ATHIP DAVID and DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 977

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 977

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3436

GENERAL ADMINISTRATIVE DIVISION		)
Re		ATHIP DAVID

Applicant

And DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date17 December 2009

PlaceMelbourne

Decision The Tribunal dismisses the application in accordance with s 42A(4) of the Administrative Appeals Tribunal Act 1975.

....................[signed]....................

Senior Member

PRACTICE AND PROCEDURE – jurisdiction – whether the Tribunal has jurisdiction to review the decision – applicant did not seek internal review – application dismissed

Acts Interpretation Act 1901 s 22(1)

Administrative Appeals Tribunal Act 1975 s 42A(4)

Commonwealth of Australia Constitution Act s 67

Freedom of Information Act 1982 ss 26, 56(1)

REASONS FOR DECISION

17 December 2009 G. D. Friedman, Senior Member  

1.      Mr David has sought review of a decision made by the Department of Education, Employment and Workplace Relations.  The respondent contends the Tribunal does not have jurisdiction to review the decision because Mr David has not sought an internal review of the decision.  A jurisdiction hearing was held and the Tribunal gave an oral decision dismissing the application because Mr David failed to show the decision is reviewable by the Tribunal.  He requested written reasons for the decision.

2.      On 21 May 2009 Mr David made a request under the Freedom of Information Act 1982 (FOI Act) to gain access to certain documents held by the respondent.  On 25 June 2009 Mr Mark Milner, a Senior Government Lawyer with the respondent’s Legal, Investigations and Procurement Group, wrote to Mr David stating that part of the request had been transferred to another Department.  Six folios in the respondent’s possession that related to Mr David’s FOI request were released in full to him.  No other relevant documents were found to exist.  Mr Milner also informed Mr David of his right to seek an internal review of the decision.

3. On 23 July 2009 Mr David made an application for review to this Tribunal pursuant to s 56(1) of the FOI Act on the basis that a notice of a decision by the Department has not been received and therefore it may be deemed that the respondent has made a decision refusing to grant access to documents in accordance with his request. Mr David states that he has not received a notice of decision because the correspondence from Mr Milner can not be identified as a decision of a Department of the Commonwealth of Australia.

4.      Mr David provided the following reasons for his belief that he has not received a valid decision:

·The correspondence received from Mr Milner does not refer to the Executive Government of the Commonwealth of Australia and is not in accordance with s 67 of the Commonwealth of Australia Constitution Act (the Constitution);

·He is unable to establish whether Mr Milner is an officer performing his duties in accordance with approved arrangements or whether the decision has been approved by the responsible Queen’s Minister of State and the principal officer of the agency;

·The correspondence from Mr Milner does not refer to regulations, procedures or policies that the Department must comply with when making a FOI decision;

·The correspondence from Mr Milner is not in a form that can be recognised as a response of the Executive Government of the Commonwealth of Australia and does not refer to a standard of rule to which a notice from a Commonwealth Department must comply;

·The title Australian Government does not comply with the Commonwealth of Australia Constitution Act;

·Mr Milner’s decision making powers can not be authenticated; and

·The word The is missing from the Department’s title on Mr Milner’s correspondence, so that Mr David is unable to confirm whether there is only one Department of Education, Employment and Workplace Relations or there are two Departments.

5.      The respondent submitted that Mr Milner was authorised to make the decision in response to Mr David’s request in accordance with arrangements approved by the principal officer of the respondent.  The decision states that Mr Milner is authorised to make the decision.  The respondent provided the Tribunal with a copy of the instrument of authorisation.  Mr Milner also signed an affidavit dated 15 December 2009 stating that he was authorised to make the decision.  The respondent submitted that it would be unreasonable to provide proof of delegation arrangements with each decision.

6.      The respondent contended that whether the word The is used in the title of the Department is not relevant and does not affect the validity of the decision.

7. In response to the applicant’s contention that the decision was not in accordance with the prescribed rules and regulations, the respondent submitted that the decision only needed to comply with the requirements of s 26 of the FOI Act. Mr David conceded there was not a prescribed form but submitted that this was the reason he could not authenticate the letter received from the respondent. The respondent confirmed that there is no prescribed form for a decision made under the FOI Act, and the only requirements are those stated in s 26 of the FOI Act.

8.      At the jurisdiction hearing Mr David also raised the issue of whether the Department is considered a person for the purposes of the Administrative Appeals Tribunal Act 1975 (AAT Act). The respondent referred Mr David to s 22(1)(a) of the Acts Interpretation Act 1901 where person is defined to include a body politic or corporate.

CONSIDERATION

9. Section 26(1) of the FOI Act provides:

26  Reasons and other particulars of decisions to be given

(1)Where, in relation to a request, a decision is made relating to a refusal to grant access to a document in accordance with the request or deferring provision of access to a document, the decision‑maker shall cause the applicant to be given notice in writing of the decision, and the notice shall:

(a)state the findings on any material questions of fact, referring to the material on which those findings were based, and state the reasons for the decision;

(b)where the decision relates to a document of an agency, state the name and designation of the person giving the decision; and

(c)       give to the applicant appropriate information concerning:

(i)        his or her rights with respect to review of the decision;

(ii)his or her rights to make a complaint to the Ombudsman in relation to the decision; and

(iii)the procedure for the exercise of the rights referred to in subparagraphs (i) and (ii);

including (where applicable) particulars of the manner in which an application for review under section 54 may be made.

10. Section 56(1) of the FOI Act provides:

56  Application to Tribunal where decision delayed

(1)       Subject to this section, where:

(a)a request has been made to an agency or Minister in accordance with section 15; and

(b)the period of 30 days, in relation to the request, mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and

(c)notice of a decision on the request has not been received by the applicant;

the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document.

11.     The response from Mr Milner dated 25 June 2009 granted Mr David access to documents in the Department’s possession that related to Mr David’s request.

12.     Having regard to all of the material submitted, the Tribunal accepts the respondent’s submissions and finds that the response from Mr Milner is a valid decision under the FOI Act.  The absence of the word The in the Department’s title has no affect on the validity of the decision.  The Department is properly identified.  The response is provided on the Department’s letterhead.  The decision-maker cannot be expected to provide a copy of every instrument that allows the Department to exist as an entity and a copy of the delegation of authority every time a decision is made and notified to the person making the request.

13.     The Tribunal finds that Mr Milner was an authorised officer pursuant to the FOI Act at the time he made the decision, and he responded to Mr David’s request in an acceptable manner and complied with the requirements of the FOI Act.  The Tribunal also finds the Department is a person for the purposes of the AAT Act.

14.     Therefore the response by the respondent is not deemed to be a decision to refuse access to the documents requested by Mr David, and he was required to lodge an application for internal review before seeking review by this Tribunal.

15.     For these reasons the Tribunal finds that the decision is not reviewable and the Tribunal does not have jurisdiction to hear the application.

DECISION

16. The Tribunal dismisses the application in accordance with s 42A(4) of the Administrative Appeals Tribunal Act 1975.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision of
G. D. Friedman, Senior Member

Signed:         .....................................................................................
  Associate                  Grace Horzitski

Date of Hearing  17 December 2009
Date of Decision  17 December 2009
Advocate for the Applicant       Self-represented
Solicitor for the Respondent     Mr J. Hyland, Australian Government Solicitor