to consult noting matters such as the extent to which his or her personal information is well known and whether the person is known to be associated with the matters dealt with in the document.”[45]
[45] Explanatory Memorandum, [136]
The similarities and differences between ss 59 and 59A since enactment
Sections 59 and 59A show a similar pattern of enactment and amendment. Again, I will summarise their essential similarities and differences during their various forms:
| Enactment | Section 59 (business affairs etc) | Section 59A (personal affairs) |
| Freedom of Information Act 1982 | Person who made submissions in accordance with s 27 and notified under s 27(2) of decision document not exempt under s 43, may apply for review of decision. Provisions other than ss 55 and 61 apply on review and person requesting access to be informed. Where decision refusing access to business affairs information made after person made submissions and an application for review made to Tribunal, the agency or Minister must forthwith inform the person who made the submissions of the application. | Not enacted and no equivalent provision |
| Privacy Act 1988, s101, Schedule 1 | No amendment. | Section 59A enacted in terms mirroring s 59. |
| Freedom of Information Amendment Act 1991, ss 40 and 41 Freedom of Information Amendment Act 1991, s 34 | Amended, in effect, by omitting reference to person who made submissions and who was notified under s 27(2). The person whom the business information concerns may apply for review where agency or Minister decides is not an exempt document under s 43. Provisions other than s 55 apply i.e. including s 61. Amended, in effect, by extending obligation to notify request for review by person seeking access to document. It is now an obligation to inform the person whose business affairs are contained in information in the document to which the agency or Minister has refused access. Inserted s 54(1D) providing for internal review of a decision made after request of kind referred to in s 27(1) and to effect that document not exempt under s 43 by virtue of that information. | Amendments mirror those made to s 59. Inserted s 54(1E) to same effect as s 54(1D). |
| Law and Justice Legislation Amendment Act 1994. ss 64 and 65 | Amended to set time limit of 30 days for lodgement of application for review by person whom business information concerns. | Amendments mirror those made to s 59. |
The Explanatory Memorandum accompanying the Freedom of Information Amendment Bill 1991 (1991 Amendment Bill) stated that its amendments to ss 27, 27A, 59 and 59A were implementing the report by the Senate Standing Committee on Legal and Constitutional Affairs entitled “Freedom of Information Act: report on the operation and administration of the Freedom of Information Legislation” (Senate Committee Report).[46] Clause 77 of the Explanatory Memorandum, which is substantively reproduced in cl 78 in relation to the amendments to s 59A, states that:
“Clause 40 amends section 59 to implement Senate Committee recommendations ... that an agency should have a duty to notify a business that the agency’s decision on disclosure of documents affecting the business is under review by the AAT.”
[46] December 1987, Australian Government Publishing Service, Canberra
The Senate Committee had noted that an agency or Minister could avoid notifying the person at all by refusing to grant access at all. It considered the Tribunal’s power to join the person as a party to a proceeding brought by the disappointed requester of the information to provide sufficient protection to the person but only if the person knew of the review. At the time, there was no mechanism to ensure that would always be the case. It considered that a duty to notify should be imposed on the agency or Minister. Subsequently, it considered whether the Tribunal should consider all of the issues at the same time or whether the person affected should be able to defer presentation of any case resisting disclosure. It dealt with both these issues in the following passage:
“8.57 Therefore, the Committee recommends that an agency have a duty to notify a business or State that the agency’s decision is under review by the Tribunal. The duty should only arise where the agency would have had an obligation to notify the business or State under reverse-FOI had the agency proposed to grant access.
8.58 The Attorney-General’s Department pointed out that there would be some reduction in costs to a business or State if it was not required to join at the outset of the proceeding before the Tribunal. Instead the business or State could defer participation and join only where the Tribunal was not satisfied after hearing the evidence of the agency that the document was exempt.
8.59 The Committee accepts that there might be value in some cases in allowing deferred participation in this way. The Committee notes, however, that the savings to third parties may in some cases be outweighed by the extra costs imposed on the other parties by a two-stage hearing. In addition, the third party might wish to be present at the first stage in order to cross-examine witnesses called by other parties.
8.60 The Committee has no objection to the Tribunal having a discretion to allow a third party to defer participation. The Committee is uncertain whether legislation is required to permit this, given the flexibility of Tribunal procedures, or, if legislation is required, whether the FOI Act or the Administrative Appeals Tribunal Act is the more appropriate Act to amend.
8.61 Therefore, the Committee recommends that the Attorney-General should initiate whatever steps are required (including legislation if necessary) to ensure that a business or State that would be affected by a successful appeal against an agency’s decision to deny access may defer its appearance before the Tribunal. The third party should be able to defer until the point where the Tribunal, after hearing the evidence of the agency, is still not satisfied that the document is exempt.”
May I regard ss 59(3) and 59A(3) as imposing an additional condition before the obligation to notify arises?
As I have said, the ARC’s submission would have me read into ss 59(3) and 59A(3) a condition that is not expressed in it. That is a condition that any obligation that the agency or Minister may have under the FOI Act to notify a person is deferred until the Tribunal has reviewed all bases, other than those under ss 41 and 43, put forward to justify the decision to refuse access to the document. To do so would, it seems to me, be inconsistent with the objects as stated both in the Explanatory Memorandum to the 1991 Amendment Bill and in the Senate Committee Report. Those objects have not been altered in this respect by the amendments effected in 1994. The express terms of those provisions are consistent with the pattern of consultation, consideration, decision-making and review established by the FOI Act. In enacting those express terms, it cannot be said that, by inadvertence, Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. It follows that I do not consider that words can be read into either ss 59(3) or 59A(3) to impose a further condition before the obligation to notify arises. Nor do I consider that the construction of those words, when considered in their context and in the light of the objects of the FOI Act, permits them to be given a construction that imposes such a condition.
What is the scope of the obligation?
It is one thing to determine when the obligation to notify arises and another to determine the scope of the obligation once it has arisen. Its scope is largely determined by the meaning of the expressions “as soon as practicable” and “taking all reasonable steps”. I will consider each in turn before considering their meaning in the context of the obligation imposed by ss 59(3) and 59A(3).
“As soon as practicable”
Mr Hyland submitted that, in light of the ordinary meaning of “practicable” and the authorities, an element of what is reasonable in all the circumstances is to be inferred as forming part of the notion of what is practicable. He relied on the ordinary meanings of the word “practicable”, a passage from Pearce and Geddes, Statutory Interpretation in Australia[47] and the cases to which the authors refer and to M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[48] NATB v Minister for Immigration and Multicultural and Indigenous Affairs[49] and Ni v Minister for Immigration and Multicultural and Indigenous Affairs.[50]
[47] 6th ed, Chatswood: LexisNexis, 2006, at page 365.
[48] (2003) 131 FCR 146; 199 ALR 290
[49] [2003] FCAFC 292; (2003) 80 ALR 799
[50] [2004] FCA 1143 at [29]
These authorities reveal that the amount of time permitted a person who must comply with an obligation to act “as soon as practicable” must be judged by reference to the circumstances pertaining to the person and to the person’s capacity to comply with the obligation as well as by reference to the obligation itself. The amount of time is not judged by reference to the desires of a third party whose own interests might be affected by whether or not the obligation is fulfilled or by the time at which it is fulfilled. I illustrate the last point by reference to the judgment of Stein JA, with whom Malcolm CJ and Wallwork J agreed, in The State of Western Australia v Rothmans of Pall Mall (Australia) Ltd.[51]Provisions in various limitations legislation required notice to be given to certain persons “as soon as practicable … after the cause of action accrues.” Stein AJ said:
“26 To determine the issue, all relevant circumstances must be taken into consideration, but these circumstances must relate to the giving of a notice of proposed action with respect to the cause of action which had accrued. I do not see that ‘political’ considerations, such as a wish not to upset of inflame continuing discussions or negotiations with the Government, are a relevant circumstance.
27 On behalf of the appellants, Mr Mitchell submitted that to be a relevant circumstance, the matter must impact on the ability of the respondent to give the notice required by the provision. In my opinion, this submission is correct. The negotiations with the Government clearly did not impact on the ability of the respondent to give the notice. By February 1998, the respondent had all of the information (including legal advice) that it needed to include in a notice. It knew of the circumstances upon which the proposed action would be based.”
[51] [2001] WASCA 25
His Honour accepted a submission that the phrase “as soon as practicable” should be read “as soon as reasonably practicable” as it is probably inherent in the expression in any event.[52] His interpretation accords with the conclusion reached by the Full Court of the Federal Court in NATB when, relying on the ordinary meaning of the word “practicable”, it said that “… at least some element of reasonableness is inherent in the notion of ‘practicable’ …”.[53] In this regard, it disagreed with a passage from the judgment of a differently constituted Full Court of the Federal Court in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs when it said:
“ In the context of s 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses: cf Uebergang [v Australian Wheat Board[54]] at 306 per Stephen and Mason JJ. …”[55]
[52] [2001] WASCA 25 at [24]
[53] [2003] FCAFC 292; (2003) 80 ALD 799 at [48] (Wilcox, Lindgren and Bennett JJ)
[54] (1980) 145 CLR 266 at 305
[55] (2003) 131 FCR 146; 199 ALR 290 at 164, 308; [66] per Goldberg, Weinberg and Kenny JJ
In NATB, the Court considered the obligation imposed on an officer by s 198(6) of the Migration Act 1958 (Migration Act) to remove as soon as practicable an unlawful non-citizen who is a detainee and who has made a valid application for a substantive visa that can be granted while in the migration zone but who does not have available any further administrative procedures under the legislation for obtaining that substantive visa. It analysed what was encompassed in the obligation. The obligation to “remove” a person “from Australia” necessarily entailed the person’s being removed from Australia and, because it cannot have been Parliament’s intention to dump the person in the sea beyond Australia’s boundaries, taken to another country.
It was impossible to foresee all of the circumstances that would need to be taken into account in deciding what was reasonably practicable, the Full Court said. It was able to make some general observations:
“52 … First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of ‘practicable’ set out at [47] above. Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.
53 This second limitation is of critical importance to the resolution of the appellants’ principal argument. In our opinion, the reference to reasonable practicability in the subsection does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete; and removal is complete, at the latest, once the person has been admitted by, and into, the receiving country. Even if it is virtually certain that he or she will be killed, tortured or persecuted in that country, whether on a Refugees Convention ground or not, that is not a practical consideration going to the ability to remove from Australia. Rather, it is a consideration about a likely course of events following removal from Australia.
54 Counsel for the appellants argued that it is unthinkable that Parliament intended to make an officer an executioner or torturer at one remove, and so Parliament must have intended the expression ‘as soon as reasonably practicable’ to do the work of relieving the officer of the obligation to send an unlawful non-citizen to death, torture or persecution.
55 We agree that Parliament cannot be supposed to have intended that persons would be removed from Australia to a country where they would be likely to suffer death, torture or persecution. But we are unable to accept that Parliament intended to avert this result by use of the expression ‘as soon as reasonably practicable’ in subs 198(6). If Parliament had intended to guard against this possibility, we would have expected it to do so expressly; for example, by adding to subs 198(6) an additional paragraph requiring the officer to be satisfied that the non-citizen would not be likely to suffer death, torture or persecution in the country to which he or she is to be removed.
56 It seems to us that Parliament sought, by other means, to guard against the situation contemplated by counsel. …”
Consistent with the Full Court’s approach, it would “… find it difficult to accept … that the removal would be regarded as practicable, even without the qualifier ‘reasonably’ where no country was willing to admit the unlawful non-citizen.”[56]
[56] [2003] FCAFC 292; 80 ALD 79 [48]
The views expressed in NATB were recognised as consistent with those in M38/2002.[57] I note in particular the passage from the judgment in M38/2002 when the Full Court said:
“… Whether the removal of a non-citizen is ‘reasonably practicable’, as distinct from merely ‘practicable’, may direct attention to a range of considerations, including factors relating to the unlawful non-citizen facing removal, and the interests of third parties who may be directly affected (such as, for example, the interests of third party states).”[58]
[57] [2003] FCAFC 292; 80 ALD 79 [60]-[67]
[58] (2003) 131 FCR 146; 199 ALR 290 at 166; 308
The examples given by the Full Court of circumstances that might be relevant show that they all pertain to the feasibility of the officer’s removing the person from Australia. They do not pertain to considerations extraneous to issues affecting that feasibility and so to issues extraneous to the officer’s carrying out the obligation imposed by s 198(6) of the Migration Act. So, for example, they do not extend to considerations of whether the person should be given an opportunity to pursue an avenue of review not provided for in the Migration Act or the illness of the non-citizen’s family. The examples given by the Full Court in M38/2002 were:
“ Doubtless, there will be other factors that, from time to time, will lead an officer to conclude that, at the time removal is contemplated, removal would not be reasonably practicable in the circumstances of the case. If, for example, the only country willing to receive an unlawful-non citizen were suffering from some severe natural disaster or were in a state of utter civil anarchy, the officer may well be entitled to conclude that his or her removal would not be reasonably practicable until the effects of the disaster were dissipated or some degree of order had been restored. … The physical condition of a person facing removal may also lead an officer to conclude that his or her removal may also lead an officer to conclude that his or her removal in that condition would not make the removal reasonably practicable …”.[59]
[59] (2003) 131 FCR 146; 199 ALR 290 at 166; 308
Emmett J also focused on factors and circumstances relevant to the obligation under ss 198(5) and (6) of the Migration Act “… as soon as reasonably practicable …”.[60] His Honour said:
“11 The first ground relied on by the applicant concerns the proper construction of the expression ‘as soon as reasonably practicable’ where that expression appears in ss 198(5) and (6). The applicant contends that some meaning must be given to the word ‘reasonably’ and that meaning is given by having regard to the interests of an unlawful non-citizen who might be the subject of removal. In the present circumstances, the applicant contends that regard must be had to the interests of the applicant’s wife and children in determining whether it is reasonably practicable for him to be removed.
12 The applicant contends that the power conferred by ss 198(5) and (6) cannot be exercised before a time that is reasonably practicable, having regard to the position of the applicant. Reliance is placed on the principle of statutory interpretation that were a statutory power affects the liberty of a person, and there is ambiguity in the construction of the statute, the statue should be construed in a manner that is favourable to the person. Though I do not doubt that proposition, the question is whether there is any ambiguity in the expression to which I have referred.
13 It is significant, in my view, that ss 198(5) and (6) are both directions to an ‘officer’. Each requires that an officer remove an unlawful non citizen in certain circumstances. I do not consider that the expression ‘as soon as reasonably practicable’ can be construed as referring to the rights or interests of an unlawful non-citizen. The expression is simply a qualification of the duty of an officer to remove an unlawful non-citizen. Removal from Australia, under those provisions, is to be effected, by force of law, not as the result of the exercise of an administrative discretion. I do not consider that it is even reasonably arguable that the expression in question must be construed in the way contended for by the applicant. …”[61]
[60] Migration Act, s 194
[61] Lewai v Minister for Immigration and Multicultural Affairs and Davidson [2001] FCA 1848
“All reasonable steps”
Mr Hyland submitted that the obligation to take all reasonable steps means that the steps that must be taken are those that it is reasonable to take in the circumstances. That means that regard must be had to issues such as the practicality of locating the person at all but the obligation goes beyond that. Regard must also be had to matters relevant to the reasonableness of informing the person at all. In some circumstances, there may be no reasonable steps that may be taken to inform the person of the application or, at least, none that can be taken until after the Tribunal has determined whether the requested document is exempt on a ground other than one mentioned in ss 41 or 43.
Mr Hyland referred me to my previous decision in Re Langer and Telstra Corporation Ltd[62] in which I considered s 24A of the FOI Act. That section permits an agency to refuse access to a document if “all reasonable steps have been taken to find the document”[63] requested and the agency or Minister is satisfied that the document is in its possession but cannot be found or does not exist. In the course of considering practical considerations concerning record keeping and retention that would need to be taken into account, I said that s 24A required the agency to “… take such steps to discover the requested documents as are appropriate in the circumstances.”[64]
[62] (2002) 68 ALD 762
[63] s 24A(a)
[64] (2002) 68 ALD 762 at 763
Mr Hyland also referred me to two other decisions that set out some general principles. The earliest of these is Royal North Shore Hospital v Henderson,[65] in which the New South Wales Court of Appeal considered whether the period within which an injured person, Mr Henderson, could bring an action for damages for personal injury could be extended. It could be extended by the Court if, within the 12 months before commencing the action and on the facts within his means of knowledge, his cause of action was defective in that it lacked a material fact of a decisive character. A fact was within his means of knowledge if he did not know that fact and, in so far as it was capable of being ascertained by him, he had taken all reasonable steps to ascertain it. Mr Henderson had been successfully treated by radiotherapy for Hodgkins disease but, in the course of that treatment, received an overdose of radiotherapy. Initially, he was aware of the damage to his skin as a result of the overdose as well as pain and stiffness in his neck and shoulders. Years later, he discovered that the overdose would lead to radicular myelopathy, which is an extremely grave disease and which may lead to quadriplegia.
[65] (1986) 7 NSWLR 283, Hope and Mahoney JJA, Samuels JA dissenting
Mahoney JA said:
“ It would, of course, have been possible for the plaintiff to take steps which would have revealed that the Hospital had not taken the necessary care. But, in considering whether a plaintiff has, within s 57(1(e)(ii), ‘taken all reasonable steps to ascertain’ a relevant fact, it is necessary to determine whether, within the provision, the steps which he could have taken but did not take were ‘reasonable steps’. The phrase ‘reasonable steps’ make have at least two significations. A particular step not taken may not fall within ‘reasonable steps’ because, in the circumstances, it was not reasonable to expect the plaintiff to take any steps at all; or it may not fall within the phrase because, though he could reasonably be expected to take some steps, the step in question could not reasonably be expected of him. The latter is, perhaps, the meaning ordinarily to be given to the phrase but it may, I think, also include the former. In the present contest, I do not think it was intended that a fact should be taken to be within the means of knowledge of a plaintiff when it would not have been reasonable to expect him to take any steps at all.
…
… it is, I think, to be noted that, in determining what is ‘reasonable’ for this purpose, the Act does not require that it be assumed that the plaintiff would have taken advice. … Whether it would have been reasonable to take advice and what steps thereafter would have reasonably been taken must be determined by reference to the particular plaintiff or, possibly, by reference to him as a reasonable person.
In my opinion, therefore, it was not until a subsequent date that the circumstances were such that it would have been reasonable for the plaintiff to take steps to ascertain that the Hospital had, in 1972, failed to take proper care. …”[66]
[66] (1986) 7 NSWLR 283 at 299
The second case to which Mr Hyland referred me for completeness is Chu v Telstra Corporation Ltd,[67] in which Finn J considered the provision in s 24A of the FOI Act. Finn J did not address the meaning of “reasonable steps” but focused on the reference to their needing to be “all” reasonable steps:
“ It is understandable, where the decision as to the taking of all reasonable steps is left to the agency or Minister concerned (subject to Tribunal review), why this more stringent requirement has been imposed. A person requesting access to a document that has been in that agency’s or Minister’s possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could be reasonably required of it to find the document in question. Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised.”[68]
[67] (2005) 147 FCR 505; 89 ALD 39
[68] (2005) 147 FCR 505; 89 ALD 39 at 514; 49
Other cases have had regard to the meaning of “reasonable steps” over the years and in a variety of contexts. In Deputy Commissioner of Taxation v Pejkovic,[69] a director of a company could defend an action by the Commissioner of Taxation (Commissioner) to recover a penalty for a company’s non-compliance with certain obligations under pay-roll legislation. One of the available defences was that the person had taken “… all reasonable steps to ensure that the directors complied …”.[70] “Reasonable” meant “… reasonable having regard to … when, and for how long, the person was a director and took part in the management of the company; and … all other relevant circumstances.”[71] Whealy J said that it is important “… to understand that the ‘reasonable steps’ contemplated by s 222AOJ(3) are steps that ensure that the directors complied with …” the obligations.[72]
[69] [2000] NSWSC 1176
[70] Income Tax Assessment Act 1936 (ITAA), s 222AOJ(3)(a)
[71] ITAA, s 222AOJ(4)
[72] [2000] NSWSC 1176 at [39]
Whealy J was careful to emphasise the link between the steps and the obligation to which they are directed when considering whether reasonable steps have been taken. That is consistent with the authorities to which I have already referred as well as with the much earlier authority of Rolfe v Willis,[73] in which the High Court said:
“ In our opinion the phrase ‘reasonable steps to prevent drunkenness’ means such steps as ought reasonably to be taken by way of precaution against the occurrence of drunkenness on the premises under any circumstances that may reasonably be anticipated, and to prevent is continuance when its existence is discovered.”[74]
May the ARC’s obligation to notify be deferred until the resolution of all aspects of the decision other than those relating to a claim for exemption under ss 41 or 43?
[73] (1916) 21 CLR 152
[74] (1916) 21 CLR 152 at 155
In view of the authorities to which I have referred, it seems to me that I must first determine the obligation and when it arises. I must then determine the scope of that obligation by reference to its terms and by reference to the person upon whom the obligation is imposed. Regard may be had to circumstances that affect the fulfilment of that obligation. Regard may not be had to circumstances that go beyond the fulfilment obligation and into areas that might be relevant to whether, in theory, the person should be placed under such an obligation at all. Regard is not to be had to the interests or desires of third parties or to whether the person under the obligation would be better served by taking another course altogether and deferring fulfilment of the obligation.
In this case, the obligation arises when a request has been made for access to a document containing the relevant information and an application has been made to the Tribunal for review of the decision. There are no express limitations upon the identity of the applicant for review so that the applicant for review in the Tribunal may be the person requesting access or it may be a person who was notified and made submissions under ss 27(1) or 27A(1). Provided the two criteria have been met, the obligation arises.
As I understand the principles that I must apply, the “reasonable steps” that must be taken “as soon as practicable” must be assessed by reference to circumstances affecting the agency’s ability to fulfil that obligation. So, for example, considerations relating to whether or not the person, to whom the information relates, can be found would be relevant. So, for example, if it is known that the person is alive but living in a suburb of an Australian city or as a hermit in Mongolia, those circumstances will be relevant in considering what amount to “reasonable steps” to notify that person. Information in the requested document may not identify the person’s current address and action taken to find the person’s current address will be relevant as will efforts taken to ascertain whether or not the person has died.
Considerations as to whether, on being informed under ss 59(3) or 59A(3), the person might become aware for the first time that an agency is holding personal or business information are not relevant. Considerations of whether the agency would prefer to defer fulfilment of the obligation for some reason, sound or otherwise, are not relevant. Those considerations do not relate to the fulfilment of the obligation but to the consequences of fulfilment or to the deferral of fulfilment. To try to take them into account is to go beyond considerations relating to the fulfilment of the obligation into questions of the circumstances in which the obligation should be imposed. The circumstances in which it arises is a matter for Parliament and it has not given the agency a discretion in that regard.
I have reached this conclusion on the basis of the plain meaning of the words of ss 59(3) and 59A(3) in their context and having regard to the purpose of the FOI Act. A relevant part of the context is that the FOI Act does not contemplate that a request for access is divisible into parts so that different decisions, leading to different review rights, may be made over a period of time. It is implicit in the provisions of ss 15 and 15A relating to the time within which a request must be decided that one decision will be made. That decision may comprise a number of different bases and each of those bases, as well as any others that are raised, will be considered during the review process. Generally, there is, though, only one decision that is reached on a request for access to a document and of which review may be sought. That is the decision to grant or refuse to grant access to a document in a accordance with a request, purporting to grant access in accordance with a request but not actually granting it, a decision to defer provision of access or to give it to a qualified person or a decision to impose or not remit a charge.[75] That is the decision that is under review and not the preliminary decisions relating to the particular grounds on which access was refused. That suggests that the FOI Act does not contemplate the division of the request into parts.
[75] ss 55(1)(a)-(b), (d), (e) and (f)
The only exception to this occurs when a request is made for more than one document and it is transferred to another agency in relation to only some of those documents but not all. Section 16 applies as if two requests had been made; one to each of the agencies.[76] It is taken to be a request made to each at the time it was received by the first agency to which it was made.[77] Each request must then be decided in the ordinary way and each decision is subject to the review provisions in the FOI Act.
[76] s 16(3A)
[77] s 16(5)
I have also considered the history of ss 59(3) and 59A(3). It confirms the conclusion that I have reached. When first enacted, s 59(3) provided that notice only had to be given to the person who had made submissions to the agency during the consultation stages before it first made its decision to refuse access to business affairs information. Section 59(3) was amended to remove those limitations and s 59A(3), when it was subsequently enacted and amended, reflected its broader approach.
Parliament made its amendments in order to implement recommendations in the Senate Committee Report. That report contained a careful analysis of the issues affecting the obligation. Thought was given to whether consideration of the “reverse FOI procedures” raised by ss 59(3) and 59A(3) should be deferred. The Senate Committee did so from the point of view of saving the third party the costs of attending the Tribunal’s proceedings at which other exemptions and grounds of refusal were considered. It did not do so from the point of view of whether an agency would have to disclose information to third parties when it considered that it had grounds, other than ss 41 or 43, for refusing access to the person requesting the document. Despite that, the possible application of a range of exemptions to a document was something very much in the Senate Committee’s mind and it thought that any issues could be dealt with procedurally by the Tribunal. It did not go so far, however, as to say that the obligation should not arise. From the passage that I have set out, it is clear that it expected that the person would be informed of the application and it would then be a matter for the Tribunal to make appropriate directions if the person applied for review or had been joined as a party.
That brings me to s 33 of the AAT Act. It is a provision that gives the Tribunal certain powers so that it can best manage its proceedings once an application has been made to it. Those powers cannot be given an extended reading so that they enable the Tribunal to dispense with compliance with an obligation imposed on an agency or Minister by another piece of legislation i.e. the FOI Act. Section 33 is a procedural provision that cannot be used to affect or dispense with substantive rights and obligations. If I were to rely on it to justify a decision that I would review the ARC’s decision on the basis of all grounds of exemption other than ss 41 or 43, I would be attempting to circumvent the obligation that Parliament has imposed on the ARC.
For the reasons I have given, I do not propose to do so and will adjourn further consideration until it has fulfilled its obligation. Whether or not that means that it will actually give notice to all of the persons who have personal or business information in the requested documents depends on what amounts to “reasonable steps” in relation to each. That remains to be seen.
For the reasons I have given, I will defer the review of the merits of the decision under review until the ARC has complied with its obligations under ss 59(3) and 59A(3) of the FOI Act. I will hold a directions hearing on a date to be fixed in order to gain an understanding of the ARC’s progress in fulfilling its obligation.
I certify that the seventy-six preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Jayne Rathjen Associate
Date of Directions Hearing 15 December 2006
Date of Decision 25 January 2007
For the Applicant self representedSolicitor for the Respondent Mr J. Hyland
Australian Government Solicitor
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