Apple and Pear Australian Limited and Department of Agriculture Fisheries and Forestry

[2004] AATA 1368

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1368

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2004/284

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		APPLE AND PEAR AUSTRALIA LIMITED

Applicant

And   DEPARTMENT OF AGRICULTURE FISHERIES AND FORESTRY

Respondent

REASONS FOR DECISION

Tribunal   Mr J.W. Constance, Senior Member  

Date of Decision  25 November 2004

Date of Reasons for Decision          7 December 2004

PlaceCanberra

Decision The Tribunal has jurisdiction to review the decision of the respondent refusing to grant access to the documents requested by the applicant in paragraph “(a)” of the letter of 12 August 2004 from the applicant’s solicitors to the respondent.

..............................................

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – Freedom of Information Act – deemed decision to refuse access – later decision granting access to some documents and saying other documents do not exist – whether either deemed decision or later decision reviewable by Tribunal – Tribunal has jurisdiction

Freedom of Information Act 1982 (Cth) - s 55, s 56

Alikhani and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 147

Re Smedley and Department of Business, The Arts, Sport and Tourism (1996) 41 ALD 779

REASONS FOR DECISION

7 December 2004 Mr J.W. Constance, Senior Member

FACTS

1.      By letter of 12 August 2004 Apple and Pear Australia Limited requested the Department to provide access to various documents under the provisions of the Freedom of Information Act 1982 (Cth).

2.      Although the documents to which access was requested were set out in two sub-paragraphs, (a) and (b), the documents were related.

3.      The Department did not respond to the request within the statutory period which expired on 21 September 2004.

4.      On 27 September 2004 the Company lodged an application with the Tribunal seeking a review of the Department’s decision to refuse to grant access to the documents.  This application relied upon the provisions of section 56 (1) of the Act which deems a failure to give notice of a decision to be a decision refusing access which then enables the applicant to apply to the Tribunal for review under section 55.

5.      Clearly, the Tribunal had jurisdiction to hear the application at the time it was lodged and the Department has not contended otherwise.

6.      On 29 September 2004 the Department wrote to the Company in part as follows:

“I have enclosed a schedule identifying 14 documents that relate to your request of 12 August 2004. All documents identified in the attached Schedule relate to part (b) of your request. There were no documents relating to part (a) of your request.

I have decided to grant access to the 14 identified documents in their entirety.”[1]

[1] Ex. A1.

7.      In fact, there was some material deleted from one of the documents.  However, for the purposes of this application the parties agreed to treat the letter as giving unqualified access to all documents referred to in sub-paragraph (b) of the request.

THE ISSUE FOR DETERMINATION

8.      It is necessary to decide whether, on the application before it, the Tribunal has jurisdiction to review the deemed decision to refuse access to the sub-paragraph (a) documents.  If it does have jurisdiction it must decide whether this was the correct decision and whether the Department should conduct further searches for the documents.  Section 55(5A) of the Act gives the Tribunal the power to require further searches when appropriate.

9.      The Department contends that it has now given access to all requested documents which it says are in existence.  In the Department’s view, the Company must apply for an internal review of the decision of 29 September 2004 before the Tribunal has jurisdiction to review the decision that there are no sub-paragraph (a) documents in respect to which access should be given.

THE LAW

10.     Section 56 of the Act deems a failure to make a decision on an application for access to documents within the time limited to be a decision to refuse access made by the principal officer or the Minister.  This enables an application for review to be made directly to the Tribunal under section 55 without the necessity of seeking internal review under section 54.

11.     Section 55 deals with applications to the Tribunal and provides, inter alia:

(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:

(a) a decision refusing to grant access to a document in accordance with a request; or

(aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or

………

12.     Section 56(5) provides, inter alia:

“Where, after an application has been made to the Tribunal by virtue of this section but before the Tribunal has finally dealt with the application, a decision is given, other than a decision:

(a) to grant, without deferment, access to the document in accordance with the request;

……

the Tribunal may treat the proceedings as extending to a review of that decision in accordance with this Part.”

13.     The Department argued that :

(a) the jurisdiction of the Tribunal does not extend to enable a review of the decision to grant access to the documents;

(b) jurisdiction is limited to review the deemed decision to refuse access;

(c) the only order which can be made in relation to the latter decision is an order to provide access to documents to which access has now been provided;

(d) the company must apply for an internal review before it can seek a review (under section 55(1)(aa)) of the decision not to grant access to all the documents requested.

14.     Counsel for the Department referred me to the decision of Alikhani and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 147. In that matter there was a decision refusing access to a document, but no decision was made on the applicant’s request for an internal review of that decision. After the application was made, but before it was heard, a decision was made by the Department permitting access to the document. This was a unilateral decision without reference to the Tribunal. The Tribunal held that sub-section 56(5), set out above, was not applicable to the facts before it, but in any event the sub-section would not be applicable as the later decision was to “grant, without deferment, access to the documents in accordance with the request”. The Tribunal concluded that it had jurisdiction to review the original decision to refuse access but that it did not have jurisdiction to review the subsequent decision to grant access.

15.     In my view the Alikhani decision does not assist the Department.  In Alikhani a decision refusing access was made, it was not a deemed decision under section 56 as is the case here.  As section 56 applies in this case the applicant is enabled to make an application to the Tribunal under section 55.  The applicable provision of section 55 is sub-section (1)(a), not sub-section (1)(aa).  In fact, the decision in Alikhani supports the view that the Tribunal in this matter does have jurisdiction to review the original decision ie. the deemed refusal to grant access.

16.     When, as in this case, a decision is made refusing access to requested documents, the Tribunal has jurisdiction to review that decision by a combination of section 56(1) section 56(1)(b).  The Tribunal may enquire whether any documents to which access should have been given do exist and whether there is any ground on which the agency might have denied access.  In Re Smedley and Department of Business, the Arts, Sport and Tourism (1996) 41 ALD 779 President Professor Curtis considered the scheme of the Australian Capital Territory legislation, which has the same scheme as the Commonwealth Act under consideration. At page 783 the President said:

“The scheme of the Act is therefore a coherent one.  If an agency simply fails to respond to a request, the applicant is entitled to apply to the tribunal for review as if access had been denied.   The task for the tribunal in such a case is to inquire whether any ground exists on which the agency might have denied access, and the onus is on the agency to establish the existence of such a ground.  If, on the other hand, the agency takes a positive step which has the consequence of denying access in accordance with the request, the applicant, after first going through the internal review process, may apply to the tribunal for review of the decision.  In that case, the task of the tribunal is the same as before; to inquire whether any ground exists on which the applicant might properly have been denied access.  Again, the onus is on the agency to establish the correctness of its decision.  If the reason for the decision as that the document did not exists or was lost or was otherwise not in the possession of the agency, the agency must produce such evidence as will satisfy the tribunal of the relevant state of fact.”

17.     By failing to make a decision within time and then making a decision to grant access to some, but not all, of the documents requested, the Department has given the Company three options.  One option is to proceed with its application to review the deemed decision refusing access including the deemed decision to refuse access to those documents described in sub-paragraph (a) of the request.  

18.     Alternatively, the Tribunal has jurisdiction to treat the present proceedings as extending to a review of the decision of 29 September 2004 under section 56(5).  This also includes jurisdiction to review the decision that the documents requested in part (a) do not exist, as I have set out in paragraph 16 above.

19.     The third option available to the Company is to seek an internal review of the decision of 29 September 2004 and then to apply to the Tribunal for review if necessary.

DECISION

20.     The Tribunal has jurisdiction to review the decision of the Department refusing to grant access to the documents as requested by the Company in the sub-paragraph designated “(a)” in the letter of 12 August 2004 from the Company’s solicitors to the Department.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         .....................................................................................
  Associate (Chelsey Bell)

Date/s of Hearing   18 November 2004
Date of Decision   25 November 2004
Solicitor for the Applicant            Corrs Chambers Westgarth
Solicitor for the Respondent       Minter Ellison