APACHE ENERGY PTY LTD and NATIONAL OFFSHORE PETROLEUM SAFETY AND ENVIRONMENTAL MANAGEMENT AUTHORITY LANDER & ROGERS LAWYERS JOINDER APPLICANT
[2012] AATA 296
•15 May 2012
[2012] AATA 296
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/0034
Re
APACHE ENERGY PTY LTD
APPLICANT
And
NATIONAL OFFSHORE PETROLEUM SAFETY AND ENVIRONMENTAL MANAGEMENT AUTHORITY
RESPONDENT
And
LANDER & ROGERS LAWYERS
JOINDER APPLICANT
DECISION
Tribunal Egon Fice, Senior Member
Date 15 May 2012 Place Melbourne The Tribunal sets aside the decision of the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) dated 2 December 2010 because the request made for access to documents by Lander & Rogers Lawyers (Lander & Rogers) was not a request made in accordance with s 15 of the Freedom of Information Act 1982 (Cth).
Having found that no valid request was made by Lander & Rogers to NOPSEMA on 15 September 2008, I need not determine whether Lander & Rogers should be joined as a party to this proceeding.
...[sgd Egon Fice]...........................................................
Egon Fice, Senior Member
PRACTICE AND PROCEDURE – Freedom of Information – Joinder – Jurisdiction – Valid freedom of information request – Invalid freedom of information request – Whether a request for access can be made by more than one person – Whether the expression person used in s 15(1) includes the plural persons – Contrary intention
LEGISLATION
Acts Interpretation Act 1899 (NSW) s 21
Acts Interpretation Act 1901 (Cth) ss 23, 23(b)
Administrative Appeals Tribunal Act 1975 (Cth) s 30(1A)
Companies Act 1961 (NSW) ss 184, 185
Conciliation and Arbitration Act 1904 – 1952 (Cth)
Freedom of Information Act 1982 (Cth) ss 3, 3A, 3(2), 4, 4(1), 11, 11(1), 11(2), 12, 12(2), 12(2)(a), 15, 15(1), 15(2), 15(2)(b), 15(3), 15A, 15A(2), 15A(2)(a), 15A(2)(b), 20, 22, 22(1)(c), 24, 24(5), 24(6), 26(1), 27A, 28(2), 29, 29(1), 29(1)(f)(i), 29(5), 29(5)(a), 30A, 30A(1), 38, 38(1), 38(1A), 38(2), 41, 41(1), 41(2), 43, 43(1), 43(2), 43(2)(c), 54, 54(1), 55, 58, 58(1), 58(2), 59
Freedom of Information Amendment (Reform) Act 2010 (Cth)
Income Tax Assessment Act 1936 (Cth) s 16(2)
Partnership Act 1963 (ACT) ss 9, 33
Partnership Act 1892 (NSW) ss 5, 28
Partnership Act 1997 (NT) ss 9, 32
Partnership Act 1891 (QLD) ss 8, 31
Partnership Act 1891 (SA) ss 5, 28
Partnership Act 1891 (Tas) ss 10, 33
Partnership Act 1958 (Vic) ss 9, 33
Partnership Act 1895 (WA) ss 26, 39
Racial Discrimination Act 1975 (Cth) ss 18C, 22
Taxation Administration Act 1953 (Cth) ss 3C, 3G, 3H, 8WB, 8XB, 355-25, 355-25(2), 355-30, 355-155, 355-265
CASES
Babaniaris v Lutony Fashions Proprietary Ltd (1987) 163 CLR 1
Bennett v Chief Executive Officer of the Australian Customs Services (2003) 37 AAR 8
Bennett v Chief Executive Officer, Australian Customs Service (2004) 210 ALR 220
Blue Metal Industries Limited and Another v Dilley and Another (1969) 117 CLR 651
Brennan v Comcare (1994) 50 FCR 555
CKI Transmission Finance (Australia) Pty Ltd; HEI Transmission Finance (Australia) Pty Ltd and Australian Taxation Office [2011] AATA 654
Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297
Corrs, Pavey, Whiting and Byrne v Collector of Customs (Vic) and Another (1987) 14 FCR 434
Devane v Gati & Another (1956) 95 CLR 174
Drake v Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634
Executive Council of Australian Jewry v Scully (1998) 79 FCR 537
Ganchov and Comcare (1990) 11 AAR 468
Jones v Daniel (2004) 212 ALR 588
Kennedy v Administrative Appeals Tribunal and Another (2008) 168 FCR 566
Ogden Industries Pty Ltd v Lucas [1970] AC 113
Re Ford and Department of Industry, Tourism and Resources (2005) 88 ALD 501
Re Hart and Deputy Commissioner of Taxation (2002) 36 AAR 279
Re Minister for Immigration and Multicultural Affairs and another Ex parte Miah (2001) 206 CLR 57
Re Terence Edward Morris and Others and Australian Federal Police [1995] AATA 92 (AAT No. 10120)
Saeed v Minister for Immigration and Citizenship (2010) 84 ALJR 507
Sin Poh Amalgamated (H.K.) Ltd v Attorney-General of Hong Kong [1965] 1 W.L.R. 62
Young v Wicks (1986) 79 ALR 448
SECONDARY MATERIALS
Australian Master Tax Guide (CCH, 40th ed, 2007)
Chambers 21st Century Dictionary (1999, reprinted 2004)
Fletcher K, The Law of Partnership in Australia (Thomson Lawbook Co, 9th ed, 2007)
Freedom of Information Bill 1981, Explanatory Memorandum
Macquarie Dictionary (3rd ed, 2001) The Macquarie Library Pty Ltd
Meehan M and Tulloch G, Grammar for Lawyers (Butterworths, 2001)
Peters P, The Cambridge Guide to Australian English Usage (Cambridge University Press, 1995)
The Shorter Oxford English Dictionary (3rd ed, 1983)
REASONS FOR DECISION
Egon Fice, Senior Member
BACKGROUND
By letter dated 15 September 2008, Lander & Rogers Lawyers (Lander & Rogers) requested a number of documents from the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) (formerly National Offshore Petroleum Safety Authority) pursuant to s 15 of the Freedom of Information Act 1982 (FOI Act). The documents sought referred to the operations of Apache Energy Pty Ltd (Apache) and related companies conducted on Varanus Island, which is situated some 75 kilometres off the north-west coast of Western Australia, due west of Dampier. The application for access to documents was made by the firm, rather than any particular partner of that firm.
NOPSEMA notified Lander & Rogers on 18 September 2008 that it needed to consult relevant third parties prior to making a decision about the requested documents.
On 6 April 2009 NOPSEMA notified Lander & Rogers that it intended to make interim decisions about separate tranches of documents and that it had made a decision about the first tranche of documents requested. Lander & Rogers was granted partial access to some documents and NOPSEMA exempted others. NOPSEMA also notified Lander & Rogers that a third party (Apache) had objected to the disclosure of information relating to its business affairs. NOPSEMA explained that it was required to give Apache an opportunity to seek review of its decision pursuant to ss 54 and 59 of the FOI Act before disclosing any of the documents which were subject to an objection lodged by Apache. NOPSEMA made 11 interim decisions prior to making a final consolidated decision on 10 September 2010 regarding 336 documents in its possession. In summary, NOPSEMA decided to delete three of the requested documents as they were outside the scope of the request; it granted full access to 11 of the requested documents; and it granted partial access to the remaining 322 documents requested.
After NOPSEMA issued its final consolidated decision in response to the Lander & Rogers request for documents, on 13 October 2010 Apache requested an internal review of that decision pursuant to s 54 of the FOI Act. On 2 December 2010 NOPSEMA delivered its decision following the internal review. NOPSEMA informed Apache that it had decided to increase the extent of redaction for 12 documents but otherwise affirmed its original decision in respect of the remaining documents.
Dissatisfied with NOPSEMA’s decision, Apache lodged an application with the Tribunal pursuant to s 59 of the FOI Act. Section 59 of the FOI Act deals with review of decisions made about refusal to exempt third party documents under s 43.
On 25 February 2011 Lander & Rogers lodged an application with the Tribunal seeking to be made a party to this proceeding pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Prior to this matter coming on for the hearing of Lander & Rogers’ application for joinder, I held a directions hearing on 5 May 2011 following letters received from the Australian Government Solicitor (AGS), acting on behalf of NOPSEMA and Middletons (lawyers acting for Apache) regarding the joinder application. The AGS stated it opposed the joinder of Lander & Rogers to this proceeding. Middletons also stated that it opposed Lander & Rogers’ application to be joined as a party to this proceeding. Middletons claimed that the Tribunal did not have power to join Lander & Rogers because s 30(1A) of the AAT Act only empowered the Tribunal to join a person as a party to the proceeding. Middletons claimed that Lander & Rogers was a partnership, not a person. Regardless, Middletons submitted that the Tribunal should refuse the joinder in the exercise of its discretion.
Following the directions hearing on 5 May 2011 at which the matters in dispute were crystallised, the parties and Lander & Rogers lodged outlines of submissions with the Tribunal. Apache submitted that Lander & Rogers should not be joined, essentially for the reasons that:
(a)the request made by Lander & Rogers for documents under s 15 of the FOI Act was invalid because the FOI Act envisaged that a request could only be made by a single person, not by a group of persons such as a partnership;
(b)if Lander & Rogers’ request for documents under the FOI Act was invalid, the Tribunal should set aside the decision under review and no further hearing would be required; and
(c)if the FOI request was valid, the Tribunal should nevertheless refuse to join Lander & Rogers in the exercise of its discretion.
NOPSEMA submitted that:
(a)Lander & Rogers’ request under the FOI Act made on 15 September 2008 was a valid request by those persons who constituted the partnership of Lander & Rogers at that time;
(b)if the Tribunal were to find that a valid request for documents had been lodged by Lander & Rogers, no jurisdiction question arose for determination although, if the Tribunal was of the opposite view, it nevertheless had jurisdiction to hear this application by Apache; and
(c)the Tribunal had power to join Lander & Rogers as a party to this proceeding and it did not oppose that joinder.
Lander & Rogers submitted that:
(a)its interests were affected by the decision which was the subject of Apache’s application to the Tribunal;
(b)the Tribunal should, in its discretion, order that Lander & Rogers be joined to this proceeding; and
(c)in response to the submissions made orally on behalf of Apache regarding the validity of Lander & Rogers’ FOI request, the request made by Lander & Rogers for documents was valid.
The FOI Act was amended by the Freedom of Information Amendment (Reform) Act 2010 after the request was made by Lander & Rogers for access to documents. The formal parts of that Act and some substantive parts came into effect on 31 May 2010 while those parts dealing with the appointment of an Information Commissioner came into effect on 1 November 2010. For the purposes of this application, I have referred to the FOI Act as it was prior to the recent amendment. However, where substantive amendments have been made to sections which were referred to by the parties, I have examined the effect of the amendments on the submissions made and concluded that they do not alter the findings I have made about the operation of the FOI Act.
JURISDICTION TO HEAR APPLICATION
Mr R Beech-Jones SC, counsel for NOPSEMA, submitted that the FOI request made by Lander & Rogers was clearly valid. Accordingly, no issue arose as to the Tribunal’s jurisdiction to determine the application for review which was before it. However, if I were to find otherwise, Mr Beech-Jones submitted that the Tribunal nevertheless had jurisdiction to hear and determine the application. In support of that submission, Mr Beech-Jones referred to the well-known case Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. That was a decision of the Full Court of the Federal Court of Australia. Bowen CJ said, at 317:
... As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong. ...
Smithers J, who agreed with Bowen CJ, said, at 339:
In my opinion, adopting what I have called a liberal construction of the relevant expressions in ss 25 and 26 and the Schedule to the Administrative Appeals Tribunal Act which is appropriate to the nature and object of that Act, the necessary conclusion is that those decisions are reviewable which are made by an administrator in purported or assumed pursuance of the relevant statutory provision.
Deane J dissented. He said, at 343-344:
... An administrative tribunal will ordinarily have no authority to transcend the limits of the jurisdiction conferred upon it by hearing an application aimed not at invoking the jurisdiction which it possesses, but at securing an authoritative determination of questions of fact or law anterior to the existence of that jurisdiction. The provisions of the Act do not purport to confer any such authority upon the Administrative Appeals Tribunal. If they did, a serious question would arise as to whether, to that extent, they purported to confer part of the judicial power of the Commonwealth upon an administrative body which was not a court for the purposes of Ch III of the Constitution. ...
Mr Beech-Jones submitted that the majority in the Brian Lawlor case has been followed repeatedly by the Full Court and was referred to with approval by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 220. If further authority were needed, a clear statement regarding review by this Tribunal of decisions which might be described as legally invalid can be found in the Full Court of the Federal Court of Australia decision in Kennedy v Administrative Appeals Tribunal and Another (2008) 168 FCR 566 where the Court said, at 573:
Mr Kennedy’s challenge in the Tribunal to the validity of the Commissioner’s assessments, based on the contentions that they were made in bad faith or the Commissioner’s view as to fraud and evasion was incorrect, must fail. The Tribunal has jurisdiction to hear and determine the present review under Pt IVC of the TAA because each assessment purports to have been made in exercise of powers conferred by that enactment. Whether or not the assessments were, as a matter of law, validly made does not attenuate this finding. There is a long line of authorities which supports this proposition, starting with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; 24 ALR 307. More recently, in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 at 323, the Full Federal Court observed that the judgment as to the validity of a Minister’s actions is for the courts, not for an administrative body such as a Tribunal: see also Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344.
Accordingly, if the Tribunal in this case were to make an administrative ruling that the Commissioner’s assessments were valid, this would not take effect as a binding determination of law, and the Commissioner would remain entitled to collect tax pursuant to the assessments subject to any determination by a court that those assessments were not valid. In this case, Mr Kennedy has elected to have the objection decisions referred to the Tribunal, yet he complains that the Tribunal cannot decide whether the assessments were correctly and validly made and does not have the jurisdiction which he has invoked. In these circumstances, the Court would lean against finding that the jurisdiction can be challenged: see Kim v Minister for Immigration and Citizenship (2008) 167 FCR 578 at [21]-[29] (per Tamberlin J) and [37]-[39] (per Gyles J).
I have no doubt that what Mr Beech-Jones said about this Tribunal’s jurisdiction is correct. Even if the request made by Lander & Rogers was invalid, there has nevertheless been a decision in fact made by NOPSEMA regarding access to documents. That decision was the subject of an internal review pursuant to s 54 of the FOI Act and it is therefore reviewable by the Tribunal under s 59.
Furthermore, it appears to me that the Tribunal has express power under s 58 of the FOI Act to determine whether the FOI request made by Lander & Rogers was a valid request for the purposes of the FOI Act. Section 58(1) of the FOI Act provides:
58 Powers of Tribunal
(1)Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
Section 58(1) of the FOI Act applies to proceedings under Part VI of the FOI Act which deals with review of decisions, including applications to the Tribunal. Section 58(1) expressly empowers the Tribunal to decide any matter in relation to the review of any decision made by an agency or Minister in respect of a request under the FOI Act. The word request is defined in s 4 of the FOI Act. It means an application made under s 15(1).
Insofar as it is relevant, s 15 provides:
15 Requests for access
(1)Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.
(2)The request must:
(a)be in writing; and
(b)provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and
(c)specify an address in Australia at which notices under this Act may be sent to the applicant; and
(d)be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory; and
(e)be accompanied by the fee payable under the regulations in respect of the request.
(3)Where a person:
(a)wishes to make a request to an agency; or
(b)has made to an agency a request that does not comply with this section;
it is the duty of the agency to take reasonable steps to assist the person to make the request in a manner that complies with this section.
Section 58(1) is couched in very broad terms. It bestows on the Tribunal power to review any decision made by an agency in respect of a request for access to a document and to decide any matter in relation to the request. The word relation is defined in The Shorter English Oxford Dictionary in the following way:
3. that feature or attribute of things which is involved in considering them in comparison or contrast with each other; the particular way in which one thing is thought of in connection with another; any connection, correspondence, or association, which can be conceived as naturally existing between things.
In the context in which the expression in relation to appears in s 58(1) of the FOI Act, it seems to me that provided a decision made by an agency has a natural connection between it and the request for access to a document, and which could have been or could be decided by an agency, it is one which the Tribunal has power to review. In fact, a proper reading of s 58(1), giving effect to the context and the grammatical construction of that section (in accordance with what Gibbs CJ in the High Court of Australia in Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297, at 305), reveals it envisages the Tribunal determining matters which have not in fact been determined by the agency but which could have been or could be determined by the agency as long as that matter has a logical connection with the decision made by the agency in respect of the request.
There is only one case which I have been able to locate where the Federal Court has examined the powers conferred on the Tribunal by s 58(1) of the FOI Act. In a decision of the Federal Court of Australia in Bennett v Chief Executive Officer of the Australian Customs Services (2003) 37 AAR 8, the Court was asked to examine the operation of s 58(1) and the submission made in that case that it created two separate heads of power, those being:
(a)to review any decision which has been made by an agency in respect of the request; and
(b)to decide any matter in relation to that request that, under the FOI Act, could have been decided by the agency.
Because Bennett argued that the FOI Act vested in the Tribunal power to review decisions other than those refusing to grant access to documents in accordance with the request duly made for access, Madgwick J said, at [52]:
... However, s 58(1) clearly envisages AAT review of some ancillary decisions relating to such requests.
Bennett’s case went on appeal to the Full Court of the Federal Court in Bennett v Chief Executive Officer, Australian Customs Service (2004) 210 ALR 220 which also considered the interpretation of s 58(1) of the FOI Act. However, the Full Court did not expand on what was said by Madgwick J at first instance. Its focus was on the effect that s 58(2) had on its interpretation, which is not a matter that is relevant for these purposes.
The question which arises in view of the provisions in s 58(1) of the FOI Act is whether s 15 is of such a nature that it may give rise to ancillary decisions in respect of a request made pursuant to that section. Section 15(2) sets out what appear to be mandatory requirements which must be satisfied before the agency is required to respond to a request under the FOI Act. Taking account of s 15(3), which provides that where a request does not comply with s 15, the agency must take reasonable steps to assist the person to make a request in a manner that complies with the section, the necessary inference to be drawn from that section is that upon a request being made to an agency, it must first determine whether the request has been properly made, in the sense that it requires the agency to respond to the request. If the agency determines that the request is not properly made, it must assist the person to make a compliant request.
VALIDITY OF THE FOI REQUEST
Section 11 of the FOI Act provides for legally enforceable rights to obtain access to documents. It provides:
11 Right of access
(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.
Mr J Pizer of counsel, who appeared on behalf of Apache, submitted that the request made pursuant to s 15 of the FOI Act by the firm Lander & Rogers, for access to NOPSEMA documents, was an invalid request for the purposes of the FOI Act. Mr Pizer submitted that if I were to find that the request for documents made by Lander & Rogers under the FOI Act was invalid, then I should set aside the decision under review and it would be unnecessary for me to consider the joinder application by Lander & Rogers.
The provisions in s 15 of the FOI Act have been given scant attention by the courts. In Young v Wicks (1986) 79 ALR 448, Beaumont J was required to deal with the validity of a request for documents pursuant to s 15(1) of the FOI Act as it existed at that time. Although his Honour did not set out s 15(1) in his reasons for decision, it is apparent from those reasons that s 15(1) of the FOI Act at that time was in similar terms to the present form prior to amendment in 2010. The section used the expression may make a request in writing to the agency for access to the document. The argument in that case was that the person who lodged the request for documents had not lodged a valid request under the Act because he requested access to information rather than a document. Beaumont J rejected the applicant’s submissions on the ground that s 15(1) at that time was expressed facultatively. No particular form of request was prescribed by the section. Nevertheless, Beaumont J clearly contemplated the possibility that an invalid request might be made under the FOI Act.
Deputy President S A Forgie in Re Ford and Department of Industry, Tourism and Resources (2005) 88 ALD 501 was required to determine the validity of a request made under s 15(1) of the FOI Act where the applicant had not lodged the application fee along with his request. She said, at [15]:
The first question I must answer is whether each of the prerequisites set out in s 15(1), and particularly that relating to the fee, must be met in order for the request to be valid.
Deputy President Forgie decided that the application fee must be paid or remitted before a request complied with s 15. She said, at [22]:
... Until that time, the fact that Mr Ford asked the department for documents does not mean that he has made a request for those documents under the FOI Act. He has not. ...
In my opinion, unlike the situation which confronted the Full Court in the Brian Lawlor Automotive case, the Tribunal is expressly empowered to review the question posed by Mr Pizer regarding the validity of the request made by Lander & Rogers. The validity of the request is a matter which relates to the request and it could have been or could be decided by an agency.
Whether the expression a person used in s 15(1) of the Act includes the plural, persons, is clearly a matter in relation to the request made under the FOI Act which could have been decided by the agency NOPSEMA. Any decision which the Tribunal makes in respect of that issue has the same effect as a decision of NOPSEMA or the Minister.
The validity of the request made by Lander & Rogers plainly depends on the interpretation of the expression a person as it appears in s 15(1) of the FOI Act. According to Mr Pizer, a partnership is not a person. Therefore, Lander & Rogers could not make a valid request under s 15(1) of the FOI Act.
There seemed to be no dispute about the fact that the application made by Lander & Rogers on 15 September 2008 was an application made in the name Lander & Rogers and not in the name of any particular individual belonging to that firm. It was made on Lander & Rogers’ letterhead paper and signed Lander & Rogers. An individual was named as the contact person.
A solicitor from AGS, Ms Bronwyn Mant, lodged an affidavit with the Tribunal attaching an ASIC & Business Names: Organisational Search of the name Lander & Rogers. The search disclosed that the business name Lander & Rogers was registered on 26 November 1963 and the nature of the business was described as Solicitors. The current owners of that business are named, there being 14 individuals at the time the application was made. Although all parties agreed that as a partnership, Lander & Rogers was not a legal entity, nevertheless Mr Beech-Jones submitted that correspondence on the letterhead of the firm must be taken to be correspondence on behalf of the individuals who constitute the partnership. He referred to the High Court of Australia decision in Devane v Gati & Another (1956) 95 CLR 174.
In that case, the High Court was dealing with an appeal from an order dismissing six informations laid under the Conciliation and Arbitration Act 1904 – 1952 (Cth) for breaches of the Clothing Trades Award 1950. Although the defendants named in the informations were individuals, they carried on business as Gaty Clothing Co. In the schedule attached to the Clothing Trades Award (Award) were the names of those persons upon whom the Award was binding. One of those persons was Gaty Clothing Co. The two individual partners were not expressly mentioned in the schedule. When the informations came on for hearing, objection was taken that the defendants could not be proceeded against because they were not named in the Award. Furthermore, the firm as named in the Award was not a separate legal entity. The Magistrate who heard the application upheld the objection and dismissed the informations.
Dixon CJ delivered the Court’s decision. His Honour said, at 175-176:
... It was quite competent for the Court of Conciliation and Arbitration to deal in the firm name with a partnership carrying on business in the firm name. The partners of the firm against which proceedings in the Court of Conciliation and Arbitration were so carried on would be bound by an order or award made naming the firm, that is assuming that in all other respects the court had jurisdiction to bind them by the order or award. It is, of course, true that a partnership is not a separate legal entity. But the firm name is nevertheless a description of the individuals who compose the partnership and it describes them for the purpose of the firm's business. ...
It should be noted that Dixon CJ said that the common law rule at that time for the purpose of suits and proceedings in ordinary courts of justice was that parties must be named as individual persons. The firm name did not satisfy that requirement even though, for many other purposes, it was recognised as a collective description. His Honour said that the rule did not govern the industrial proceedings of the Court of Conciliation and Arbitration, presumably for the reason that the Court of Conciliation and Arbitration or a Conciliation Commissioner could properly make an award in the name of a firm which was the name which appeared in the schedule to the award.
Mr Beech-Jones submitted that Devane’s case stood as authority for the fact that correspondence on the letterhead of a firm constitutes correspondence on behalf of the individuals who constitute the partnership. While I have doubts about whether that broad proposition can be drawn from Devane’s case, I accept that the FOI request made on Lander & Rogers’ letterhead paper must be construed as an application in the name of all of the individuals who comprised the partnership at the time the application was made. The question which then remains to be answered is whether an application can be made in the name of any number of individuals, unconstrained by the singular expression used in s 15(1) of the FOI Act.
In support of his submission that where the word person or applicant is used in the FOI Act it includes the plural persons or applicants, Mr Beech-Jones referred to s 23 of the Acts Interpretation Act 1901 (Acts Interpretation Act). Section 23 provides:
23 Rules as to gender and number
In any Act, unless the contrary intention appears:
(a)words importing a gender include every other gender; and
(b)words in the singular number include the plural and words in the plural number include the singular.
The only issue between the parties regarding the application of s 23 of the Acts Interpretation Act was whether a contrary intention appears in the FOI Act. Mr Beech-Jones submitted that a contrary intention is not easily established. He referred to the Privy Council decision in Blue Metal Industries Limited and Another v Dilley and Another (1969) 117 CLR 651.
That case was on appeal to the Privy Council from the High Court of Australia which upheld a decision of the Chief Judge in Equity in the Supreme Court of New South Wales. Two companies had made a takeover offer to the holders of the issued stock units of a third company. The offer was said to be made pursuant to the provisions of s 184 of the Companies Act 1961 (NSW). Mr Dilley held stock in the target company and his stockholding was transferred jointly to the offeror companies. Mr Dilley claimed that before a scheme involving the transfer of shares in a company to another company or corporation can be subject to the operation of s 185 of the Companies Act, that scheme or contract must arise out of a takeover scheme or offer to which
s 184 applied. Section 184 only applied to takeover schemes or takeover offers where there was a single offeror corporation and not two or more offeror corporations.The Chief Judge in Equity held that s 185 only applied to a scheme or contract involving the transfer of shares in a single company to a single transferee company or corporation and did not apply to a scheme or contract involving the transfer of shares in a company to two or more transferee companies or corporations. He also held that s 184 contemplated singularity, and that the legislature did not intend that an offeror corporation would or could, for the purposes of s 184, consist of more than one corporation. The High Court agreed with the conclusions of the Chief Judge in Equity.
The Privy Council noted that the offer made by the offeror companies was a joint offer although in the takeover statement, there were references to the offeror company. The question before the Privy Council was whether s 185 applied to a takeover made by two companies jointly or whether the provisions in that section applied only to an offer made by one company. The Privy Council noted that if the provisions applied to a takeover offer made by two companies jointly, then they would apply equally to a takeover offer made by a number of companies jointly. Therefore, the Privy Council stated that the problem needed to be approached by considering whether it was the intention of the legislature to enact that the compulsive powers given by s 185 could operate so that, against the will of certain shareholders, their shares could be transferred not to one transferee company but to a number of companies acting jointly. The Privy Council noted that the language of s 185 was consistently phrased in the singular. It used the expressions transferor company and transferee company.
The Privy Council referred to s 21 of the New South Wales Acts Interpretation Act (the NSW Acts Interpretation Act) which used words identical to those found in s 23(b) of the Acts Interpretation Act. It noted that the wording used in the NSW Acts Interpretation Act assisted the legislature to avoid cumbersome and over-elaborate wording. Lord Morris of Borth-y-Gest, who delivered the judgement, said, at 656:
... It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole. ...
I should point out that in the written submissions provided by Mr Beech-Jones, the above quote concludes with the word legislation in the penultimate line and it is followed by a full stop and closed parenthesis. Quite clearly, as can be seen from the quote above, that is not an accurate citation of what was said by the Privy Council.
The Privy Council referred to the substance and tenor of the provisions in s 185 and referred to the policy considerations which supported either side of the argument. It then said, at 658:
It would seem unlikely that the legislature would solely depend upon the provisions of the Interpretation Act if there was an intention to legislate with such important consequences as to give powers of compulsory acquisition not to a single acquiring company but to a group of companies. The Interpretation Act is a drafting convenience. It is not to be expected that it would be used so as to change the character of legislation. Acquisition of shares by two or more companies is not merely the plural of acquisition by one. It is quite a different kind of acquisition with different consequences. It would presuppose a different legislative policy.
After posing the alternative consequences which might result from acceptance of either argument, the Privy Council examined those consequences in light of the language used in the relevant sections. Following that examination, the Privy Council held there were many indications which pointed to an intention that the transferor company under s 185 was to be a single company as was the transferee company.
In my opinion, the Blue Metal Industries case is instructive in that it sets out the many factors which need to be taken into account when determining whether it is appropriate to apply the drafting convenience supplied by s 23 of the Acts Interpretation Act. It should not be used where it would change the character of the legislation in question. The consequences of doing so need to be examined in light of the language used throughout the FOI Act.
Mr Beech-Jones submitted that there is no possible foundation for a contrary intention to be found in the text or structure of the FOI Act. He submitted that excluding a collection of persons from being able to make a valid request for documents was inconsistent with the objects of the FOI Act. By way of example, Mr Beech-Jones said that if Apache’s approach were accepted, a joint application, including joint applications from spouses or family members, would be invalid.
The objects of the FOI Act are set out in s 3. It provides:
3 Object
(1)The object of this Act is 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) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(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; and
(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
(2)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 discretions 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.
Mr Beech-Jones also submitted that if the approach urged upon me by Apache were accepted, it would disentitle countless numbers of unincorporated collective bodies and groups from making valid requests under the FOI Act. According to Mr Beech-Jones, the only task required to be undertaken by an agency to which a request has been made under s 15 of the FOI Act is to identify the legal person in question. In the case of an unincorporated body, the person would be either the entirety of the membership of that body, the members of the executive committee exercising a function under the body’s rules or an individual officer. He submitted that the members of the partnership of Lander & Rogers as at 15 September 2008 can be objectively ascertained.
Mr Beech-Jones further submitted that to disallow applications by a group of persons would not facilitate the making of documents available at the lowest reasonable cost as is provided for in s 3(2) of the FOI Act. He also submitted that under s 29 of the FOI Act, where the Minister decides that a charge should be levied in respect of a request for access to a document, an applicant is required to be given notice of that charge and the opportunity to agree to pay the charge. He said that by enabling a collection of persons to apply, the obligation of payment assumed by the applicant by providing its agreement in accordance with s 29(1)(f)(i), can be shared between all applicants.
Mr Beech-Jones also submitted that neither in this Tribunal nor in the Federal Court has the ability of FOI applications to be made in the name of more than one person ever been doubted. He referred to the Tribunal case decided by Deputy President SA Forgie, Re Terence Edward Morris and Others and Australian Federal Police [1995] AATA 92 (AAT No. 10120) where she found that a business name, not being a natural person or otherwise having legal existence, could not make an FOI application or be made a respondent to proceedings to the Tribunal. Despite that, Deputy President Forgie did not express any doubt as to whether there could be multiple FOI applicants. However, in my opinion, not raising a question about multiple applicants making a request for access to documents under the FOI Act is quite a different matter to deciding the question.
Finally, Mr Beech-Jones submitted that in Executive Council of Australian Jewry v Scully (1998) 79 FCR 537, Wilcox J accepted that an unincorporated association was not a person aggrieved by an alleged unlawful conduct under the Racial Discrimination Act 1975. Therefore, the unincorporated association could not lodge a complaint with the Human Rights and Equal Opportunity Commission. However, Wilcox J found that the complaint should be treated as a complaint by the constituent members of the unincorporated association. It was sufficient, in those circumstances, to use the persons’ collective name.
Mr Pizer submitted that the question whether a valid request under the FOI Act can be made by more than one person jointly has never before been determined. He submitted this was because neither the Tribunal nor the Federal Court had ever been asked to address the question. Given that none of the parties before me directed my attention to any decision of the Federal Court or of the Tribunal dealing expressly with this point, I accept what Mr Pizer says.
Although I had not made a decision about whether Lander & Rogers should be joined as a party to this proceeding, I nevertheless allowed Mr B Reilly of counsel, who appeared on behalf Lander & Rogers, to make submissions regarding the validity question. He referred to the case Corrs, Pavey, Whiting and Byrne v Collector of Customs(Vic) and Another (1987) 14 FCR 434 in which the firm of solicitors, Corrs, Pavey, Whiting and Byrne had requested documents under the FOI Act. In that case, the Full Court of the Federal Court assumed that the firm had made a valid request under the FOI Act. That case went to the Full Court on appeal from this Tribunal but it was not a ground of appeal that the FOI request had not been validly made. Therefore, understandably, the Full Court did not deal with that matter.
Mr Pizer referred to s 23 of the Acts Interpretation Act and submitted that there were five main reasons why a contrary intention was apparent from a proper reading of the FOI Act. Those five reasons were that:
(a)under ss 38 and 41 of the FOI Act, which deal with documents to which secrecy provisions apply and documents affecting personal privacy, in some cases agencies would be required to release less information to joint applicants than they would had individual requests been made;
(b)allowing joint applications could create a situation where a request was made by a person without their knowledge or consent;
(c)allowing joint applications could generate serious administrative inconvenience and confusion for agencies;
(d)there was no basis upon which agencies could resolve disagreements where joint applicants did not agree on the course to be followed following a decision; and
(e)no person could be disadvantaged if requests for documents were limited to one individual.
Regarding the first contention referred to by Mr Pizer, he submitted that the release of less information to joint applicants than would have been the case had separate applications been made by individuals was contrary to the objects of the FOI Act in itself.
By way of example, Mr Pizer supposed that a group of individuals made an FOI request for certain documents where one of the documents within the request was a very sensitive psychiatric report about one of the members of the group. If the request was made by the individual to whom the psychiatric report applied, then under s 41(2) of the FOI Act, that individual would be entitled to have access to that document, subject of course to matters concerning health issues. No personal privacy exemption would apply. However, where a joint request is made under the FOI Act by a group of 10 persons, and one of the documents requested does not concern the personal affairs of all 10 individuals but rather personal affairs of one member of the group, problems would arise. Given that it was a joint request, even though one of the members of the group was entitled to the report, the agency could not provide it under such an application.
In support of the hypotheticals I have referred to above, Mr Pizer referred me to a decision of Senior Member B J McCabe in Re Hart and Deputy Commissioner of Taxation (2002) 36 AAR 279. That case involved the review of a decision made by the Commissioner of Taxation to withhold certain documents, and delete material from other documents requested by Mr Hart under the FOI Act. One of the bases upon which the Commissioner decided to exempt documents was s 38, which deals with secrecy provisions in an Act. In particular, the case dealt with the exception in s 38(2) which provides that the exemptions set out in that section do not apply in relation to a document insofar as it contains personal information about the person making the request. The expression personal information is defined in s 4 of the FOI Act and it means:
…information or an opinion, (including information forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Because of the exemption found in s 38(2) of the FOI Act, an individual applicant would ordinarily be permitted access to documents insofar as they contain personal information about the applicant. However, in Hart’s case, the information collected by officers of the Deputy Commissioner of Taxation in the course of their duties related to third parties, being persons other than the applicant. At that time, s 16(2) of the Income Tax Assessment Act 1936 (ITAA 1936) contained a secrecy provision preventing an officer of the Commissioner communicating or divulging to any person information acquired by the officer about the affairs of another person. Those secrecy provisions are now set out in the Taxation Administration Act 1953 in Division 355.
The FOI request was lodged in the first instance by Mr Hart on his own behalf. He subsequently provided authorities on behalf of a trust and others.
Counsel appearing on behalf of the Commissioner, in her written submissions, stated that the prohibitions contained in s 16(2) of the ITAA 1936 prevented the Commissioner from disclosing information to an individual about a third party even where the third party is related to the individual and has consented to the disclosure. The Tribunal concluded, at [70]:
It follows that while information about the applicant himself and about him in his other capacity as trustee of the Cleary and Hoare practice trust may be considered for release without offending the prohibition, information relating to other entities with whom the applicant is involved and with whom he may have a relationship (and who have consented to release) should not be considered for release. Those entities should make a separate application of their own under the Freedom of Information Act 1982.
According to Mr Pizer, the situation described above in Hart’s case, where a joint request had been made, would result in less information being provided than had individual applications been made. Quite plainly, that is correct.
Mr Pizer also referred to a third example dealing with s 12 of the FOI Act. That section deals with the non-application of Part III of the FOI Act to certain documents. Section 12(2), prior to amendment in 2010, provided:
(2) A person is not entitled to obtain access under this Part to a document or a part of a document that became a document of an agency or an official document of a Minister more than 5 years before the date of commencement of this part unless:
(a)the document or that part of the document contains information that is:
(i)personal information about that person; or
(ii)information relating to that person’s business, commercial or financial affairs; or…
Mr Pizer submitted that s 12(2) of the FOI Act in effect provided that if a document was sufficiently old (the section refers to more than 5 years before the commencement of Part III which occurred in 1983), access to it was limited to those documents which fall within the particular exceptions set out at paragraph 12(2)(a). Therefore, if a group of individuals made the FOI request and there was one document which was very old and which related to one member of the group, that would result in the particular document not being a document subject to the Act because it was not personal information about each of the individual members of the group. However, if one individual had made a request for the documents and that individual fell within the exception, then the document would have been accessible under the Act as far as that individual was concerned. Again, what Mr Pizer said about the operation of s 12 is, self-evidently, correct.
Mr Pizer’s second reason why a contrary intention is apparent from a proper reading of the FOI Act was that allowing applications by multiple persons could create a situation where the request was made by a person without their express knowledge or consent. Mr Pizer referred to requests for documents by large groups of persons, such as unincorporated associations or clubs. In those circumstances, each member of an association or club could be exposed to charges under the FOI Act. A question could then arise whether a member could remove themselves as an applicant, and what might be the consequences if they made such a request.
Under s 29 of the FOI Act, where an agency or the Minister decides that an applicant is liable to pay a charge in respect of a request to access a document, the agency or Minister must give the applicant written notice setting out certain matters about that charge. After being given notice by the agency, the applicant has a period of 30 days in which to either agree to pay the charge; contend that the charge has been wrongly assessed or should be reduced or not imposed, giving reasons for such a contention; or withdraw the request for access to the document concerned.
As Mr Pizer submitted, the answer to the question he posed regarding individuals seeking to remove themselves so as not to become liable for a charge does not appear to be a matter which was contemplated by the Parliament when it passed the FOI Act. There is a further reason why difficulties could arise in determining matters under s 29 of the FOI Act. When deciding whether to reduce or not to impose a charge, the agency must take into account whether payment of the charge or part of it would cause financial hardship to the applicant or to a person on whose behalf an application is made. Quite plainly, where the applicant is a group of individuals, particularly those who are not bound by any formal ties such as an unincorporated association or club, it may be impossible to come to a conclusion about financial hardship without simply looking at each individual case.
The third reason relied on by Apache is that allowing joint applications could generate or create serious administrative inconvenience and confusion for agencies when performing their functions under the FOI Act. Mr Pizer identified the following sections which might cause difficulty:
(a)section 15(3) – assisting an applicant to reframe the FOI request;
(b)section 24 – consulting an applicant with the view to reframing a FOI request;
(c)section 26(1) – notifying applicants of the reasons for decisions;
(d)section 28(2) – providing access to the documents requested;
(e)section 29(1) – imposing charges; and
(f)section 30A(1) – remitting fees.
I have already referred to s 15(3) of the FOI Act. The agency has a duty to take reasonable steps to assist the person making a request for access to documents to make it in a manner which complies with s 15. Mr Pizer submitted that if a request was made by an unincorporated association with numerous members, the agency may have difficulty in reframing a request. Mr Pizer acknowledged that a person could be nominated as the representative of a group and the agency could then simply deal with that individual, but it posed a question regarding dissentients. While, as a practical matter, it is likely dissentients might simply go off and make their own request, I accept what Mr Pizer says about the difficulties which would confront an agency in those circumstances. There may also be a question about whether the agency could nominate or insist that a person be the representative of the group.
Section 24 of the FOI Act provides for an agency or Minister being able to refuse requests in certain cases. Section 24(6) provides that an agency must not refuse to grant access to a document on the ground that the request for the document does not comply with s 15(2)(b). That section requires an applicant to provide sufficient information concerning the document to enable a responsible officer of the agency to identify it. The proviso contained in s 24(6) was that the agency may refuse the request where, having stated its intention to refuse access, it gives the applicant a reasonable opportunity to consult. The problems which may confront an agency in these circumstances, where there are multiple individuals comprising the applicant, are readily foreseeable. They are those which I have already identified above.
Section 26(1) deals with the provision of reasons for decisions made by an agency refusing to grant access to a document in accordance with the request or deferring provision of access to a document. The agency is required to state findings on any material questions of fact and to give the applicant appropriate information concerning the applicant’s rights regarding review of that decision and the procedures for the exercise of those rights. Where there are multiple applicants, the possibility arises that there will be differences of opinion amongst the individuals comprising the applicant. While I accept that an agency can simply nominate one member of a group to act on its behalf, or the group may itself identify and nominate an individual, that does not remove the problem should individuals comprising a group described as the applicant disagree with the decision made by the agency and/or the nominated spokesperson. The question might then become one of the legal rights of dissenting individuals. As Mr Pizer submitted, this situation does not appear to have been taken into account when drafting this section of the FOI Act.
Mr Pizer also submitted that s 28(2), which deals with giving access to the documents requested, could readily become problematic where there were multiple individuals described as the applicant. He submitted that where there might be copyright issues about documents, and a copy could not be provided to the group, access might be granted by way of inspection. However, a question might then arise regarding which individuals are entitled to inspect. Problems might arise where numerous individuals from the group seek access. Mr Pizer submitted that these questions are not ones which permit only one answer. I accept that submission.
Section 29(1) of the FOI Act deals with imposition of charges. Mr Pizer submitted that a question might arise as to who should bear the charges, particularly where some members of the applicant group are entitled to more documents than others. The question might also arise as to who has the right of appeal or to seek internal review. It might be unclear as to what would happen in those circumstances and whether all members would be required to seek review. Mr Pizer again submitted that the questions do not necessarily allow only one answer. I accept Mr Pizer’s submission on this point. Mr Pizer also referred to the financial hardship provisions set out in s 29(5) of the FOI Act to which I have already referred above.
Section 30A of the FOI Act deals with the remission of application fees. That section also contains provisions dealing with financial hardship to the applicant or a person on whose behalf the application is made. Mr Pizer submitted that the same problem arises as in s 29. In my opinion, that is plainly correct.
Mr Pizer also pointed to s 43 which deals with the exemptions regarding documents about business affairs. Section 43(2) of the FOI Act provides that the exemptions set out in s 43(1) do not have effect where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor. A similar exclusion dealing with the affairs of an organisation arises in s 43(2)(c).
The fourth situation referred to by Mr Pizer is where there is disagreement between individuals who are joint applicants. This is of course, as Mr Pizer submitted, related to the third of his reasons regarding why a contrary intention appears and it involves determining how disagreements should be resolved. Mr Pizer submitted that problems may arise because the composition of groups may change over the period of time between lodgement of an application and any disputes arising after the request has been dealt with by an agency. In fact, Mr Pizer submitted that this issue arises in this matter.
While the applicant in this case for access to documents was the firm Lander & Rogers, the question which arises is: which of those partners at the current time should be joined as parties to this proceeding? Should it only include those partners who were members of the partnership at the time the application was made?
The FOI request was made in September 2008 and the business names search attached to the affidavit of Ms Mant discloses the names of those persons conducting a business under the name Lander & Rogers as at 30 June 2011. At least two of the persons named as the partners of Lander & Rogers became partners after the date of lodgement of the FOI request. In addition, one of the named partners ceased to be a partner after the application was lodged. As Mr Pizer submitted, there is a difference between the two groups. Quite plainly, should it be necessary, I would need to determine precisely which persons are properly described as the applicant in the request made by Lander & Rogers. I can find no guidance in the FOI Act which might assist in making that decision.
Finally, Mr Pizer submitted that not only can all of the above problems be avoided by the simple act of not permitting the request to be made by multiple persons, there can be no detriment to an applicant if that were the case. Where groups wish to lodge a request for documents, it would simply require an individual from that group to make the request. He submitted that Mr Beech-Jones’ submissions regarding making documents available at the lowest reasonable cost would not be affected. The named individual who made the request could easily enter into a private costs agreement with the group to which he or she belongs. It should not be a consideration in favour of allowing group applications.
In response to Mr Beech-Jones’ reference to the Scully case, Mr Pizer submitted that the context in that case was different to that before me. The Executive Counsel of Australian Jury made a complaint regarding the contravention of s 18C of the Racial Discrimination Act. It lodged its application pursuant to s 22 of the Racial Discrimination Act which, relevantly, provides:
(1)A complaint in writing alleging that a person has done an act that is unlawful by virtue of a provision of Part II or Part IIA may be lodged with the Commission by:
(a)a person aggrieved by the act, on that person’s own behalf or on behalf of that person and another person or other persons aggrieved by the act;
(b)2 or more persons aggrieved by the act, on their own behalf or on behalf of themselves and another person or other persons aggrieved by the act;
(c)a person or persons included in a class of persons aggrieved by the act, on behalf of the persons included in that class of persons; or
(d)a trade union of which a person or persons, or persons included in a class of persons, aggrieved by the act is a member or are members, on behalf of that person, those persons or persons included in that class of persons, as the case may be. ...
By way of contrast, Mr Pizer pointed to s 15 of the FOI Act which simply makes a single sentence statement regarding a person who wishes to obtain access to a document of an agency. I accept Mr Pizer’s submission on this point. Plainly, the Racial Discrimination Act expressly provides for joint applications by multiple persons.
Mr Pizer also referred to the Blue Metal Industries case which was determined by the Privy Council. He referred me to page 656 where the Privy Council referred to the case Sin Poh Amalgamated (H.K.) Ltd v Attorney-General of Hong Kong [1965] 1 W.L.R. 62 where Lord Pearce said:
The Interpretation Ordinance was intended to avoid multiplicity of verbiage and to make the plural cover the singular except in such cases as one finds in the context to the legislation reason to suppose that the legislature, if offered such amendment to the bill, would have rejected it.
Mr Pizer submitted that the test proposed by Lord Pearce was not an unhelpful test and suggested that if the proposal had been put to the Australian Parliament, it might have said:
You know, there are so many complications associated with this concept, that it really is appropriate not to introduce such an amendment, bearing in mind how simple it is to make an FOI request with one person only.
Mr Reilly made a number of further submissions on behalf of Lander & Rogers in response to Mr Pizer. He made it clear that he did not want to be taken to be submitting only those matters submitted by Mr Beech-Jones although, as I understood Mr Reilly, he adopted Mr Beech-Jones’ submissions.
In response to Mr Pizer’s many questions about the difficulties which might arise when dealing with the disclosure of personal information, Mr Reilly submitted that the answers are simply to be found in s 27A of the FOI Act. Section 27A deals with procedures to be followed on a request being made for access to documents containing personal information. Mr Reilly submitted that where there were multiple parties to an application and one of the documents relevant to the request contained personal information about one of the parties, that could readily be dealt with by simply not permitting a release of that document.
However, in my opinion, that submission contains an obvious flaw. Where, for example, three out of four applicants for access to documents under the FOI Act are entitled to access a particular document, it would not be correct to simply deny access to all of the persons constituting the applicant in that particular application. That would result in a denial of legal rights under the FOI Act to access documents by those persons entitled to them.
Hart’s case provides a good example. In that case Mr Hart sought information about himself and about him in his capacity as the Trustee of a trust as well as other entities in which he was involved. Despite the other entities having consented to release two documents to Mr Hart, the Tribunal considered that they could not be released to him but rather the other entities needed to make separate applications under the FOI Act. If those other entities were also applicants under Mr Hart’s application, it seems to me that the outcome would not have been any different. The Tribunal could not have granted Mr Hart access to the documents relating to the other entities although the other entities were entitled to access the documents. If the Tribunal in that case had rejected the request for access to documents on that particular application, then the legal rights of the other entities to access would simply have been disregarded. There is no provision in the FOI Act, as far as I am aware, which would permit an agency or the Tribunal on an application for review to treat multiple parties in one application as if individual applications had been made by each of those parties. That is, in effect, what an agency or Tribunal would be asked to do in such circumstances. Section 27A of the FOI Act does not assist in resolving this problem.
In my opinion, Mr Pizer’s submissions regarding the interpretation of the word person as used in the FOI Act carry substantial weight. The sections of the FOI Act to which he has pointed demonstrate the insurmountable problems which could arise where the applicant is comprised of multiple persons. It seems to me that the inevitable result of such an application, where the applicants are in fact a disparate group, will be that some of those persons’ legal rights will be denied. That is plainly a contravention of s 11(1) of the FOI Act. Those rights can only be taken into account where multiple decisions are made on any one application. In some cases, as in Re Hart’s case, the decision will be that some of the persons comprising the applicant will be told that they must go and make individual applications in order for their rights to be acknowledged. In my opinion, this was never intended to be the nature of the decision which can be made by an agency under the FOI Act.
Section 54(1) of the FOI Act, which deals with internal review, quite plainly refers to a single decision being made in relation to a single request. That cannot be achieved in the way suggested in Re Hart’s case. To do so, in my opinion, is to change the entire character of the FOI Act. In some cases, it would require the decision‑maker to deny the rights of some persons to access documents and force them to make a further application on their own account in order to be accorded their legal rights. In my opinion, that cannot have been intended by the Parliament when enacting the FOI Act.
I cannot accept Mr Beech-Jones’ submission that by constraining an applicant to the singular in s 15 of the FOI Act would disentitle incorporated collective bodies and groups from making valid requests under the FOI Act. There is nothing to prevent an individual member of a group from reaching agreement with other members of that group whereby the individual makes the application on behalf of the group. Nor is there anything in the FOI Act which would prevent a person who obtained access to a document from giving that document to any other person or group or making any other use of the document.
Quite plainly, an individual could reach private agreements with the members of the group regarding charges which may be levied and any decisions which might be subsequently reached about seeking both internal review and review by this Tribunal. Although Mr Beech‑Jones submitted that this would not facilitate making documents available at the lowest reasonable cost, I cannot understand why that would be the case. For example, where an unincorporated body comprised members of varying abilities to pay charges if they were to be levied, a request could be made by a member of the group least likely to be able to meet the charges and that person might well satisfy the hardship provisions in s 29 of the FOI Act. In any event, the obligation to pay charges can be shared by members of a group by private agreement.
Mr Beech-Jones’ reference to cases where unincorporated associations could bring proceedings in the courts or at various commissions or tribunals does not assist his case. That is because, in my opinion, the FOI Act expressly grants legally enforceable rights to every person who makes a request for access to documents. Unlike the cases to which Mr Beech-Jones referred, the FOI Act grants legal rights to every individual, not simply the unincorporated body or group of individuals which makes an application. Furthermore, in some cases relied on by Mr Beech-Jones, such as Scully’s case, the Act itself expressly provides for multiple applicants. That is not the case with the FOI Act. I have also indicated that I cannot agree with submissions made by Mr Reilly and I do not find the answers in s 27A of the FOI Act as he submitted I should.
Adopting the words used by Lord Borth-y-Gest in the Blue Metal Industries case, the acquisition of documents under the FOI Act in an application by two or more persons is not merely the plural acquisition by one. It is likely that different considerations may need to be brought to bear and different consequences will result. When these considerations and consequences are carefully examined in light of the language used in the FOI Act, in my opinion, the inevitable conclusion is that the reference in the Act to a person must be a reference to the singular.
FURTHER SUBMISSIONS FOLLOWING AAT DECISION IN THE RE CKI TRANSMISSION FINANCE CASE
After the hearing in this case had concluded, and while I was drafting these reasons for my decision, on 21 September 2011 Deputy President Forgie handed down a decision in CKI Transmission Finance (Australia) Pty Ltd; HEI Transmission Finance (Australia) Pty Ltd and Australian Taxation Office [2011] AATA 654 in which she said, at [51]:
Having regard to the ordinary meaning of the right of access created by s 11(1) of the FOI Act, the need to take account of all of the words used by the legislature, the compass and limits of the right of access, the duties of an agency or Minister to whom a request is made, and the practical difficulties that arise from any other interpretation and the substance and tenor of the FOI Act as a whole, I have decided that a person has a legally enforceable right to obtain access to a document of an agency or an official document of a Minister other than an exempt document. That right is subject only to the qualifications and limitations found in the FOI Act. It is a right that is exercisable only by the person to whom it is given and that person may not exercise it in concert with others by making a single request. More than one person may choose to make identical requests but they may not make a single request for access to documents.
Following the decision made by Deputy President Forgie in the CKI case, all of the parties involved in this matter requested that they be permitted to make further submissions following that decision. I agreed to those requests and all parties made submissions at a hearing on 14 February 2012. In outline, the submissions were that: although not bound to follow Deputy President Forgie's decision in the CKI case, whether I should do so; and whether the interpretation adopted by Deputy President Forgie was, in any event, correct having regard to the objects of the FOI Act, the right of access provisions, and the practical difficulties or consequences which flow from the interpretation adopted by the Deputy President.
It should be noted that the sections of the FOI Act discussed below regarding the CKI decision, are references to the FOI Act as it was prior to the 2010 amendments except for s 3.
Duty to Follow Prior Decisions
Although Mr Pizer submitted that I am not bound to follow the decision in CKI, I should nevertheless do so in accordance with the Tribunal decision in Ganchov and Comcare (1990) 11 AAR 468.
In that case, Deputy President Todd explained that shortly prior to completing his reasons for decision, he became aware of the decision of the Tribunal in another case which was presided over by the President. Deputy President Todd realised that his views did not accord with those of the President and therefore he explained why he believed he should, nevertheless, follow the decision of the President. He said, at 469-470:
... It is, however, I believe time to say that unless decisions of the President are followed by all within the Tribunal, and unless decisions of presidential members (which of course includes deputy presidents) clearly dealing with a point in issue are followed within the Tribunal, the Tribunal could gain a reputation for inconsistency if not disarray. In critical cases it is certainly in my view open to a member to note his or her disagreement with a precedent decision, but it is not desirable for members to adhere to views that appeal to them when the point has been decided otherwise at a higher level. That is not to say, however, that members are not entitled to express their own view for the record, as I have done here. For the rest, as the whole question of following previous decisions is related solely to questions of law, a disappointed party has a right of appeal if the view of such a would-be dissentient from the precedent case is seen as compelling.
There was no dispute between the parties that the doctrine of stare decisis does not apply to this Tribunal. If there were any doubt about that at all, I would refer to the High Court of Australia decision in Babaniaris v Lutony Fashions Proprietary Ltd (1987) 163 CLR 1 where Mason J said, at 12:
… Although the doctrine of stare decisis is often said to apply to curial decisions, this statement in reality reflects the broad proposition that the doctrine applies to decisions of tribunals which exercise judicial power in the sense already discussed. The consequence is that the Board may on the ground of stare decisis regard itself as bound to follow its earlier decision on a question of law and, correspondingly, a higher court, e.g. the Full Court of the Supreme Court, may decline on the same ground to overrule a decision of the Board.
It is plain that this Tribunal exercises administrative power. It does not exercise judicial power. Nevertheless, Mr Pizer submitted it was important for tribunals to maintain consistency in decision-making. He referred to the well-known decision in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In that case, Brennan J said, at 639:
Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. …
The problem with Mr Pizer's submission is that Drake's case was concerned with a discretionary decision and in particular the application by this Tribunal of the Minister’s policy regarding the deportation of an immigrant or alien. Brennan J pointed out that there are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion was calculated to achieve and, by doing so, assist the Minister and others to see more clearly the desirability of exercising the power in one way or another.
Of course the principal issue in this case has nothing whatsoever to do with making a discretionary decision. It is about statutory construction. Therefore, with respect to Mr Pizer, while I accept that consistency in administrative decision-making is a desirable goal, particularly where the exercise of discretion may be involved, the considerations which I must address are those which are commonly addressed by the courts when applying the doctrine of stare decisis in cases involving statutory interpretation.
In Babaniaris’s case, Mason J explained the benefits of applying the doctrine of stare decisis in that it promoted certainty of the law and protected the integrity of acts and transactions which have taken place in the faith of the law as it had been previously declared. However, his Honour also said this about cases involving statutory construction, at 13:
There are, however, countervailing considerations which have special force in cases of statutory construction. The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute. If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute: Blair v. Curran (38); Platz v. Osborne (39); Concrete Constructions Pty. Ltd. v. Barnes (40); Lancashire & Yorkshire Railway Co. v. Mayor, &c., of Borough of Bury (41). It is no part of a court's function to perpetuate error and to insist on an interpretation which, it is convinced, does not give effect to the legislative intention: Bourne v. Keane (42). And, as Lord Sumner observed in Pate v. Pate (43), "nor is it in any case sound to misconstrue a statute for fear that in particular instances some hardship may result". The injustice or inconvenience which will result from displacement of a long-standing decision is certainly a very important factor to be considered, but there is no support in principle or authority for the proposition that the court should persist with a manifestly incorrect interpretation on the ground that it will cause injustice or inconvenience. There is, after all, an obvious injustice in departing from the legislative intention and in most cases a proposed departure from antecedent authority involves competing detriments.
The Full Court of the Federal Court of Australia more recently in Jones v Daniel (2004) 212 ALR 588 confirmed that the approach in Australia was relatively settled. Moore J, with whom Hill and Allsop JJ agreed, said, at 594:
… There is a comparatively settled approach in this court that on questions of statutory construction, a Full Court should follow a construction adopted by an earlier Full Court unless it considers the earlier construction is clearly wrong: …
The Full Court of the Federal Court in Brennan v Comcare (1994) 50 FCR 555 cautioned against construing the terms of the judgements as if they were words of a statute. Gummow J, at 572, referred to the Privy Council decision in Ogden Industries Pty Ltd v Lucas [1970] AC 113 where their Lordships said, at 127:
"It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself."
Although the words used by Deputy President Todd in the Ganchov case were that a decision of a presidential member should be followed where that presidential member dealt with a point in issue, Mr N O'Bryan SC, who appeared on behalf of Lander & Rogers on 14 February 2012, submitted that the courts, when dealing with the stare decisis principle, only did so with respect to the ratio decidendi and not to any obiter dicta in a decision. While I have no doubt at all that what Mr O'Bryan said is correct, a fair reading of Deputy President Todd's decision in Ganchov discloses that his reference to a point in issue is simply descriptive of the expression ratio decidendi.
Mr Beech-Jones submitted that the decision in CKI is not binding on the Tribunal in this proceeding. That is undoubtedly correct and as I have already indicated above, there was no dispute about that. What Mr Beech-Jones and Mr O'Bryan appeared to be arguing was that I should not, in any event, follow Deputy President Forgie's decision in CKI. The reasons for not doing so can be summarised as follows:
(a)the decision was made without submissions being made by the parties;
(b)the decision in CKI does not depend upon its conclusion that there cannot be multiple applicants under the FOI Act; and
(c)the decision in CKI is, in any event, wrong.
In his oral submissions, Mr Beech-Jones pointed out that the parties in the CKI case did not argue it at all. In fact, the ATO, which was the respondent, was not so much as apprised of the point being considered by the Deputy President. Those submissions are plainly correct as Deputy President Forgie made it clear in her reasons for decision that although she asked for submissions from the applicant (which comprised two corporations) to support the single application made to the Tribunal seeking review of the ATO decision, the written submission which she received simply stated it was appropriate that only one application fee be paid because on internal review by the ATO, one decision was made in respect of both applications. Deputy President Forgie stated she did not ask the ATO for any submissions in the matter as the preliminary issue related solely to matters concerning the two corporate applicants.
Mr Pizer submitted that the effect of s 38(1A) was that a document may be exempt if the FOI request were made by one person but not exempt if the request were made by another. That would be so if the secrecy provision prohibited disclosure of the document or information contained in the document to one person but did not prohibit such disclosure to the other person. Mr Pizer then referred to Schedule 3 of the FOI Act which sets out the secrecy provisions contained in various enactments referred to in s 38(1). He referred in particular to s 355-25 of Schedule 1 to the Taxation Administration Act 1953 (the Administration Act) which provides:
355-25Offence—disclosure of protected information by taxation officers
(1)An entity commits an offence if:
(a)the entity is or was a *taxation officer; and
(b)the entity:
(i)makes a record of information; or
(ii)discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and
(c)the information is *protected information; and
(d)the information was acquired by the first-mentioned entity as a taxation officer.
Penalty: Imprisonment for 2 years.
(2)An entity (the covered entity) is covered by this subsection in relation to *protected information that relates to another entity (the primary entity) if:
(a)the covered entity is the primary entity’s *registered tax agent or BAS agent; or
(b)the covered entity is a *legal practitioner representing the primary entity in relation to the primary entity’s *tax affairs; or
(c)the primary entity is an *incapacitated entity and the covered entity is a *representative of the incapacitated entity; or
(e)the covered entity is the primary entity’s *legal personal representative; or
(f)the covered entity is the primary entity’s guardian where the primary entity is a minor or suffers from mental incapacity; or
(g)the covered entity and the primary entity are members of the same *consolidated group or *MEC group; or
(h)the covered entity is a representative of the primary entity who has been nominated by the primary entity in the *approved form to act on that entity’s behalf with respect to protected information.
The expression protected information is defined in s 355-30 in the following way:
355-30 Meaning of protected information and taxation officer
(1) Protected information means information that:
(a) was disclosed or obtained under or for the purposes of a law that was a *taxation law (other than the Tax Agent Services Act 2009) when the information was disclosed or obtained; and
(b) relates to the affairs of an entity; and
(c) identifies, or is reasonably capable of being used to identify, the entity.
Note:Tax file numbers do not constitute protected information because they are not, by themselves, reasonably capable of being used to identify an entity. For offences relating to tax file numbers, see Subdivision BA of Division 2 of Part III.
As Mr Pizer correctly submitted, a partnership tax return would contain protected information for the purposes of s 355-30 of Schedule 1 to the Administration Act. The information would have been obtained for the purposes of a taxation law; it relates to the affairs of the entity (the partnership); and the information would identify the partnership. However, as Mr Pizer submitted, that would not prevent a taxation officer from disclosing the information to another entity (assuming a person who is a partner of the entity in question can be described properly as another entity) where that other entity falls within the definition of covered entity in s 355-25(2).
A solicitor employed by the AGS drafted further submissions on behalf of NOPSEMA. NOPSEMA disagreed with the submissions made by Mr Pizer on behalf of Apache. That is despite the fact that AGS agreed that a taxation officer could release a taxpayer’s information to persons such as a tax agent; a BAS agent; a legal practitioner; a representative of an incapacitated entity; a legal personal representative; a guardian; members of the same consolidated group; or a representative of the primary entity who has been nominated to act on the primary entity's behalf with respect to the protected information, being persons who normally conduct business on behalf of their taxpayer client. AGS submitted that the availability of the exemptions contained in s 355-25(2) does not mean that a partner can, in every situation, obtain information under an FOI request for partnership tax information. AGS provided an example. I have no doubt that what was said by AGS is correct. However, AGS then concluded that where the partnership had not appointed a single person to be the nominated representative and so covered by the exemptions, the only way which the partnership would be able to obtain partnership information pursuant to an FOI request would be for an FOI request to be made by all partners. With respect, I cannot agree.
Given the provisions in the Partnership Acts in all States of Australia as well as the Territories, there seems to be no reason why any partner cannot act as a representative by nominating themselves as the covered entity in the approved form to act on the partnership's behalf with respect to the protected information. In fact, and with due respect to Mr Beech-Jones, there would be no reason at all for a partner in a partnership to have any recourse to the FOI Act if he or she required the tax returns lodged by the partnership to be provided to him or her. The partnership is required by law to provide that information to a partner on request.
Mr O'Bryan submitted that the further submissions made by Mr Pizer on behalf of Apache (regarding the partnership tax returns) was irrelevant to resolving the fundamental issue in this matter and in any event was of no assistance to the Tribunal. That was because, in the first instance, even if Apache’s further submissions were correct, if the partnership had not retained or appointed a person or entity within one of the classes described as a covered entity, there was no person or entity which could make a valid request for the partnership tax return under the FOI Act. I have already dealt with that above and, respectfully, disagree.
Mr O'Bryan's second submission was that if the covered entity disclosed in its request under the FOI Act that it acts as an agent for the partnership, then, according to Apache, the request is an impermissible joint request on behalf of disclosed principals. Although Mr O'Bryan submitted that it was that type of request which Mr Pizer said was impermissible and invalid, it is, in my opinion, a misunderstanding of Mr Pizer's submission. Again, I refer to the fact that every partner acts as agent for the partnership in the course of conducting the partnership business. That fact need not be disclosed on an FOI request nor does it alter the validity of that request. It remains the request of a single person. What the partner does with the documents after being granted access is irrelevant. Mr O'Bryan also submitted that if the covered entity did not disclose it was acting for the partnership, the potential application of other exemptions would fall for consideration in circumstances necessarily different from the circumstances which would arise if the partnership itself were entitled to make a joint request in its own name. With respect to Mr O'Bryan, in the context of the law of partnership, that makes no sense.
Mr O'Bryan also pointed out that the legislation specified in Schedule 3 of the FOI Act referred to by Mr Pizer is legislation which was contained in the Act subsequent to its amendment in 2010. Section 355-25 of Schedule 1 of the Administration Act was not in force at the time Lander & Rogers made its application under the FOI Act. In fact Schedule 3 of the FOI Act, which sets out the secrecy provisions referred to in s 355-5 in Schedule 1 of the Administration Act, also refers to subsections 3C(2), 3G(6) and (9) and 3H(5) and (8), paragraph 8WB(1)(c) and subsection 8XB(1). Mr O'Bryan submitted that rather than identifying covered entities to whom information might be disclosed; those sections appear to have been provided for exceptions based on the purpose of disclosure. With respect to Mr O'Bryan, they do not. Section 3C deals generally with secrecy in much the same way as does s 355- 25. Section 3G deals with information provided to the Project Wickenby Taskforce. Section 3H deals with information provided to prescribed taskforces. Section 8WB deals with unauthorised recording of tax file numbers and s 8XB deals with making records of taxation information and the production of taxation information in certain circumstances.
Mr O'Bryan also submitted that Apache could not answer the question whether, as a matter of statutory construction, a request made by multiple parties was capable of being made under the FOI Act by reference to other legislation which was not in force when the relevant sections of the FOI Act were enacted. While I accept that submission is correct, I have nevertheless examined the amendments made to the FOI Act in 2010 in order to satisfy myself that the FOI Act in its current form nevertheless requires a valid application to be made by a single person. For the purposes of the hypothetical posed by Mr Beech-Jones, it matters not which secrecy provisions are referred to by Mr Pizer. The outcome would not be any different.
Finally, Mr O'Bryan submitted that Apache has not explained how other items set out in the current Schedule 3 of the FOI Act would affect particular circumstances. Section 355-155 makes it an offence for other people to disclose protected information. It does not apply to a taxation officer and no offence is committed if information is disclosed to the entity's agent in relation to the information. It could not therefore apply to a partner making an application for partnership income tax information. Section 355-265 makes it an offence to make a record of information or disclose information to another entity other than the entity to whom the information relates or that entity's agent in relation to the information. It could not apply, therefore, to a partner making an application for partnership income tax information.
If the documents requested contained personal information other than personal information of the applicant, then of course the procedure set out in s 27A of the FOI Act would apply. Restricting an application under the FOI Act to an individual would not, as Mr Beech-Jones submitted, be contrary to the overall objectives of the Act.
In his oral submissions in reply delivered on the second hearing day, Mr O'Bryan said that if an individual partner of a partnership signed an application for access to documents on behalf of the partnership, and it is accepted that such an application is valid, then it must be conceded that a partnership application is valid. I do not agree for the reasons I have already given above.
Deputy President Forgie, after identifying the boundaries of access imposed by the FOI Act, referred to a number of sections in the Act which disclosed practical difficulties if an application for access to documents were made by multiple persons. As I understood her reasons for decision, Deputy President Forgie was simply highlighting the different consequences which would flow were applications for access to documents under the FOI Act made by multiple parties in the one application. In some instances, she pointed out that there would be no practical difference. However, in significant areas, she pointed out that there would be practical difficulties.
I have already referred to some of those consequences above. Nevertheless, in light of the fact that the parties made further submissions regarding those consequences, I have addressed those submissions.
Section 41 and 43 Exemptions
Prior to their repeal in 2010, s 41 of the FOI Act dealt with documents affecting personal privacy and s 43 was concerned with documents relating to business affairs. Deputy President Forgie said in her reasons for decision that if a request were made by more than one person to a document, there would be very real practical differences in the application of the exemptions under these sections of the FOI Act. That is because, in effect, the agency or Minister must make two decisions. If the document requested contains personal information and/or business affairs information about one but not the other applicant, one decision will have to be made having regard to ss 41(2) and 43(2) and another decision without regard to those provisions. That, according to Deputy President Forgie alters the essential characteristic of the task of processing that request. Rather than a single decision being made on the request, the agency or Minister would be required to make multiple decisions on the request.
Mr O'Bryan submitted that the reasoning of Deputy President Forgie was erroneous. He said the difficulties were illusory because:
(a)it is not mandatory that the agency treat a request made by multiple persons separately where there are in fact joint applicants;
(b)the agency could point out the problems with processing the application in its current form including the fact that there may be a reduction in the information which can be provided; amend the application or refuse to process the application relying on s 24 of the FOI Act indicating it would substantially and unreasonably divert resources of the agency; and
(c)the practical difficulties outlined by Deputy President Forgie in the CKI case would equally arise where an application was made by an individual on behalf of another individual, a situation contemplated by the FOI Act.
Mr Beech-Jones submitted that the approach adopted by Deputy President Forgie presupposes that the exemptions in ss 41(2) and 43(2) can only be applied to one individual. He submitted that the exemption provisions can be applied to a couple in respect of personal information about both parties and to so-called collective businesses such as partnerships. He submitted that if documents relate to the business affairs or the private affairs of one applicant but not to the other, then the exemption can be upheld and an individual application can be made if necessary. He also submitted that where there is a single FOI request by two or more individuals, and information about one of them might be exempt under ss 41 or 43 at the FOI Act, then, failing to obtain an individual's consent, it is open to the agency to exempt the document in the context of that particular request.
With respect to Mr O'Bryan and Mr Beech-Jones, I cannot accept their submissions in respect of the operation of ss 41 and 43 of the FOI Act. The suggestion that where, due to the presence of personal information regarding one of a number of persons making a single application, the request should simply be refused by applying the exemption, not only runs contrary to the objects of the FOI Act, but it denies the legally enforceable right granted to each person under s 11. Furthermore, I can find no basis whatsoever in the FOI Act for taking such a course of action.
Mr O'Bryan's submission that difficulties may be resolved by resort to s 24 of the FOI Act is simply misguided. A request for access to documents can only be refused under s 24 where the request would substantially and unreasonably divert resources of the agency from its other operations or, in the case of a Minister, it would substantially and unreasonably interfere with the performance of the Minister's functions. An example might be where two persons make the single request for access to 5 documents held by an agency. If, amongst the documents requested, there is personal information about one of those persons or information about their business affairs, it would be incorrect to resort to s 24 of the FOI Act to refuse access. Refusal in those circumstances would also infringe s 24(5) of the Act. That section applies only where all of the documents requested are exempt documents.
Mr O'Bryan also submitted that the practical difficulties stated by Deputy President Forgie would equally arise where an application is made by a person acting as agent for another person or body. I cannot agree. While I accept Mr O'Bryan's submission that the FOI Act contemplates a person making an application for access to documents as agent for a principal, and that in those circumstances s 29(5) dealing with remission of charges on the grounds of financial hardship would look to the financial position of the principal rather than the agent, that simply appears to be consistent with the law of agency where a principal is liable for the costs incurred by his or her agent. If the document sought by the agent contains personal information about the principal, disclosure of that information to the agent, particularly where there is a written agreement between the principal and the agent, would not enliven the exemption provided in s 41(1) of the FOI Act. Such disclosure would not be unreasonable.
Section 22 Exemption
Section 22 of the FOI Act provides for the grant of access to documents which have exempt information or irrelevant material deleted or redacted. As Deputy President Forgie said in the CKI case, the Minister or agency is required to have regard to the wishes of the person making a request for access in deciding whether to provide documents which have been redacted (s 22(1)(c)). Quite obviously, where there are multiple persons comprising the applicant for access to documents, there may be many different opinions about whether redacted documents and the extent of redaction is acceptable.
Mr O'Bryan submitted that the difficulty which was said to arise from the operation of s 22 was more illusory than real. He submitted that if there was a dispute between joint parties to a request for access to documents and whether they wished to receive an edited copy of the document, the issue would be resolved by providing a copy, subject to payment of any relevant charges. He said that where one of a number of joint parties to a request makes it known that they wished to have access to a document, the agency or Minister could not reasonably conclude that the applicant would not wish to have access to such a copy.
Mr Beech-Jones submitted that concerns about s 22 of the FOI Act was not reason to find that an application be restricted to a single person. He submitted that in any case, s 20 of the FOI Act provided for disparate views to be accommodated by the provision of documents in different forms. While that submission is undoubtedly correct, the different forms envisaged by s 20 make no mention of providing documents on request with different degrees of redaction or deletion. The forms of access referred to in s 20 are: a reasonable opportunity to inspect the document; provision of copies of the document; an article or thing from which sounds of visual images can be reproduced; making arrangements for persons to hear or view those sounds or visual images; and where documents by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or the words are contained in the form of shorthand writing or in codified form, provision of a written transcript of the words recorded or contained in the document. It follows I cannot accept the submissions of either Mr Beach-Jones or Mr O'Bryan on this point.
Section 15A – Request for Access to Personnel Records
A person wishing to access their personnel record under the FOI Act must first establish whether the agency by which they are or were employed has procedures for access to employee documents. A person must not apply under s 15 of the FOI Act to access to their records unless they have first made a request for access in accordance with the procedures established by an agency and they are not satisfied with the outcome of the request or they have not been notified of the outcome within 30 days after the request was made.
Deputy President Forgie said in CKI that if a request were made by more than one person and one person amongst that group of applicants had not made a request for access to the agency in accordance with established procedures, it would simply not be possible to apply s 15A(2). No provision is made in the FOI Act for dividing a request to an agency into two parts. Deputy President Forgie also alluded to the fact that even if division were allowed, it was not clear to which request the application fee would be attributed.
In his oral submissions Mr O'Bryan conceded that there were certain types of requests which could not, practically speaking, be made by multiple parties in the one application. He submitted that a request for personnel records was such a case, particularly as it necessitates that the applicant is an individual. Therefore, Mr O'Bryan submitted that a request for personnel records would probably never be the subject of a multi-party application.
With respect to Mr O'Bryan, that is beside the point. If it were correct that multiple persons may lodge a single request for access to documents, then that principle should apply uniformly throughout all of the provisions in the FOI Act unless the contrary is expressly stated in a particular section. That is not the case as far as s 15A is concerned.
Mr O'Bryan also submitted that because s 15A was an exception, that proved the rule that multiple parties could make a single application. To overcome any difficulty which might occur as a consequence of multiple parties making an application, Mr O'Bryan submitted that the agency would be perfectly entitled to refuse the request and no particular difficulty arose. However, as I have already indicated above, where one of a number of parties to an application is entitled to have access to a requested document, refusing such an application effectively denies the legal right of that person to access his or her personnel documents.
Mr Beech-Jones submitted that the processes implemented by agencies permitting access to personnel records outside the FOI Act are designed only to apply in the case where an individual is requesting their own employment record. He said this view is reinforced by the wording of s 15A.
Mr Beech-Jones referred to the words used in s 15A and in particular the reference to his or her personnel records in s 15A(2)(a) and (b). He pointed out that s 15A(2)(a) refers to a request which may be made by an employee. He also noted that
s 15A(2)(b) refers to a person who is or was an employee of the agency and wished to obtain access to his or her personnel records. That person must not apply under s 15 seeking access to such records unless the person has made a request in accordance with procedures established by the agency. Mr Beech-Jones submitted that an FOI request lodged by multiple parties for personnel records would not fall within the terms of s 15A because it will not be an application made by an employee for his or her personnel records.In his oral submissions, Mr Beech-Jones submitted that if two persons made an application under s 15 of the FOI Act seeking personnel records in respect of one of those persons, there would be no problem in applying s 15. He said in those circumstances, s 15A simply wouldn't operate to prevent the application because of the precondition in s 15A(2)(b). While Mr Beech-Jones accepted that an application by two people for the personnel records of one of those persons would run into problems with exemptions regarding personal information, he was nevertheless of the view that s 15A did not negate the validity of the joint application under s 15.
With respect to Mr Beech-Jones, that does not appear to answer the difficulty identified by Deputy President Forgie in the CKI case. She contended that it would simply be impossible to apply s 15A(2). That is because in a multi-person request made under s 15 of the FOI Act, where one person had not made a request for access to the agency in accordance with the established procedures, s 15A would not permit the one person to apply for access under s 15(1) whereas the other person or persons could do so. No provision is made in the FOI Act for dividing a request into two requests so that the request by the person who had not followed the established procedures could be refused and the others could be processed and a decision reached. I do not agree with Mr Beech-Jones that where an application for personnel records is made by two persons under s 15 of the FOI Act, s 15A would not operate to prevent the application. It seems to me that it is intended to operate but, as Deputy President Forgie said, it would be impossible to apply s 15A(2).
Section 29 – Charges
Section 29 of the FOI Act provides that where an agency or Minister decides that an applicant is liable to pay a charge, the Minister must give to the applicant written notice setting out the fact that the applicant is liable to pay a charge; setting out the preliminary assessment of the amount of the charge and the basis on which the assessment is made; that the applicant may contend that the charge has been wrongly assessed or should be reduced or not imposed; the amount of a deposit that the applicant will be required to pay if the charge is imposed; and that the applicant has 30 days within which to notify the agency or Minister in writing whether the applicant agrees to pay the charge, contends the charges been wrongly assessed etcetera, or that the applicant withdraws the request for access to the documents concerned. In considering whether to reduce or not impose the charge, the agency or Minister must take into account whether the payment of the charge or part of it would cause financial hardship to the applicant or to a person on whose behalf the application was made.
Deputy President Forgie said that a number of practical difficulties might arise if a request was made by more than one person or on behalf of more than one person. Even if the total charge could be divided amongst more than one person making a request, she pointed out that if one person's share of the charge were to cause that person financial hardship, there was no obvious means under the FOI Act to deal with such a situation. Deputy President Forgie also noted that if the agency or Minister were required to divide a charge amongst a group of persons making a request, and make a determination whether to reduce or not impose part of the charge for one and not others, that would have the effect of dividing the request for access into more than one request. The FOI Act makes no provision for that.
Mr O'Bryan submitted it could be readily admitted there could be practical difficulties arising in some cases from the application of s 29 of the FOI Act. He said that even if the regulations dealing with charges posed practical problems, that could not be relevant to the interpretation of the Act under which the regulations were made. While that may well be true, where the consequences are such that they cannot be logically intended by a particular interpretation of the Act, then this could suggest that the interpretation is incorrect.
Mr Beech-Jones submitted that there was no foundation for the statement made by Deputy President Forgie that it might be difficult for an agency in determining a hardship request. He suggested there was nothing inherently difficult in assessing the resources of a group of individuals and nothing to suggest it had caused any difficulty in the past.
As to the first point made by Mr Beech-Jones, I cannot agree that determining the financial resources of a group of persons would not create difficulty. This would be particularly so where the group of individuals is large and diverse. Whether this has caused any difficulty in the past is not to the point. Although Deputy President Forgie in her decision referred to practical difficulties which may arise, as I understand her reasoning, it is that the consequences of permitting multiple parties to make the one application for access to documents, in respect of the charges which may need to be borne or the provision of those documents, are not provided for in the FOI Act. In fact, the FOI Act appears to envisage, by using the words to pay a charge ... in respect of a request for access to a document, that there be a single charge levied in respect of each request. Deputy President Forgie also pointed out that prior to the abolition of application fees, it would not have been possible to divide a request for access to documents into more than one request. She found that this was a deliberate recognition of the fact that a charge is made in respect of the request even if it is made up of several components. In my view, that must be correct.
It might be thought that a similar problem regarding the determination of hardship and the waiver of charges would arise where a person acts as agent for another person for the purpose of obtaining access to documents under the FOI Act. However, I do not see that as causing any difficulty whatsoever. Where an application is made by an agent, it appears to me that in accordance with the laws governing the relationship between a principal and agent, the principal is liable for the costs of the agent. This seems to have been contemplated by s 29(5)(a) of the FOI Act. Therefore, the Minister or agency would look to the financial circumstances of the principal in order to determine whether charges should be waived.
In addition to the reasons I have expressed above, I should also say that I agree entirely with the reasons provided by Deputy President Forgie in the Re CKI and HEI case. Although she has approached the same problem in a different manner, she has reached the same conclusion through the careful application of statutory interpretation principles. I find that the request made by Lander & Rogers on 15 September 2008 for access to a number of documents held by NOPSEMA was not a request made in accordance with s 15 of the FOI Act.
CONSEQUENCES OF FINDING
Having found that Lander & Rogers’ request for access to documents was not a request made in accordance with s 15 of the FOI Act, I need to examine the consequences which flow from my finding. While this application was brought by Apache on the ground that a valid application had not been made, I am mindful of the fact that it is not the role of this Tribunal to determine the law. That was clearly explained by the Full Court of the Federal Court in Kennedy’s case. However, as I understand the Full Court’s decision, it does not prevent this Tribunal from making an administrative ruling about the validity of Lander & Rogers’ request for access to documents. In fact, as is evident from s 15(3) of the FOI Act, the original decision-maker is required to determine whether a request made pursuant to s 15 complies with that section of the Act. It is also the duty of the original decision-maker to take reasonable steps to assist the person making the application to make it in a manner which complies with s 15.
Furthermore, s 58(1) of the FOI Act empowers this Tribunal to review decisions made by an agency including any matter in relation to the request for access to documents which could have been or could be decided by an agency or Minister. In accordance with the power granted under s 58 of the FOI Act, I find that the request made by Lander & Rogers for access to documents held by NOPSEMA did not comply with s 15 of the FOI Act and a fresh request should be made by an individual or a legal person. The request, in its current form, was not a valid request and NOPSEMA should not have dealt with it as if it was a request made in accordance with the FOI Act.
JOINDER APPLICATION
Having found that the request for access to documents by Lander & Rogers was not a valid request made in accordance with s 15 of the FOI Act, no purpose can be served by determining Lander & Rogers’ request to be joined as a party to this proceeding.
CONCLUSION
Contrary to the submissions made on behalf of NOPSEMA and Lander & Rogers, I have found that where the expression a person is used in the FOI Act, that expression is confined to the singular. That is because, despite the drafting convenience provided by s 23 of the Acts Interpretation Act, I have found that the FOI Act discloses a contrary intention.
I have come to this conclusion after considering s 15 in its setting in the FOI Act and I have considered the substance and tenor of the legislation as a whole. A single application by multiple persons or individuals may result in significantly different outcomes for each of those persons or individuals. In my opinion, that is not the intention envisaged by the legislation when taken as a whole. It envisages a decision being made on each application. That is entirely consistent with the objects of the Act. The FOI Act does not contemplate different decisions resulting in different outcomes in respect of different persons or individuals which comprise the one applicant for a request for access to documents under the FOI Act. If it were read in that way, the character of the legislation would be changed.
It follows from my reasons that the final consolidated decision made by NOPSEMA on 10 September 2010 was not the correct decision because the request made for access to the documents by Lander & Rogers was not a request made in accordance with s 15 of the FOI Act. NOPSEMA’s decision on internal review, dated 2 December 2012, made under s 54 of the FOI Act was therefore not a decision made in relation to a request to it. I would therefore set aside that decision and in substitution determine that a valid request for access to documents has not been made by Lander & Rogers pursuant to s 15 of the FOI Act.
Having found that no request pursuant to s 15 of the FOI Act was made by Lander & Rogers to NOPSEMA on 15 September 2008, I need not determine whether Lander & Rogers should be joined as a party to this proceeding.
I certify that the preceding one hundred and eighty four (184) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member.
...[sgd].......................................................................
Associate
Dated 15 May 2012
Dates of hearing 22 August 2011, 14 February 2012 Counsel for the Applicant Mr J Pizer Solicitor for the Applicant Middletons Lawyers Counsel for the Respondent Mr R Beech-Jones SC Solicitor for the Respondent Australian Government Solicitor Counsel for the Joinder Applicant Mr N O’Bryan SC
Mr B Reilly
Solicitor for the Joinder Applicant Lander & Rogers Lawyers
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