Bienstein and Attorney-General (Commonwealth)
[2004] AATA 896
•26 August 2004
CATCHWORDS – JURISDICTION – FREEDOM OF INFORMATION – transfer of freedom of information request – whether transfer valid – whether Tribunal has jurisdiction to review decision to transfer request – whether a deemed decision has been made to refuse access to documents – Tribunal has no jurisdiction.
Freedom of Information Act 1982 ss. 4, 15, 16, 24A, 30A, 54, 55 and 56
Evidence Act 1995 s. 160
Migration Act 1958 ss. 500, 501 and 501G
Re Bienstein and Commonwealth Ombudsman [2003] AATA 1197
McLean Bros & Rigg Limited v Grice (1906) 4 CLR 835
Knox County v Ninth National Bank 147 US 91
Selby v Pennings (1998) 19 WAR 520
Boddington v British Transport Police [1998] 2 WLR 639
Neowarra v State of Western Australia [2003] FCA 1402
Project Blue Sky Inc and Others v Australian Broadcasting Commission (1998) 194 CLR 355
Eshugbayi Elko v Officer Administering the Government of Nigeria [1931] AC 662
McDonald v Director-General of the Department of Social Security (1984) 1 FCR 354
Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387
DECISION AND REASONS FOR DECISION [2004] AATA 896
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2003/1115
GENERAL ADMINISTRATIVE DIVISION )
Re HELEN BIENSTEIN
Applicant
And ATTORNEY-GENERAL (COMMONWEALTH)
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 26 August, 2004
Place: Melbourne
Decision:The Tribunal has decided that it does not have jurisdiction in this matter.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 9 October, 2003, the applicant, Mrs Helen Bienstein, applied for review of a decision that she states has been deemed to have been made by the respondent, the Attorney-General pursuant to the Freedom of Information Act 1982 (“FOI Act”). The decision relates to a request made to the Attorney-General in a letter posted on 2 September, 2003:
under s. 15 of the FOI Act seeking “… release of all records that came into existence as a result of or incidentally to my communications with the Attorney General’s Department or with any other agency, Court or Minister. You should interpret the ambit of this request very broadly and disclose the existence of all files that include even a single document that pertains to me or to my legal actions, Notices of Constitutional Matter, inquiries and complaints. Requests, notices of meetings, draft letters, briefing notes, minutes, records of meetings or discussions, deliberations, directions, advice, decisions, instructions, investigations, recommendations, conclusions, orders etc. should all be included.
I am aware that your Department had various consultations regarding my matters with the AFP, the DPP and with your Office. I suspect that you, your Office and/or your Department, also contacted the Ombudsman, other Ministers and the Family Court. All records of such inter-agency contact are within the ambit of this request”; and
under s. 30A seeking waiver of “… all fees and charges for processing my FOI requests on grounds of financial hardship …”.
On the Minister’s behalf, Mr Bennett, who is the Director of the FOI Section in the Attorney-General’s Department (“Department”), submits that Mrs Bienstein’s request was transferred from the Attorney-General to the Department on or about 2 October, 2003 and that a decision was made regarding that request by the Department when it made a decision in relation to another request made to it by Mrs Bienstein. That decision is the subject of another application in the Tribunal numbered V2003/1268. It was agreed between the parties that the matter would be decided on the papers.
THE ISSUES
There are five issues:
May the Attorney-General transfer the requests even if Mrs Bienstein does not want them to be transferred?
If they are transferred, are:
(i)the decisions to transfer reviewable; and
(ii)are there inherent decisions to refuse the requests that are reviewable?
Did the Attorney-General transfer the requests to the Department?
Did the Attorney-General transfer the requests pursuant to s. 16 of the FOI Act?
Is the Attorney-General deemed to have made a decision refusing Mrs Bienstein’s requests?
CONSIDERATION
The Tribunal’s jurisdiction
In Re Bienstein and Commonwealth Ombudsman [2003] AATA 1197, I set out the steps that must be taken to ascertain whether or not the Tribunal has jurisdiction to review a decision (at pars. 8-11). In this case, the answer to the first step involving identification of the decisions is clear. Mrs Bienstein seeks review of decisions that she submits are deemed to have been made by the Minister. Section 55(1) of the FOI Act specifies the decisions in respect of which a person may apply to the Tribunal. Those decisions include those made under ss. 15 and 30A but they do not include decisions made under s. 16. Generally speaking, a person may not apply if he or she is entitled to apply for review of the decision under s. 54 i.e. to apply for internal review. The application under s. 55(1) is then made in respect of the decision made on internal review and not the initial decision (s. 55(2)).
When were Mrs Bienstein’s requests received by the Attorney-General?
On the basis of the copy of Mrs Bienstein’s requests, I find that they were prepared as a facsimile message but that they were sent as a letter. I have reached that conclusion as enclosed in the letter was a cheque for $30 to cover the application fee in case the fee was not waived and in order to avoid delays. Although I do not have any evidence of the day on which the letter was sent, I have assumed for the purpose of answering the question I have posed that they were posted on the day that they were dated i.e. 2 September, 2003. Using s. 160 of the Evidence Act 1995 as a guide for it does not apply to the Tribunal, it would have been received on 8 September, 2003 i.e. four working days after having been posted.
Was the Attorney-General entitled to transfer the requests under s. 16 without consulting Mrs Bienstein?
Mrs Bienstein specifically asked that her request not be transferred. As she pointed out in her submissions, she had made separate requests to the Attorney-General and to the Justice Minister as well as to the Attorney-General’s Department. In her view, the three requests were being processed concurrently. She also submitted that she had specifically asked the Justice Minister not to transfer her request.
Was the Attorney-General entitled to transfer the requests regardless of her request? I consider that he was and that follows from the provisions in s. 16. In that section, the word “agency” includes “Minister” (s. 16(6)). The Department comes within the description of an “agency” as defined in s. 4(1) of the FOI Act. Section 16(1) is relevant in this case. It provides:
“Where a request is made to an agency for access to a document and:
(a)the document is not in the possession of that agency but is, to the knowledge of that agency, in the possession of another agency; or
(b)the subject-matter of the document is more closely connected with the functions of another agency than with those of the agency to which the request is made;
the agency to which the request is made may, with the agreement of the other agency, transfer the request to the other agency.”
Sections 16(2) and (3) are worded differently. They are concerned with requests made to an agency for documents that originated with, or were received from, another agency that is specified in Part I of Schedule 2 of the FOI Act (s. 16(2)(a)) or in Part III or that is an agency that is a body corporate established by or under an Act specified in Part III (s. 16(3)(a)). Under both provisions, the agency receiving the request must transfer it to the other agency if the document has another quality. In the case of s. 16(2), it must be transferred if it is more closely connected with the functions of that body or person than with the agency to which the request is made (s. 16(2)(b)). In the case of s. 16(3), it must be transferred if it is more closely connected with the functions of the other agency in relation to documents in respect of which that other agency is exempt from the operation of the FOI Act.
If a request is transferred, it is taken to be a request made to the agency to which it is transferred and taken to be received at the time that it was received by the transferring agency (s. 16(5)).
It is apparent from the three situations set out in s. 16 that no consideration is given to the wishes of the person seeking access. Consideration is given instead to which agency has possession of the documents and with whose functions the subject matter of the documents is more closely connected. I have concluded, therefore, that the Attorney-General is entitled to transfer the request without consulting Mrs Bienstein.
Is there a reviewable decision under s. 24A inherent in a decision to transfer under s. 16?
Mrs Bienstein submitted that there is inherent in a decision to transfer a request under s. 16 a further decision. That decision is made under s. 24A and is to the effect that the documents do not exist or cannot be found. Section 24A provides that:
“An agency or Minister may refuse a request for access to a document if:
(a)all reasonable steps have been taken to find the document; and
(b)the agency or Minister is satisfied that the document:
(i)is in the agency’s or Minister’s possession but cannot be found; or
(ii)does not exist.”
Mrs Bienstein’s submission takes me back to the words of s. 16(1) for this is a case in which ss. 16(2) and (3) do not apply. In order for an agency to decide to transfer a request, it must come within either ss. 16(1)(a) or (b). If it is to come within the former, this involves a two part decision: that the document is not in the agency’s possession; and it is in the possession of another agency. If it is to come within the latter, there is only one decision to be made: is the subject-matter of the document requested more closely connected with the functions of another agency. It follows that, if an agency chooses to transfer a request pursuant to s. 16(1)(a), it must make a decision that it is not within its possession. That decision is not a pre-requisite to a decision to transfer under s. 16(1)(b).
Does that decision that is necessary for a transfer to be effected under s. 16(1)(a), necessarily entail a decision under s. 24A? I do not think that it does. There are two reasons for this. The first is that the decision made as a preliminary step to the decision to transfer under s. 16(1)(a) is not the decision that must be made under s. 24A. Apart from needing to be satisfied that all reasonable steps to find the document have been taken, the decision under s. 24A must either be that the document was in the agency’s or Minister’s possession but cannot be found or that the document does not exist. Apart from needing to be satisfied that the document is in the possession of another agency, the decision under s. 16(1)(a) is that the document is not in the possession of the agency or Minister. In short, in the case of s. 24A, there must be a decision that the document is in the possession of the agency and in the case of s. 16(1)(a) that it is not. Therefore, it cannot be inferred that, implicit in a decision to transfer under s. 16(1), is a decision to refuse a request under s. 24A.
The second reason for my reaching this conclusion is this. A decision that a document is not in the possession of an agency is a decision that is preliminary to the decision to transfer the request. It is not a decision dealing with the substance of the request at all. That is to say, it is not a decision to determine the request in the sense of granting it, refusing it or granting it in part and refusing the remainder. It is clear from the terms of s. 16 that the agency transferring the request is not determining it at all. It is clear from the provisions of s. 16(5) that the request has not been determined when it is transferred to the other agency. Indeed, it is deemed to have been received by the second agency at the time that it was received by the transferring agency. I deal with this further below. Section 16(4) underscores the point even further. It provides, among other matters, that the transferring agency must send the document to the other agency “… if it is necessary to do so in order to enable the other agency to deal with the request …”. Clearly the second agency is dealing with the request and that can only mean that it is determining it.
Does the Tribunal have jurisdiction to review a deemed decision under s. 15?
In certain circumstances, a decision is deemed to have been made. They occur if a request has been made in accordance with s. 15 and notice of a decision has not been received by the applicant either within 30 days of the request’s being received by the Minister or agency or within that period extended in accordance with s. 15(6) (s. 56(1)). For the purposes of s. 55, the principal officer of the agency or the Minister is deemed to have made a decision refusing to grant access to the document. The decision is deemed to have been made on the last day of the 30 day period or that period as extended.
Does s. 54 have any operation in relation to the deemed decision? The answer depends upon whether a person is entitled to apply for review under s. 54. In so far as a decision of an agency is concerned, s. 54(1) provides, in general terms and in so far as it is relevant to this case, that a person may ask for a decision made regarding a request under ss. 15 or 30A be reviewed. The short answer is that s. 54(1) does not apply to a decision deemed to have been made by a Minister under s. 56(1) for it applies only to decisions made in relation to requests by an agency. The effect of s. 54(3)(b) is that a decision deemed to have been made by an agency under s. 56(1) is not subject to review under s. 54(1).
Application of the provisions in this case leads to the conclusion that, if the Attorney-General is deemed to have made a decision under s. 56(1) in relation to a request under s. 15(1), Mrs Bienstein is entitled to make an application for its review in the Tribunal. If the request has been transferred to the Department and it is deemed to have made a request, she is also entitled to apply to the Tribunal. The internal review provisions in s. 54 do not have any application in either case.
Does the Tribunal have jurisdiction to review a deemed decision under s. 30A?
Where 30 days have passed in relation to a request for remission under s. 30A, s. 30A(1B) provides that the agency or Minister to whom the request has been made is deemed to have made a decision that no part of the application fee is to be remitted. Where the request for remission has been made to a Minister, s. 54(1) has no relevance for the reasons I have already given regarding a deemed refusal of a request for access under s. 15(1). The application would be made directly to the Tribunal for review of the deemed decision under s. 55(1).
Where the decision is deemed to have been made by an agency under s. 30A, there is no provision equivalent to that in s. 54(3) dispensing with internal review where a request for access has been deemed to have been refused. That is to say, there is no provision that s. 54(1) does not apply in relation to a decision deemed to have been made under s. 30A(1). That means that, once a request to remit an application fee is deemed to have been refused, the applicant must apply for review under s. 54. Once a decision has been made under s. 54, an application may be made to the Tribunal (s. 55(1)). If a decision is not given within the time limits set out in s. 55(3), the effect of that provision when read with s. 55(4) is that an application may be made for review of the deemed decision.
Did the Attorney-General transfer the requests?
Did the Attorney-General transfer the requests? I find on the papers that, on 2 October, 2003, Ms Kym Taylor, who was an Adviser to the Attorney-General, sent Mr Bennett an email. It was headed “Bienstein” and continued: “We don’t have anything here. If anything turns up in the packing process I’ll let you know.” Mr Bennett replied thanking her for her email and then said: “… can you just send me an e-mail asking me to accept a transfer of the request? I’ll then respond to it on your behalf at the same time as I respond to Mrs B’s request to the Department. …”. Later that same day, Ms Taylor sent Mr Bennett an email asking him: “Could you please accept a transfer of this FOI request.”
There is no indication in the material that I have that Ms Taylor advised Mrs Bienstein of the transfer in accordance with s. 16(4). As he had previously indicated to Ms Taylor, Mr Bennett went on to make a decision regarding the transferred requests when he decided Mrs Bienstein’s request to the Department. That decision is the subject of another application in the Tribunal numbered V2003/1268. Although there is no record of Mr Bennett’s formally accepting the requests on behalf of the Department, I find that his acceptance is implicit in his responding.
In view of this exchange, I find that Mrs Bienstein’s requests were transferred to the Department on 2 October, 2003.
Were Mrs Bienstein’s requests transferred in accordance with s. 16?
My conclusion leaves open the question whether Mrs Bienstein’s requests were transferred pursuant to s. 16. That is so because, on the exchange of correspondence that I have been given, there is no indication that there was any consideration given to whether s. 16(1)(a) was fully satisfied or whether s. 16(1)(b) was considered. The only consideration that appears on the face of the correspondence relating to the transfer was that the documents were not in the possession of the Attorney-General. There is no indication that consideration was given to whether the documents were, to the knowledge of the Attorney-General, in the possession of the Department to which the requests were transferred. There is no indication that there was any consideration given to whether the subject-matter of the documents is more closely connected with the functions of the Department than with those of the Attorney-General to whom the requests were made. There is no evidence that there was compliance with s. 16(4) to the extent of informing Mrs Bienstein of the transfer.
Is it of any consequence that there is no indication that these matters have not been addressed? In the first instance, this question requires first a consideration of the presumption of regularity and any application it may have. As I find that the Attorney-General purported to transfer the request pursuant to s. 16(1)(b), there is a further question as to whether failure to comply with all of the provisions of s. 16 means that it was not transferred in fact under that section.
Presumption of regularity
There is a presumption at common law that an administrative act or decision is presumed to have a proper legal and procedural basis. It is sometimes expressed in terms of the Latin maxim Omnia praesumuntur rite esse acta although other formulations may be adopted. An illustration of the presumption is provided by Griffith CJ in McLean Bros & Rigg Limited v Grice (1906) 4 CLR 835 when he approved a statement by Brewer J in Knox County v Ninth National Bank 147 US 91 at 97 and went on to illustrate the principle:
“ “It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act.” A very well-known illustration of that rule is that acting as owner of property is prima facie evidence of ownership. Now, what is the ordinary course of affairs in human nature when a meeting is held, and it is necessary that there should be a certain number of persons present? The first thing, whether in a legislative body or otherwise, is to ascertain the presence of a quorum of competent members, or, as it is sometimes called, to verify their powers, which is done before they proceed to business. Prima facie, then, in the ordinary course of business, when persons with specifically prescribed powers meet together, the first thing they would naturally do would be to verify their powers, and then proceed to act, and the fact of acting is prima facie evidence that they had authority to act, just as a person who attempts to deal with property is regarded prima facie as the owner.” (at 850)
The presumption was considered by the Full Court of the Supreme Court of Western Australia in Selby v Pennings (1998) 19 WAR 520 (Ipp, Wallwork and Owen JJ). The Court was concerned in part with whether a notice classifying a section of State forest as a temporary control area was void. Such a notice could only be issued on the recommendation of another body. Ipp J analysed a number of cases considering the presumption in the context of administrative acts and decisions and legislative acts. He said of the common law presumption that it applies “… only to matters of form, rather than of substance. Essentially, the presumption is that the formal requirements of judicial or administrative acts which are good in substance have been met. …” (at 528). On that analysis, the presumption has no application to whether the notice had been issued on a recommendation as that is a matter of substance. It is not a matter of form. For the purposes of the case, though, his Honour assumed that the presumption could apply to matters of substance as well as of form.
Ipp J considered a range of cases in the criminal jurisdiction. He concluded that they are not easily reconciled if at all. In the context of a criminal charge, he adopted the following passages from Boddington v British Transport Police [1998] 2 WLR 639 at 646-7 per Lord Irvine:
“… [T]he true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all. …”
and per Lord Steyn at 664:
“… There is no rule that lends validity to invalid acts. In a practical world, however, a court will usually assume that subordinate legislation, and administrative acts, are valid unless it is persuaded otherwise.” (at 534)
Sundberg J has also considered the presumption in Neowarra v State of Western Australia [2003] FCA 1402 in which the State had relied on the presumption in establishing that certain areas of land had been created validly as reserves. In the case of some areas, the relevant Government Gazettes could not be located and in the case of others they did not contain a complete description of the reserve. In relation to those reserves where any relevant Gazettes were missing, his Honour concluded:
“… The ‘missing’ Gazettes mostly relate to events that occurred over a hundred years ago. The publication of the relevant information in the Gazette is a formality or detail of an officer’s required procedure. It is not a condition of the power to create a reserve. Not to apply the presumption would affect the security of apparently vested rights; applying it will avoid uncertainty as to tenure. Finally, the evidence adds an element of probability. In some cases the Minute Paper contains a recommendation the reservations be made. In all cases the companion requirement to Gazettal, namely setting forth the reserve on the authenticated maps, has been complied with. …” (at par. 567)
With regard to the reserves inadequately described in the Gazettes, Sundberg J found that gazettal was a formality to be completed after the reserves had been made. Gazettal was not a condition precedent to the making of the reserve. Adopting the principles set out in Project Blue Sky Inc and Others v Australian Broadcasting Commission (1998) 194 CLR 355 (McHugh, Gummow, Kirby and Hayne JJ, Brennan CJ dissenting), he concluded that publication is not an essential pre-requisite to the exercise of the power to make the reserve.
Both Selby v Pennings and Neowarra v State of Western Australia indicate that there is a presumption of regularity that administrative acts or statutory duties are duly and properly performed but it is a presumption that may be set aside. What is required to set it aside depends upon the issue under consideration. Where a criminal charge is under consideration or the liberty or property of an individual is at stake, it will generally be set aside at the outset or, if applied, readily rebutted by evidence that raises a doubt as to whether the act or decision has been properly taken (Selby v Pennings, per Ipp J at 532). As Lord Atkin said in Eshugbayi Elko v Officer Administering the Government of Nigeria [1931] AC 662 at 670:
“… In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive.”
In the context of a civil proceeding or where liberty or property is not at stake, the presumption will generally apply but it can be set aside. This means that the person carrying out an administrative act or making an administrative decision is not required to show at the outset that, for example, the necessary conditions to carrying out an act or making a decision have been satisfied. It is up to the person who argues that those conditions have not been satisfied to produce evidence or material that indicates that they have not. Some of that evidence may lie on the face of any documents or it may lie in evidence of actions that have been taken or views expressed.
In the context of administrative review, it seems to me that similar principles apply. They are not identical for the burden to produce evidence or material to which the authorities refer is an evidential burden. Burdens of proof, be they legal or evidential, are not favoured in merits review but the commonsense proposition that a failure to produce evidence when it is known to a party may lead to an unfavourable conclusion being drawn is well-known (McDonald v Director-General of the Department of Social Security (1984) 1 FCR 354, Woodward, Northrop and Jenkinson JJ per Woodward J at 358). Even where evidence is not produced, the task of the Tribunal is also well-known:
“… It must act on the material which is before it but, … it is not bound by rules of evidence and may inform itself on any matter in such manner as it thinks appropriate.” (at 358 per Woodward J)
I have already set out the correspondence relating to the transfer. That gives no indication that any thought was given to any matter other than that the documents were not in the possession of the Attorney-General. Ms Taylor’s email dated 2 October, 2003 refers to the “packing process”. As I take “judicial notice” of the fact that the then Attorney-General ceased to hold that office on 7 October, 2003, it may be understandable that thoughts were on the packing rather than on the niceties of s. 16. The oversight’s being understandable does not add anything to the scales in determining whether the requirements of s. 16(1)(a) or (b) were met.
On the material that I have and there being no reference to whether or not the Attorney-General or his staff made any enquiries about whether the documents requested by Mrs Bienstein were in the Department’s possession, I consider that this is enough to set aside any presumption that the transfer was properly effected under s. 16(1)(a) if it was effected at all under that section. I go further, and find that I am not satisfied that the requirement of s. 16(1)(a) that, to the knowledge of those in the Attorney-General’s office, the documents sought in Mrs Bienstein’s request were in the Department’s possession. On the material that I have, I find that the question was never asked of the Department and those in the Attorney-General’s office did not know whether the Department held any documents at the time.
Section 16(1)(b) is a different matter. It does not raise a question of whether the Attorney-General knew the whereabouts of the documents sought by Mrs Bienstein. It does not raise a question whether the documents sought actually exist. Instead, it raises a question of the subject matter of the documents sought. Was that subject matter more closely connected with the functions of another agency than with those of the Attorney-General? It is clear from the face of Mrs Bienstein’s request for access that Mrs Bienstein believed that the Department had consulted with the Australian Federal Police (“AFP”), Director of Public Prosecutions (“DPP”) and the Attorney-General’s office. She also suspected that it had contacted the Family Court, other Ministers and the Ombudsman. On the face of her request, at least six other agencies could potentially hold documents relating to her. Section 16(1)(b) does not require an agency to identify the agency to whose functions is most closely related although there is some practical merit in its doing so in order for a request to be handled most expeditiously. It only requires that the subject matter of a document be more closely related to the functions of the agency to which it transfers the request than its own. In this case, the functions of the Department included its dealing with and responding to communications to it and with certain matters relating to courts and alternative dispute resolution as set out in the Administrative Arrangements Order. The functions of the Attorney-General included similar matters but, given the terms of Mrs Bienstein’s request, I am satisfied that it was the Department whose functions were more closely connected to the documents sought in her request. It was the Department who was central to the consultations and contacts with the AFP, DPP, Family Court, Attorney-General’s office and Ministers. Therefore, I am satisfied that subject matter of the documents sought in the request were more closely connected with the functions of the Department. This mean that the request for access to the documents could be transferred pursuant to s. 16(1)(b). As I have found that the request was actually transferred and that it could properly be transferred to the Department pursuant to s. 16(1)(b), I am satisfied that the Attorney-General’s office purported to transfer it pursuant to that provision. The request for remission of fees was ancillary to the request for access to documents and so I find that it was necessarily transferred at the same time.
Project Blue Sky Inc and Others v Australian Broadcasting Commission
In Project Blue Sky and Others v Australian Broadcasting Commission, the High Court considered the distinction that had previously been made between a mandatory provision and a directory provision in relation to the exercise of a power. At one time, failure to follow a mandatory provision might have led to an exercise of a power being found to be invalid but failure to follow a directory power would not have. Much would have turned then upon the proper characterisation of a provision.
The distinction between mandatory and directory provisions is no longer a valid distinction to draw. That follows from the majority judgement of the High Court in Project Blue Sky Inc and Others v Australian Broadcasting Commission. As Brennan CJ explained in his dissenting judgment:
“…The description of provisions as either mandatory or directory provides no test by which the consequences of non-compliance can be determined; rather, the consequences must be determined before a provision can be described as either mandatory or directory.” (page 374)
His Honour’s approach is consistent with that adopted by the majority, who added:
“... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’ ….” (pages 390-391)
These principles were considered by Finkelstein J in Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 in the context of s. 500(6C) of the Migration Act 1958. That section provides that, if a decision under s. 501 relates to a person in the migration zone, an application for review of a decision must be accompanied by, or by a copy of, the document notifying the person of the decision and one of the sets of documents given to him or her under s. 501G(2). Finkelstein J concluded that a failure to comply with s. 500(6C) would not result in invalidity of the application. He added that “no purpose would be served by invalidating an application for a failure to provide documents which the Tribunal can obtain in any event” (at 391). His Honour observed that failure to comply with s. 500(6C) would still mean that the application would be dealt with expeditiously as intended by Parliament. The Tribunal could require the Minister to produce the documents once the application has been lodged. Cancellation of a visa would result in the deportation of the non-citizen and so cause great hardship to him or her and to his or her family. It was difficult to imagine, he said, that Parliament intended that a non-citizen should lose his or her right to review merely because documents that remained in the possession of the Minister had not been lodged.
In the case I must consider, the Attorney-General did not notify Mrs Bienstein of the transfer of the request in accordance with s. 16(4). In accordance with the principles in these cases, I must have regard to the language of s. 16(4) and to the scope and purpose of s. 16 and of the FOI Act. When I do that, it seems to me that Parliament intended the notification requirement to be procedural. It intended that the person making the request be notified that the request was being handled by another agency. At the same time, it is clear that the notification in s. 16(4) is notification that occurs “where a request is transferred to an agency in accordance with this section”. That is to say, it occurs after the transfer has occurred. Therefore, failure to comply with s. 16(4) does not affect the transfer let alone render it invalid.
Were the requests deemed to have been refused while in the Attorney-General’s possession?
The date 30 days after 8 September, 2003 was 8 October, 2003. As there is no evidence of any extension of time pursuant to s. 15(6), that is the time after which Mrs Bienstein’s requests would be deemed to have been refused if they were not responded to. Given that the date of the transfer of Mrs Bienstein’s requests to the Department was 2 October, 2003, I find that they were transferred within 30 days of the Minister’s receiving them. Therefore, while they in his possession, he was not deemed to have made a decision in relation to either request. Putting aside any issue regarding the validity of the transfer, I have concluded that an application cannot be made to the Tribunal in respect of any decisions made by the Attorney-General as he has not made any decisions and is not deemed to have made any decisions. As the Tribunal’s jurisdiction is limited to the review of decisions or deemed decisions, I do not have jurisdiction to review Mrs Bienstein’s applications lodged in the Tribunal on 9 October, 2003.
For the reasons I have given, I find that the Tribunal does not have jurisdiction.
I certify that the forty-one preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ...............................................................
R. Crook Associate
Date of Hearing on the Papers 12 January, 2004
Date of Decision 26 August, 2004
For the Applicant self
For the Respondent Mr M. Bennett
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