Australian Conservation Foundation Incorporated and Minister for the Environment (Freedom of Information) - [2022] AATA 307

Australian Conservation Foundation Incorporated and Minister for the Environment (Freedom of Information) [2022] AATA 307 (23 February 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2021/1556
Re:Australian Conservation Foundation Incorporated
APPLICANT

AndMinister for the Environment
RESPONDENT

DECISION
Tribunal:Justice T Thawley, Deputy President
Date:23 February 2022
Place:Sydney

The application for the Tribunal to make a recommendation under s 66(1) of the Freedom of Information Act 1982 (Cth) is refused.
..........................[sgd]...........................................
Justice T Thawley, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION — costs — statutory interpretation — Freedom of Information Act 1982 (Cth) s 66(1)(a) — whether power to recommend to Minister that applicant’s costs of the proceedings be paid by the Commonwealth is enlivened — where application brought under s 57(1)(b) — meaning of ‘a decision of the Information Commissioner on an IC review’ — power not enlivened
LEGISLATION
Freedom of Information Act 1982 (Cth) ss 15, 34, 47B, 47C, 53A, 54G, 54K, 54L, 54W, 55A, 55B, 55C, 55H, 55K, 56, 57A, 60AA, 66
CASES
ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18
Bull v Attorney-General (NSW) (1913) 17 CLR 370; [1913] HCA 60
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
Jones v Director of Public Prosecutions [1962] AC 635
Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
REASONS FOR DECISION
Deputy President T Thawley
23 February 2022
INTRODUCTION

The Australian Conservation Foundation Incorporated sought review by the Information Commissioner of a decision of the Minister for the Environment to refuse access to various documents sought under the Freedom of Information Act 1982 (Cth) (the Act). A delegate of the Information Commissioner made a decision not to undertake an ‘Information Commissioner review’ (IC review) as it was thought desirable that the Minister’s decision be reviewed by the Administrative Appeals Tribunal. The applicant applied to the Tribunal for review of the Minister’s decision. The dispute was ultimately resolved by consent, after the Minister agreed to release each of the documents to which access had initially been denied, with deletions for irrelevant material.
The applicant now seeks a recommendation under s 66(1) of the Act that the applicant’s costs in relation to the proceeding be paid by the Commonwealth. Section 66 of the Act provides:
66 Tribunal may make recommendation that costs be available in certain circumstances
(1) Where:
(a) a person applies, under section 57A, to the Tribunal for review of a decision of the Information Commissioner on an IC review; and
(b) the person is successful, or substantially successful, in his or her application for review;
the Tribunal may, in its discretion, recommend to the responsible Minister that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.
(2) Without limiting the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1), the Tribunal shall have regard to:
(a) the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant;
(b) the question whether the decision of the Tribunal on review will be of benefit to the general public;
(c) the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal; and
(d) the reasonableness of the decision reviewed by the Tribunal.
(3) The responsible Minister may, pursuant to a recommendation of the Tribunal under subsection (1), authorize the payment of costs to an applicant.
Section s 57A(1) states:
57A Tribunal reviewable decisions—which decisions are reviewable?
(1) An application may be made to the Tribunal for review of the following decisions:
(a) a decision of the Information Commissioner under section 55K on an IC review;
(b) if the Information Commissioner makes a decision under paragraph 54W(b) (matters inappropriate for IC review)—the IC reviewable decision in relation to which the Information Commissioner makes the decision.
The Minister opposes the Tribunal making a recommendation under s 66(1) for two reasons:
(a)First, the Minister submits that s 66(1)(a) of the Act has no relevant operation. The power in s 66(1) is not enlivened by the applicant’s review application.
(b)Secondly, even if the discretionary power in s 66(1)(a) is enlivened, the Minister submits that nothing raised by the applicant identifies an appropriate basis for the Tribunal to exercise its discretion to make a costs recommendation.
For the reasons that follow, s 66(1)(a) is not satisfied with the result that the discretionary power to make a recommendation as to costs is not enlivened and the applicant’s request must be refused. In any event, I would have declined the making of a costs recommendation having regard to the matters in s 66(2).
BACKGROUND
On 31 July 2020, the applicant made a request under s 15 of the Act for emails falling within the following description:
Between 29 June and 13 July 2020, emails between the PMO and Minister Ley’s office regarding the 15 fast-tracked major projects announced on the Department’s website: >
On 31 August 2020, the Minister extended the period for responding to enable consultation with third parties, namely, the Department of the Prime Minister and Cabinet.
On 29 September 2020, a decision was made on behalf of the Minister that two documents fell within the scope of the request: one four-page email chain; and a one-page email with a three-page attachment. Access to those documents was refused on the basis that the documents were exempt under s 34 (Cabinet documents), and conditionally exempt under s 47C (deliberative process) (the Decision). That Decision was an ’access refusal decision’ within the meaning of s 53A of the Act, and an ‘IC reviewable decision’ within the meaning of s 54K.
On 14 October 2020, the applicant sought a review of the Decision by the Information Commissioner under s 54L of the Act. On 20 October 2020, a delegate of the Information Commissioner wrote to the Minister and indicated that the Information Commissioner was intending not to undertake a review for the reasons contemplated by s 54W(b) of the Act. That section provides:

54W Decision to review—discretion not to review
The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if:
(a) the Information Commissioner is satisfied of any of the following:
(i) the IC review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;
(ii) the IC review applicant has failed to cooperate in progressing the IC review application, or the IC review, without reasonable excuse;
(iii) the Information Commissioner cannot contact the IC review applicant after making reasonable attempts; or
(b) the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal; or
(c)the IC review applicant fails to comply with a direction of the Information Commissioner.
Note 1: The Information Commissioner may make a decision under this section to review only part of an IC reviewable decision (see section 54U).
Note 2:If the Information Commissioner makes a decision under paragraph (b), an application for review may be made to the Tribunal for review of the IC reviewable decision (see section 57A).
Note 3:Division 1 of Part VIII sets out the circumstances in which a vexatious applicant declaration may be made in relation to a person. A declaration may permit the Information Commissioner to refuse to consider an IC review application if the person makes the IC review application under this section without the written permission of the Information Commissioner.
On 9 February 2021, a delegate of the Information Commissioner made a decision pursuant to s 54W(b) of the Act not to undertake an IC review. The delegate of the Information Commissioner outlined the following reasons for her decision:
The subject matter under review, in respect to applicability of the Cabinet documents exemption to National Cabinet documents, is complex. The Information Commissioner has not previously considered this issue, and there is currently no other available precedent on this issue. It will likely require consideration of factual matters such as the nature and make-up of the National Cabinet, including relevant evidence, and may also require a formal hearing, rather than the matter being reviewed on the papers.
The applicability of the Cabinet documents exemption in respect to National Cabinet documents is contentious, given it is already the subject of applications to the AAT.
On 9 March 2021, the applicant applied to the Tribunal under s 57A(1)(b) of the Act for review of the Decision.
On 23 June 2021, the Minister notified the New South Wales Department of Premier and Cabinet (NSW DPC) as an affected third party under s 60AA of the Act.
The first directions hearing was held on 25 June 2021. At the directions hearing, White J made orders setting a timetable for the filing of evidence and listed the matter for directions on 12 August 2021. The Tribunal noted, among other things, that the parties agreed that aspects of the proceeding (concerning National Cabinet) overlapped with a separate proceeding involving Senator Patrick, which was reserved before White J.
On 14 July 2021, the Minister sought to enter into consent orders to vary the timetable to file submissions and evidence on the basis that NSW DPC had not yet responded to the s 60AA notice and consultation. On 22 July 2021, the Minister was granted an extension to file evidence, with the consent of the applicant.
On 5 August 2021 a decision was given in Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719.
On 6 August 2021, after the Tribunal’s decision in Patrick, the Minister orally informed the Tribunal and the applicant during the course of a directions hearing that the Minister would be prepared to release part of one document, and sought a further two-week extension to file evidence. Justice White granted a three-day extension for the filing of evidence and, on 12 August 2021, directions were made to this effect.
On 16 August 2021, the Minister wrote to the Tribunal and indicated that she would ‘release most of the content of the documents’ and, advised that, as a result, it was not necessary for the Minister to file any affidavit evidence in chief (and any remaining exemptions could be dealt with by written submissions alone). On 20 August 2021, the Tribunal made orders by consent granting the applicant access in part to the documents under review. On 27 August 2021, the applicant wrote to the Tribunal and indicated that, given the above-mentioned release, it would not file any evidence and would, if necessary, only file written submissions.
On 20 September 2021, the Minister informed the Tribunal and the applicant that the Minister would release further parts of the documents in full, and only maintained an exemption claim over one part of one email. The Minister filed submissions relying upon ss 47B and 47C of the Act in support of its claims for refusing access to the remaining material. The applicant filed its submissions on 4 October 2021.
On 14 October 2021, the Minister informed the applicant that she had decided to release the remaining material sought by the applicant, and communicated this to the Tribunal on 15 October 2021. The only information not disclosed was irrelevant information.
The end result is that there is no issue left to be resolved apart from this application for a recommendation under s 66(1) of the Act.
IS SECTION 66(1) ENGAGED?
The first question is whether s 66(1) applies at all. Section 66(1) requires two matters to exist before the discretion to recommend costs is enlivened:
(a)first, a person must have applied ’under section 57A, to the Tribunal for review of a decision of the Information Commissioner on an IC review’: s 66(1)(a); and
(b)secondly, the person must be ‘successful, or substantially successful, in his or her application for review’: s 66(1)(b).
Summary of parties’ contentions
The applicant contends that the Information Commissioner’s decision not to undertake an IC review was ‘a decision of the Information Commissioner on an IC review’ within the meaning of s 66(1)(a). The applicant contends it was successful in its application for review, satisfying s 66(1)(b).
The Minister contends that s 66(1)(a) is not satisfied because the applicant has not applied ‘for review of a decision of the Information Commissioner on an IC review’. In particular: (a) the decision being reviewed is the Minister’s decision, not the Information Commissioner’s decision under s 54W(b); and (b) there was no IC review or any decision on such a review.
Consideration
Section 57A, which is referred to in s 66(1), permits applications to be made to the Tribunal for review of:
(a)a decision of the Information Commissioner under section 55K on an IC review: s 57(1)(a); and
(b)if the Information Commissioner makes a decision under paragraph 54W(b) (matters inappropriate for IC review), the IC reviewable decision in relation to which the Information Commissioner makes the decision: s 57(1)(b).
An IC review is defined in s 54G as ‘a review of an IC reviewable decision undertaken by the Information Commissioner under this Part’. As the note to s 54G states, ‘IC review’ is ‘short for Information Commissioner review’. Division 6 of Part VII of the Act, entitled ‘Procedure in IC Review’, contains provisions dealing with how an IC review is to be conducted. It includes provisions addressing the parties to the review (s 55A), applications for hearing (s 55B), representation at the hearing of a proceeding (s 55C) and referral of questions of law to this Court (s 55H).
A decision under s 55K is a decision ‘on an IC review’. Section 55K is located in ‘Division 7—Decision on IC review’ of Part VII. Section 55K provides:
55K Decision on IC review—decision of Information Commissioner
(1) After undertaking an IC review, the Information Commissioner must make a decision in writing:
(a) affirming the IC reviewable decision; or
(b) varying the IC reviewable decision; or
(c) setting aside the IC reviewable decision and making a decision in substitution for that decision.
(2) For the purposes of implementing a decision on an IC review, the Information Commissioner may perform the functions, and exercise the powers, of the person who made the IC reviewable decision.
(3) A decision of the Information Commissioner on an IC review has the same effect as a decision of the agency or Minister who made the IC reviewable decision.
A person who applies to the Tribunal under s 57A(1)(a) applies for review of the Information Commissioner’s s 55K decision on an IC review. By contrast, a decision under s 54W(b) is a decision not to undertake an IC review or not to continue to undertake an IC review. A decision under s 54W(b) not to undertake an IC review is the antithesis of a decision of the Information Commissioner on an IC review under s 55K.
When a person makes an application under s 57A(1)(b), the Tribunal reviews the IC reviewable decision. It does not review the decision of the Information Commissioner under s 54W not to undertake an IC review. Such a decision cannot be reviewed by the Tribunal.
In the present case, there was no IC review and there was no decision by the Information Commissioner under s 55K on that review. There was a decision under s 54W(b) not to undertake an IC review.
The applicant’s application to the Tribunal is one to review the Minister’s decision (the IC reviewable decision) not the Information Commissioner’s decision under s 54W(b).
The applicant contends that, as a ‘beneficial’ provision, s 66(1)(a) should be construed ‘so as to give the fullest relief which the fair meaning of its language will allow’, referring to: Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384; [1913] HCA 60. The applicant submitted that s 66(1)(a) should not be construed in a manner that would unnecessarily restrict the words of the provision. The applicant submitted that the words ‘under section 57A’ should not be read restrictively to mean ‘under section 57A(1)(a)’.
The difficulty with this submission is that the principle to which the applicant refers only has potential operation if there is a constructional choice available, namely only if more than one meaning is reasonably open: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [30] per French CJ, Crennan, Kiefel and Keane JJ. As Isaacs J observed in Bull at 384 (citations omitted):
In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially. This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.
The applicant submits that ss 54W and 57A ‘operate together so that an applicant may bring a review of the IC reviewable decision before the Tribunal as a direct consequence of the decision of the Information Commissioner on an IC review’ such that an application for review under s 57A(1)(b) is ‘for a review of a decision of the Information Commissioner on an IC review’.
The applicant submits that the words ‘on an IC review’ cannot be viewed in isolation and that the composite phrase ‘a decision of the Information Commissioner on an IC review’ in context must include ‘where the Information Commissioner made a decision on an IC review application under s 54W, such decision being within the relevant Part dealing with IC reviews in the FOI Act’.
The applicant’s construction does not give sufficient weight to the words ‘of the Information Commissioner on an IC review’, which describes the ‘decision’ to which the provision relates, and leaves those words with no work to do. Such a construction is to be avoided: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71]; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [97].
The applicant’s construction would erode the distinction between a decision under s 55K on an IC review and a decision under s 54W not to undertake an IC review. The phrase ‘decision of the Information Commissioner on an IC review’ also appears in s 55K(3) of the Act, which states that a ‘[a] decision of the Information Commissioner on an IC review has the same effect as a decision of the agency or Minister who made the IC reviewable decision’. Section 56 of the Act provides that a ‘review party may appeal to the Federal Court of Australia, on a question of law, from a decision of the Information Commissioner on an IC review’. These provisions cannot sensibly be construed as applying to a decision under s 54W(b) not to conduct an IC review. The phrase ‘a decision of the Information Commissioner on an IC review’ is a central concept in the legislative scheme and should not be construed as having different meanings where used in different provisions of the same Act.

The applicant submits that ‘it would be contrary to the objects of the Act to deprive an applicant [of] the opportunity to recover costs as a result of a procedural decision of the Information Commissioner taken to ensure the efficiency and proper administration of the Act’. The applicant submits that there was ‘no intention to limit the Tribunal’s power to recommend costs where the underlying decision of the agency was under review’.
This submission assumes the purpose of the statutory regime with respect to costs rather than analysing whether the statute, properly construed, reveals such a purpose. In Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [26] the High Court cautioned against making an a priori assumption about a statute’s purpose and construing the statute to coincide with the assumption. The correct process is to deduce the purpose from what the legislation says, not from an assumption about the desired or desirable operation of the provisions.
In Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9, the High Court observed at [65] that the task of statutory construction is to ‘expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is neither speculation nor repair’. Whilst there are certainly arguments which favour the applicant’s construction, and policy considerations which might be thought to favour a power to recommend costs in circumstances such as the present, the applicant’s construction attaches to the statutory provision ‘a meaning which the words of [the] provision cannot reasonably bear’: Jones v Director of Public Prosecutions [1962] AC 635 at 662 per Lord Reid. Section 66(1)(a) requires that the application be for review of a decision of the Information Commissioner on an IC review. Section 66 cannot be construed as being engaged where there is no such decision. If there is a deficiency, it is one for legislative repair.
The applicant’s application to the Tribunal on 9 March 2021 was made pursuant to s 57A(1)(b). An application under s 57A(1)(b) is not an application for review of a ‘decision of the Information Commissioner on an IC review’ and therefore does not fall within the scope of s 66(1).
For these reasons, the Tribunal does not have power to make a recommendation to the Minister that the applicant’s costs in relation to the proceeding in the Tribunal be paid by the Commonwealth.
WOULD A RECOMMENDATION HAVE OTHERWISE BEEN APPROPRIATE?
Even if the Tribunal did have power under s 66(1) to recommend that the costs of the applicant in relation to the proceedings be paid by the Commonwealth, having considered the matters in s 66(2) and the submissions of the parties, it would have declined to have exercised that discretion.
The applicant submitted that its request for documents under the Act was of some benefit to the general public. That submission is accepted.
The applicant submitted that the Minister was responsible for significant delays and the incurring of unnecessary expense. The applicant also relied upon the fact that the Minister has now provided the documents sought (with redaction of irrelevant material) fifteen months after the initial request.
I do not accept that the Minister was responsible for delays in a way which should result in a costs recommendation in the applicant’s favour. A number of the delays were due to circumstances largely outside the Minister’s control. I conclude that the Minister conducted the proceedings appropriately, making concessions which led to the parties not needing to incur the expense of filing evidence, and ultimately leading to the resolution of the substance of the dispute.
The applicant submitted that the Minister’s decision was not reasonable and that it was wrong. In this regard, the applicant relied on the fact that the Minister abandoned reliance on s 34 of the FOI Act after the decision was made to release some of the content of the documents.
The Minister submitted that, in circumstances where the matter was resolved between the parties before the Tribunal conducted a substantive review and the Tribunal has not formed a view as to the merits of the decision, the Tribunal should not conduct a ‘mini trial’ of the merits of the decision on a costs application.
In reply, the applicant submitted that it did not contend for a ‘mini trial’ as to the merits of the decision; rather, the applicant relied on the Minister’s conduct in response to the FOI request and throughout the proceedings, and that this did not require an assessment of the merits of the decision.
As mentioned, the Minister conducted the proceedings appropriately. I do not infer from the fact that reliance on s 34 was later abandoned that the decision-maker did not genuinely consider that it did apply. Even if the Minister’s decision was attended by error, about which I express no view, it was not so obviously erroneous as to warrant a recommendation as to costs.
Section 66(1) should not be read as containing any presumption in favour of a costs recommendation where an application for review has been successful. Each case will turn on its own particular facts. I am not satisfied that the facts here would have warranted a recommendation that the costs of the applicant in relation to the proceeding be paid by the Commonwealth even if the Tribunal otherwise had power to make the recommendation.
CONCLUSION
The applicant’s request for the Tribunal to make a recommendation under s 66(1) is refused.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Justice T Thawley

……………[sgd]………………………

Associate

Dated: 23 February 2022

Solicitors for the Applicant:	Environmental Justice Australia
Solicitors for the Respondent:	Australian Government Solicitor