Bienstein and Attorney-General (Commonwealth of Australia) and Anor
[2008] AATA 7
•4 January 2008
CATCHWORDS – FREEDOM OF INFORMATION – whether Tribunal has power to order Minister to make a decision – whether any such decision made by Minister or an authorised person - whether any need for the Minister to make a decision when decision refusing access already deemed to have been made – whether Tribunal has jurisdiction to review deemed decision –Tribunal has jurisdiction.
PRACTICE AND PROCEDURE – whether obligation to lodge statement of reasons and relevant documents under s 37 of AAT Act applies when decision deemed to have been made – whether time to do so should be extended - whether Tribunal obliged to record or arrange for recording of directions hearing.
Administrative Appeals Tribunal Act 1975 ss 3, 5, 25, 26, 27, 29, 32, 33, 35, 37, 41, 42D and 43
Freedom of Information Act 1982 ss 3, 4, 11, 15, 16, 20, 21, 22, 23, 26, 29, 30A, 31, 54, 55, 56 and 58
Public Service Act 1999 s 11
Bienstein v Attorney-General (Commonwealth) and Minister for Justice and Customs (Commonwealth) [2007] FCA 1174; (2007) 96 ALD 639
Blake v Norris (1990) 20 NSWLR 300
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560
Cashman and Partners v Secretary, Department of Human Services and Health [1995] FCA 1730; (1995) 61 FCR 301
Collector of Customs v LNC (Wholesale) Pty Ltd (1989) 19 ALD 341
Commonwealth v Ford (1986) 9 ALD 433; 65 ALR 323
DJL v Central Authority (2000) 201 CLR 226; 170 ALR 659; 74 ALJR 706
Dooney v Henry (2000) 174 ALR 41
Executors of the Estate of the late Miss Santha Thevy Subrahmanyam and Commissioner of Taxation [2002] ATC 2303; (2002) 51 ATR 1173; [2002] AATA 1298
London County Council v Agricultural Food Products Ltd [1955] 2 QB 218
Mafar and Prieur v Television New Zealand Ltd [2006] NZSC 33
Metropolitan Borough and Town Clerk of Lewisham v Roberts [1949] 2 KB 608
R v Crown Court at Knightsbridge ex parte International Sporting Club (London) Ltd [1981] 3 All ER 417
R v Northumberland Compensation Appeal Tribunal ex parte Shaw [1952] 1 All ER 122; KB 338
R v Skinner [1968] 2 QB 700
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Re Golden Chemical Products Ltd [1976] Ch 300
Re McKinnon and Secretary, Department of Prime Minister and Cabinet [2007] AATA 1969
Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion; ex parte Director-General of Social Services (1979) 2 ALD 86
Re Wang and Australian Federal Police (2005) 88 ALD 765; [2005] AATA 908
Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383
DECISION AND REASONS FOR DECISION [2008] AATA 7
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/4895
GENERAL ADMINISTRATIVE DIVISION )Re:HELEN BIENSTEIN
Applicant
And:ATTORNEY-GENERAL (COMMONWEALTH OF AUSTRALIA)
Respondent
2007/4896
Re:HELEN BIENSTEIN
Applicant
And:MINISTER FOR JUSTICE AND CUSTOMS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 4 January 2008
Place: Melbourne
Decision:The Tribunal has decided that:
(1)it has no power to direct the Attorney-General or the Justice Minister to make a decision;
(2)it has jurisdiction to review the decisions deemed to have been made by the Attorney-General and the Justice Minister i.e. decisions to refuse Mrs Bienstein’s request for access to documents;
(3)the Attorney-General and Justice Minister have a duty to comply with s 37(1) of the AAT Act and, under that section, the time within which they must do so to is extended until 1 February 2008; and
(4)it is under no obligation to order that the directions hearing be recorded.
S A FORGIE
Deputy President
REASONS FOR DECISION
Under the Freedom of Information Act 1982 (FOI Act), Mrs Helen Bienstein made a request to the respondents, the Attorney-General and the former Minister for Justice and Customs (Justice Minister), for access to certain documents. Although her requests were not expressed in the same terms, her request to the Justice Minister gives a flavour of the documents to which she sought access:
under s. 15 of the FOI Act “… for release of all documents in relation to me or that came into existence because of me or because of my dealings with any of the three arms of government, both Commonwealth and State” …”
Among other matters, the Tribunal decided that the Attorney-General and the Justice Minister had transferred the requests to the Attorney-General’s Department (Department) under s 16(1)(b) of the FOI Act. The Federal Court decided that this part of its decision was in error as they could not have transferred the requests under that section as they had no documents that met the request and so could not consider whether the subject matter of any such document related more closely to the functions of the Department than to their functions. As the requests remained with the Attorney-General and the Justice Minister and time had passed, the Tribunal had jurisdiction as s 56(1) deemed them to have made a decision refusing the requests. Therefore, the Federal Court remitted these matters to the Tribunal to be heard and determined again according to law.
In the course of a directions hearing held on remittal, Mrs Bienstein has insisted that the Attorney-General and the Justice Minister must now make decisions on her requests. If their decisions are to refuse access, she is of the view that they must give written reasons for coming to those decisions. Those decisions, Mrs Bienstein submitted, should be made by an authorised person under s 26 of the FOI Act. The Tribunal has power to review the failure of the Attorney-General and of the Justice Minister to make decisions on her requests. Under s 11 of the FOI Act, Mrs Bienstein submitted, she has a legally enforceable right to receive a decision. The obligation of the Attorney-General and of the Justice Minister under s 37(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) is in respect of decisions that they have actually made and not simply in respect of those they are deemed to have made. Mrs Bienstein understood Justice Gray to have said that the requests were still with the Attorney-General and the Justice Minister and that it was their duty to deal with them. On behalf of the Attorney-General and the Justice Minister, Mr Bennett submitted that each is deemed to have made a decision and that each should now be preparing documents as required by s 37 of the AAT Act. In view of the operation of s 56(1) of the FOI Act, Mr Bennett continued, there is no need for the Attorney-General or for the Justice Minister to make any decision on her requests to them.
I have decided that the effect of s 56(1) of the FOI Act is that, for the purposes of enabling an application to be made, the Attorney-General and the Justice Minister are deemed to have made decisions refusing her requests. There is no requirement that they make any further decision or that an authorised person make a decision on their behalf and the Tribunal has no power to order or direct them to do so. The Tribunal has jurisdiction to review the deemed decisions once Mrs Bienstein lodged her applications for their review. Section 11 of the FOI Act gives Mrs Bienstein a legally enforceable right to obtain access to certain documents but only in accordance with the legislation itself. It cannot be used to give the Tribunal a power not found elsewhere in the FOI Act or, indeed, in the AAT Act. I have also decided that the Attorney-General and the Justice Minister are under an obligation to comply with s 37(1) of the AAT Act. I have extended the time within which they must comply with that obligation.
FEDERAL COURT JUDGMENT
In considering the appeals from my earlier decisions, Gray J summarised the events to that time and the issues he had to consider in the following way:
“… The Tribunal decided that it did not have jurisdiction to deal with two applications for review made by the applicant. Each of those applications for review related to a request made pursuant to the Freedom of Information Act 1982 (Cth) (‘the FOI Act’), one to the Attorney-General and the other to the Minister for Justice and Customs (‘the Justice Minister’), seeking access to certain documents. Both the Attorney-General’s office and the Justice Minister’s purported to transfer the requests to the Attorney-General’s Department (‘the Department’), pursuant to s 16 of the FOI Act. There is a question in each case whether these purported transfers gave rise to a deemed refusal to provide access to the documents. In each case, there is an antecedent question as to whether the purported transfer was valid, and a subsidiary question as to whether a transfer of a request absolves the original agency, to which the request is addressed, from the obligation to search for documents answering the descriptions in the request, to determine whether it has such documents in its possession.”[1]
[1] Bienstein v Attorney-General (Commonwealth) and Minister for Justice and Customs (Commonwealth) [2007] FCA 1174; (2007) 96 ALD 639 at [1]; 639-640
Central to the issues were ss 16(1)(b), (3A) and (4) of the FOI Act, which provide:
“(1) Where a request is made to an agency for access to a document and:
(a)…
(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.”
“(3A) Where:
(a)a request is made to an agency for access to more than one document; and
(b)one or more of those documents is a document to which subsection (1), (2) or (3) applies;
this section applies to each of those documents as if separate requests for access had been made to the agency in respect of each of those documents.”
“(4) Where a request is transferred to an agency in accordance with this section, the agency making the transfer shall inform the person making the request accordingly and, if it is necessary to do so in order to enable the other agency to deal with the request, send the document to the other agency.”
Having regard to these provisions, their place in s 16 and in the context of the FOI Act generally, Gray J decided that:
“… The question whether a document is in the agency’s possession can only be answered after the agency has made any necessary search for that document, or a document answering its description. …
The context of the remaining provisions of s 16 of the FOI Act tends to confirm that a transfer can only be put into effect after an agency has conducted a search to ascertain whether or not it has the document sought. Section 16(3A) provides that a request for more than one document (which would include a request for documents by description of categories) is to be treated, for transfer purposes, as a request for each of those documents separately. In conjunction with s 16(1)(b), this has the effect that the request can only be transferred to the extent that it relates to each specific document of which it can be said that the subject-matter is more closely connected with the functions of another agency. Section 16(3A) makes it clear that, where the request describes a category or categories of documents to which access is sought, s 16(1)(b) provides no authority for the transfer of the whole of the request. The specific subject-matter of each document answering the description in the request must be considered. It is unlikely that this could be done without first ascertaining whether the agency receiving the request has documents answering the description. Similarly, s 16(4) requires an agency transferring a request to another agency in any of the circumstances outlined in s 16 to send ‘the document’ the subject of the request to the other agency ‘if it is necessary to do so in order to enable the other agency to deal with the request’. Plainly, without having ascertained whether it has such a document, the transferor agency would not be in a position to comply with this requirement.”[2]
[2] [2007] FCA 1174; (2007) 96 ALD 639 at [34]-[35]; 650-651
Having regard to the facts, his Honour decided:
“ The Tribunal was therefore in error when it said in its reasons for decision in each case that s 16(1)(b) does not raise a question of whether the Attorney-General or the Justice Minister knew the whereabouts of the documents sought by the applicant, and that it did not raise a question whether the documents sought actually existed. The Tribunal should have held that s 16(1)(b) could only authorise the transfer of a request so far as it related to a specific document, actually existing and with a subject-matter more closely related to the functions of the appropriate department than to the functions of the Attorney-General or the Justice Minister, as the case may be.
The Tribunal accepted in each case that where no documents in the possession of the Attorney-General or the Justice Minister. … this is an appeal limited to a question of law, and I must accept the Tribunal’s findings that neither the Attorney-General nor the Justice Minister … had any documents to which the applicant might have been granted access. That being the case, neither the Attorney-General nor the Justice Minister could consider the subject-matter of any such document. If neither could consider the subject-matter of any such document, neither could determine the question whether that subject-matter was more closely related to the functions of the Department than to the functions of the Attorney-General or the Justice Minister respectively. In the absence of reference to any specific document, and its subject-matter, the decision necessary to trigger the exercise of the power to transfer given by s 16(1)(b) could not be made.
The Tribunal was therefore in error in deciding that each of the transfers could have been made properly pursuant to s 16(1)(b). If neither transfer could have been made, it follows that the Attorney-General and the Justice Minister remained in possession of their respective requests and responsible for dealing with them. It is not express, but it is certainly implicit in the reasons for decision of the Tribunal in each case that the Attorney-General and the Justice Minister did not make a decision on the request within the 30-day period specified in s 15(5) of the FOI Act. There was no extension of time pursuant to s 15(6). In the absence of a decision, there was a deemed decision under s 56(1) of the FOI Act, which entitled the applicant to apply to the Tribunal for review, pursuant to s 55(1). No application for internal review was necessary under s 54 as a prerequisite to an application to the Tribunal. Accordingly, the Tribunal did have jurisdiction in relation to each application for review.”[3]
LEGISLATIVE BACKGROUND
[3] [2007] FCA 1174; (2007) 96 ALD 639 at [39]-[41]; 652-653
Overview of access provisions of the FOI Act
The right that the FOI Act gives to a person to have access to documents is set out in s 11. It provides:
“(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.”
The opening words of s 11 of the FOI Act impose the first qualification to the right. They are that the right is “subject to this Act”. That is to say, the right is to be found in and circumscribed by the FOI Act. It is not an unlimited right and the correlative duty imposed on an agency or Minister when receiving a request for access is similarly not unlimited. Qualifications of a procedural nature and others related to the work imposed on an agency or Minister by the request are found in Part III of the FOI Act. Other qualifications are concerned with 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”.[4] These are found in Part IV.
[4] FOI Act, s 3(1)(b)
In addition to these groups of qualifications, there are qualifications implicit in the words “document of an agency” and “exempt document”. The right of access is given to a “document of an agency” i.e. it is given to:
“… a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency.”[5]
The right of access does not, however, extend to an “exempt document”. That is, it does not extend to:
“(a) a document which, by virtue of a provision of Part IV, is an exempt document;
(b)a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act; or
(c)an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.”[6]
[5] FOI Act, s 4(1)
[6] FOI Act, s 4(1)
Finally, it should be noted that the right given by s 11 of the FOI Act is a “right to obtain access in accordance with this Act” (emphasis added). This reflects provisions such as s 20, which provides for the form in which access may be given, s 21, which provides for deferral of access, and s 22, which provides for the deletion of exempt matter or irrelevant material. The right to obtain access in accordance with FOI Act does not extend to a right to require either an agency, a Minister or the Tribunal to do or not do something that is not provided for in the FOI Act.
Who makes a decision in relation to a request?
In most cases, a decision in respect of a request made to an agency may be made on behalf of the agency by any one of three persons. One is the responsible Minister, another is the principal officer of the agency and the third is an officer of the agency acting within the scope of the authority exercisable in accordance with arrangements approved by the responsible Minister or the principal officer of the agency.[7] No provision is made in the FOI Act for a decision in respect of a request made to a Minister.
[7] FOI Act, s 23(1)
It is important to note at the outset that the decision-making powers in relation to decisions relating to a request made to an agency are expressed in terms of authorisation, and not of delegation. To begin with, s 23(1) of the FOI Act speaks of a decision’s being made “on behalf of” an agency. That is followed by the identification of two persons who may make such a decision – the responsible Minister and the principal officer of the agency. Others who may make a decision are described as those “acting within the scope of authority exercisable by him or her in accordance with arrangements approved by …” one or other of the first two decision-makers. These are words of authorisation and not of delegation. It might be thought that the difference does not matter because the outcome is the same; a decision has been made on a request made to an agency. I would not agree. There is a very practical difference between the two. If authorised to make a decision, the decision is made in the name of the person authorising it.[8] If made under a delegation, the decision is made in the name of the delegate and not on behalf of the person delegating the power.[9] It would seem from the form of s 23(1) that the responsible Minister, principal officer of the agency and an officer acting under an authorisation are all acting under an authorisation, rather than under a delegation, when making a decision on behalf of an agency.
[8] London County Council v Agricultural Food Products Ltd [1955] 2 QB 218 per Romer LJ at 224
[9] See Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion; ex parte Director-General of Social Services (1979) 2 ALD 86 at 93-95
That brings me to the decision made in relation to a request made to a Minister. There can be no doubt that a Minister may make the decision on that request him or herself. It would seem clear that a Minister may not delegate his or her power to make that decision or authorise another to make it on his or her behalf. There is no express power of delegation to be found in the FOI Act. In view of the way in which s 23(1) is expressed in relation to an agency, there would seem to be no basis on which to imply such a power in relation to a Minister.
There might be thought to be a basis to imply a power of authorisation on the basis of the principles set out in Carltona Ltd v Commissioner of Works,[10] in which Lord Greene MR, with whom Goddard and du Parcq LL J agreed, said:
“It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority. …”[11]
[10] [1943] 2 All ER 560 and see generally the discussion in Administrative Law, Wade and Forsyth, 9th edition, 2004 at 316-322
[11] [1943] 2 All ER 560 at 563
The principle in this case has been followed in the United Kingdom[12] and also in Australia where it has been extended to the heads of large government departments.[13]
[12] Metropolitan Borough and Town Clerk of Lewisham v Roberts [1949] 2 KB 608 at 621 per Denning LJ and R v Skinner [1968] 2 QB 700; Re Golden Chemical Products Ltd [1976] Ch 300
[13] See, for example, Dooney v Henry (2000) 174 ALR 41 at 45-48
Whether the principle applies to a decision in relation to a request made to a Minister depends on the provisions of the FOI Act. As I have said, there is no mention of decision-making in relation to such a request in s 23. That does not take the matter one way or the other. Another relevant section is s 54(1). It provides for internal review of a decision that “… has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency …”. No mention is made of a decision made in relation to a request made to a Minister. Again, this does not take the matter any further one way or the other. It could be argued that, had Parliament contemplated that the decision could be made under an authorisation, it could be expected that s 54 would provide for the review of the decision made on internal review as it has done in relation to decisions made on behalf of the agency other than at the two most senior levels. Equally, it could be thought that the general principles expressed in the Carltona case would lead to the conclusion that the Minister accepts direct responsibility for decisions made by those whom he or she has authorised. If that is the case, there is no need for internal review.
I have looked also at s 15(2)(d) of the FOI Act. It provides that the request must:
“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 officer of the agency or Minister specified in a current telephone directory.”
I do not consider that this section assists in resolving the question at all. It is a purely administrative provision directed to ensuring that a person may make a request as easily as possible and without being bound by unnecessary technicalities. It has nothing to do with decision-making by an agency or by a Minister.
I have also had regard to the subject matter dealt with by the FOI Act. It is legislation intended to ensure that, within the restrictions found in the legislation itself, the public has as access to as much information in documentary form as it can. Given the complexity that can attend some requests, the time limits for decision-making set out in ss 15, 29, 30A and 31 suggest that the turn around times for requests can be quite tight. Given the demands on Ministerial time quite apart from any responsibilities under the FOI Act, there may well be occasions when a Minister simply might not be available to make a decision on a request made to him or her within the prescribed time limits. Having regard to all of these matters, it would seem that the FOI Act has not displaced the general principle that a Minister may authorise another to make a decision on his or her behalf. The decision would be made in the Minister’s name and the Minister would accept responsibility for it.
When does the Tribunal have jurisdiction to review a decision?
In general terms, the Tribunal’s role comes into play when a decision has been made and an enactment provides that an application may be made for review of decisions made in the exercise of powers conferred by that enactment.[14] The effect of s 25(4) of the Administrative Appeals Tribunal Act 1975 is that the “... Tribunal has power to review any decision in respect of which application is made to it under any enactment.” The remaining ten sub-sections of s 25 go on to refine the general proposition made in s 25(1) and to provide that an enactment may modify the operation of any particular provision of the AAT Act. Of particular interest in this case is s 25(6) which provides:
“If an enactment provides for applications to the Tribunal:
(a)that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications, and
(b)those sections and subsections have effect subject to any provisions so included.”
[14] AAT Act, ss 25(1) and (2)
It is clear from s 25 generally and from ss 25(1) and 25(2), to which I have referred, that Parliament intended that the Tribunal’s power of review be defined and circumscribed by the enactment providing for that review. This interpretation is consistent with the statements made by the Attorney-General in his Second Reading speech in the House of Representatives.[15]
[15] Hansard, House of Representatives, page 1187
The effect of s 25 is that regard must be had to the terms of the enactment to decide whether or not the Tribunal has been given jurisdiction. In this case, regard must be had to the FOI Act.
Sections 55 and 56 provide for the decisions in respect of which an application may be made to the Tribunal. Only one of those decisions is relevant – that in s 55(1)(a) – but I will put it in the context of four of the others provided for in s 55(1) and relevant to a request for access to a document:
“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
(ab)a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or
(b)a decision to defer the provision of access to a document; or
(c) …
(d) …
(e) …
(f)a decision to grant access to a document only to a qualified person under s 41(3); or
(g)…
(h)…”
As can be seen, s 55(1) begins by stating that what follows is “Subject to this section”. That means that a person’s right to make an application for review is qualified by other provisions of s 55. One of the qualifications is that an application for review may not be made if a person is, or has been entitled to apply for internal review under s 54. If that is the case, the person may only apply for review of the decision made on internal review. That is the effect of s 55(2) of the FOI Act.
Sections 55(1) and 55(2) are predicated upon an assumption that a decision has been made and, if it is of a sort in relation to which the person is entitled to apply for internal review under s 54, that the person has made such an application and the agency has made a decision within the time limits set out in that section. An application may only be made to the Tribunal in respect of the decision made under s 54. Section 55(3) is predicated upon an assumption that a decision was made on the request but that a period of 30 days has elapsed since the day on which an agency received an application for review under s 54 of the FOI Act. Provided the application is made in a reasonable time, a person may apply to the Tribunal for review of the decision without waiting for a decision under s 54.
What are the Tribunal’s powers when it has jurisdiction?
The starting point in answering this question is s 25(4) of the AAT Act, to which I have already referred at [20] above. It is clear from this provision that the Tribunal’s power is dependent upon there being a decision. It does not give the Tribunal power to make a decision where a decision has not been made (or, as I will discuss later, deemed to have been made) and does not authorise it to direct a decision-maker to make one where none has previously been made. This follows not only from s 25(4) but also from the more general principle that the Tribunal is not a primary administrator.[16] As it is not a primary administrator, “… no relief before the Tribunal could have been obtained …” in the absence of a decision[17] whether actual or, when provided for by s 25(5) of the AAT Act or a provision such as s 56(1) of the FOI Act, as deemed to have been made.
[16] Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175 per Brennan J
[17] Commonwealth v Ford (1986) 9 ALD 433; 65 ALR 323 at 438; 329 per Wilcox J
Regard must always be had to the enactment providing that an application may be made to the Tribunal for it may add to, exclude or modify the operation of ss 27, 29, 32, 33, 35, 41(1), 43(1) and 43(2). That is to say, the enactment may add to, exclude or modify the operation of those provisions of the AAT Act relating to the persons who may apply for review of a decision, the manner in which an application is made, representation before the Tribunal, the procedure of the Tribunal, the operation or implementation of a decision subject to an application for review, the powers of the Tribunal for the purpose of reviewing a decision and the Tribunal’s obligation to give reasons.
In none of these provisions of the AAT Act is there to be found a power given to the Tribunal to direct a person to make a decision. They are all predicated on an assumption that the Tribunal has power to review a decision. It may be that the decision has actually been made or that the decision is deemed to have been made when an enactment provides for an application to be made to the Tribunal for review of a decision and for a time limit within which such a decision must be made.[18] When reviewing a decision, the Tribunal “shall make a decision”.[19] The decision that it makes must be one of three. The first two are either to affirm or vary the decision under review.[20] The third is to set aside the decision under review and either to make another decision in substitution for that decision or to remit the matter for reconsideration in accordance with any directions or recommendations it makes.[21] If the Tribunal takes the third course, the decision-maker must make a decision in accordance with those directions and recommendations.[22]
[18] AAT Act, s 25(5)
[19] AAT Act, s 43(1)
[20] AAT Act, ss 43(1)(a) and (b)
[21] AAT Act, s 43(1)(c)
[22] Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175 per Brennan J and see also Collector of Customs v LNC (Wholesale) Pty Ltd (1989) 19 ALD 341 at 346 per Davies J
It is also open to the Tribunal to remit a matter to the decision-maker at any stage of a proceeding but before it has made a decision under s 43. That is provided for in s 42D which provides that:
“At any stage of a proceeding for review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.”[23]
Again, the power of the Tribunal is predicated on there already being a proceeding for review of a decision. It does not authorise the Tribunal to make a decision at first instance or to direct a decision-maker to do so.
[23] AAT Act, s 42D(1)
Regard must also be had to the particular enactment providing for an application to be made to the Tribunal. In this case, it is the FOI Act. Section 58 sets out the Tribunal’s powers “in proceedings under this Part” being Part VI of the Act. Part VI is headed “Review of decisions” and, as I have explained above, assumes throughout that a decision has been made on the request by the agency or Minister or has, for the purposes of an application to the Tribunal, been deemed to have been made. I have referred to sections such as ss 55 and 56. Section 55(5) gives the Tribunal power to require an agency or Minister to conduct further searches for a document but only in the context of making “… a decision on a review of a decision refusing to grant access to a document on a ground mentioned in s 24A …” of the FOI Act.
There is one section that gives the Tribunal power when an agency or Minister has not finally dealt with a request. That is found in s 56(6) which provides that:
“Before dealing further with an application made by virtue of this section, the Tribunal may, on the application of the agency or Minister concerned, allow further time to the agency or Minister to deal with the request.”
This provision dovetails in with s 56(5) which provides for the situation in which “an application has been made to the Tribunal by virtue of this section [56] but before the Tribunal has finally dealt with the application …” and the agency or Minister makes a decision in relation to the request that is, in effect, less than everything that has been requested. In those circumstances, the Tribunal may treat the proceedings as extending to a review of that decision in accordance with Part VI. Taken together, the two sections mean that the Tribunal may give an agency or Minister more time to “deal with the request” but only where an application has been made to it because the agency or Minister had made an earlier decision or was deemed to have made a decision so that an application could be made.[24] Section 56(5) does not authorise the Tribunal to direct an agency or Minister to make a decision. It permits it only to facilitate the making of a decision should the agency or Minister wish to do so. Such further decisions are not infrequent and assist in narrowing the documents that are truly in issue between the parties.
[24] Section 56(5) should be read with s 26(1)(b) of the AAT Act, which provides for a decision to be altered after an application has been made to the Tribunal if the parties to the proceeding and the Tribunal consent. As s 56(5) of the FOI Act provides only that the Tribunal may treat the proceedings as “extending to a review of that decision” made under it, there is some doubt whether it can be read as an enactment of the type referred to in s 26(1)(a) of the AAT Act i.e. as an enactment that “expressly permits the decision to be altered”. As Beazley J said in Cashman and Partners v Secretary, Department of Human Services and Health [1995] FCA 1730; (1995) 61 FCR 301at 306:
“22. Section 56(5) does not have the effect of substituting one decision for another for the purposes of review. It merely permits the Tribunal to extend its determination to a later decision, although, in a given case, it may be that only the later decision is subject of consideration on the review application.”
Does the Tribunal have power to direct the Attorney-General and Justice Minister to make decisions?
It is apparent from what I understand to be the Tribunal’s powers that I do not regard myself as having any power to direct the Attorney-General or the Justice Minister to make decisions on the requests that Mrs Bienstein has made to them. My powers are limited to those circumstances in which they have either already made a decision or are deemed to have done so for the purpose of permitting Mrs Bienstein to make an application. In this case, it is the latter situation that prevails as Gray J recognised in his judgment.[25] That is to say, the effect of s 56(1) is that the Attorney-General and the Justice Minister have, for the purpose of enabling Mrs Bienstein to make an application to the Tribunal, been deemed to have made a decision refusing to grant access to the documents she has requested. Mrs Bienstein has made the application and, in view of s 56(1), properly done so.
The duties of the Attorney-General and the Justice Minister when their decisions are deemed to have been made
[25] [2007] FCA 1174; (2007) 96 ALD 639 at [41]; 653 and see [7 ] of these reasons above
Section 37 of the AAT Act sets out a number of provisions relating to the lodgement of documents with the Tribunal. Of relevance in this case is the general provision found in s 37(1):
“Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:
(a)a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b)every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.”
Clearly, s 37(1) imposes a duty on the “person who has made a decision that is the subject of an application for a review by the Tribunal”. In this case, there is no “person who has made a decision” as s 56(1) of the FOI Act has deemed a decision to have been made. Is s 37(1) still applicable? The word “deem” has various meanings but only one is relevant:
“… 5 … Believe, consider, judge or count to be or to be; believe etc. that, (a person or thing) to do, to have done. …”[26]
Applied to s 56(1), it means that the principal officer of the agency or the Minister is, for the purposes of enabling an application to be made to the Tribunal under s 55, considered as having made a decision. Clearly, for the purpose of an application to the Tribunal, there is taken to be no difference between a decision actually made and a decision considered to have been made. As Beazley J said in Cashman and Partners v Secretary, Department of Human Services and Health:[27]
“… An applicant is in no different position in the case of a deemed refusal than in the case of a considered refusal. In each case, the applicant is not granted access to documents. In each case, the applicant has the right to apply to the Tribunal for review of the decision although the relevant factors on review will, of course, be different.…”.[28]
[26] Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press
[27] [1995] FCA 1730; (1995) 61 FCR 301
[28] [1995] FCA 1730; (1995) 61 FCR 301 at [21]; 306. It is difficult to see how the “relevant factors will … be different” on review. Whether a decision has been made to refuse access or a decision is deemed to have been made to the same effect, it can only be supported on a ground found in the FOI Act and, more particularly, in either Part III or Part IV of that legislation.
Once an application is made to the Tribunal for review of a decision that is deemed under s 56(1) to have been made, the duty specified in s 37(1) is imposed. The duty is imposed on the principal officer. That is so because the principal officer is deemed, and so considered, to have made the decision, when the request is made to an agency. For the reasons that I gave earlier, the principal officer’s decision is made on behalf of the agency.[29] The duty under s 37(1) is, however, imposed on the principal officer rather than the agency. When the request is made to a Minister, it is the Minister who is considered to have made the decision. They are the persons upon whom the duty imposed by s 37(1) of the AAT Act falls.
[29] See FOI Act, s 23 and [12]-[19] above
For the purposes of this case, this means that, as soon as Mrs Bienstein lodged her application, s 37(1) imposed a duty on the Attorney-General and Justice Minister to lodge a statement of reasons and the documents in their possession or under their control and that are relevant to the review. I understand from Mr Bennett’s submissions that they do not seek to avoid this duty and would have complied but for Mrs Bienstein’s submission that they must make decisions. I have extended the time within which they must do so to 1 February 2008 as, in view of the time of year, that seems a fair amount of time and is no greater than that allowed by s 37(1) of the AAT Act had the matter proceeded in the normal way.
Is the Tribunal required to keep a record of its proceedings?
Mrs Bienstein also submitted that the Tribunal was obliged to keep a record of all its proceedings, including directions hearings held by telephone. By a “record”, I understood Mrs Bienstein to mean a recording or transcript taken from such a recording and of the sort made and kept by Auscript according to the Tribunal’s contract with it. She was unable to point to any provision in the AAT Act, the FOI Act or any other legislation to support her submission.
At common law, a court of record was obliged to keep a record of its proceedings as well as having the power to fine or imprison.[30] If a judgment was thought to be wrong, a writ of error could be brought to correct it.[31] There is some debate about what is meant by the “record” but perhaps the authorities reveal not so much a debate as a movement towards extending its meaning as courts record more of their proceedings.
[30] Black’s Law Dictionary, 5th edition, 1979, West Publishing Co
[31] DJL v Central Authority(2000) 201 CLR 226; 170 ALR 659; 74 ALJR 706 at [34] per Gleeson CJ, Gaudron, McHugh, Gummow And Hayne JJ
In 1957, Lord Denning said in R v Northumberland Compensation Appeal Tribuna; ex parte Shaw:[32]
“What, then, is the record? It has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings: see Blackstone’s Commentaries Vol III, p 2 … It appears that the Court of King’s Bench always insisted that the record should contain, or recite, the document or information which initiated the proceedings and that gave the tribunal its jurisdiction and also the document which contained their adjudication … but it was never necessary to set out the reasons … I think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication, but not the evidence, nor the reasons, unless the tribunal chose to incorporate them.”[33]
[32] [1952] 1 All ER 122; KB 338
[33] [1952] 1 All ER 122; KB 338 at 130-131; 351-352
By 1981, Griffiths LJ and May J had decided that any reasons for judgment, whether written or a transcript of an oral judgment, became part of the record together with “… other documents … where if read with the decision they will show that the tribunal has erred in law.”[34] In New Zealand, Eichelbaum CJ has held that the record is wide enough to include evidence given at the substantive hearings including exhibits. A court file may also contain documents such as correspondence. Are documents such as those incorporated in the record of proceedings. The Supreme Court of New Zealand considered that matter in Mafar and Prieur v Television New Zealand Ltd[35] and said:
| “There is a difference between the entries in the books and registers and documents maintained by a court which are formal steps in proceedings and other material received by it during the course of the proceedings and held on the court file. Such records are conclusive as to essential court processes and the outcome of the proceedings. They constitute the formal record. The file will also include documents, exhibits (which may remain the property of the parties), and other material which constitute an archive generated by the proceedings, but which are not the formal record of the court. It was this distinction that caused Simon France J in the present case to note that the video tape of entry of pleas was not the ‘true record’.”[36] |
[34] R v Crown Court at Knightsbridge ex parte International Sporting Club (London) Ltd [1981] 3 All ER 417 at 422 but see 422-424 generally
[35] [2006] NZSC 33
[36] [2006] NZSC 33 at 21 (footnotes omitted)
This, in broad terms, is the situation in relation to a court of record. Some tribunals are established by legislation as being a court of record but, in view of the separation of powers under the Commonwealth Constitution, it was not possible to establish the Tribunal as a court in any sense and Parliament did not do so. In view of that, I must look elsewhere for the Tribunal’s duties and obligations. In doing so, I have looked at various legislation.
I have begun with the AAT Act. Section 35(1) of that Act provides that:
“Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.”
A “proceeding” is defined in s 3(1) of the AAT Act in so far as it is relevant in this way:
“proceeding, in relation to the Tribunal, includes:
(a)an application to the Tribunal for review of a decision; and
(b)-(g)…
(h)an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application …”.
Section 29(7) is clearly an incidental application of this sort. It gives the Tribunal power to extend the time within which a person may make an application to the Tribunal “upon [receiving an] application in writing by a person”. Such an application is an application in connection with a proposed application to the Tribunal for review of a decision. It is a “proceeding” within the meaning of s 3(1)(h) of the AAT Act. Although not expressed in terms of an “application” but in terms of a “request”, ss 37(1C) and 41(2) may be equally be thought to provide for incidental applications. They are also made in connection with an application; the first for an order shortening the time within which documents must be lodged under s 37(1) and the second for an order staying or otherwise affecting the operation or implementation of the decision of which review is sought.
Unlike the three provisions to which I have just referred, many of the Tribunal’s powers may be exercised without its first receiving a request or application to do so. It may, for example, give directions under s 33 of the AAT Act whether the parties have asked for directions or not. It may refuse a request to issue a summons under s 40(1C). In exercising its powers, there is no question that the Tribunal must observe the rules of procedural fairness.[37] When it hears submissions from the parties and possibly takes evidence, is it also engaged in a “proceeding” for the purposes of s 35(1) so that it must hold its deliberations in public? The definition of “proceeding” in s 3(1) is drafted in the form that a “proceeding … includes” those that it then goes on to list. I have previously considered the interpretation of that form of definition and the related expressions “means”, “includes” and “means and includes” in Executors of the Estate of the late Miss Santha Thevy Subrahmanyam and Commissioner of Taxation[38] and adopt my previous views. The choice of the word “includes” leads me to conclude that the definition of “proceeding” must be read as being capable of including what I will describe for the moment as steps or actions other than those specifically named in the definition.
[37] See, for example, one of the earliest statements of this obligation in Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383 at 342; 402 per Smithers, Deane and Fisher JJ
[38] [2002] ATC 2303; (2002) 51 ATR 1173; [2002] AATA 1298
In that regard, I have had regard to the judgment of Smart J in Blake v Norris[39] where his Honour considered the meaning of the word “proceeding” as it is used in s 5 of the Jurisdiction of Court (Cross-Vesting) Act 1987 (NSW). He referred to various dictionary meanings and text books:
“ … It is apparent from the meaning given in the Oxford Dictionary that
‘proceedings’ can mean either the action itself or a step taken in suchaction. In Stroud's Judicial Dictionary, 5th ed, vol 4 at 2029-2035, some fifty-five instances are given of the use of the words “proceeding” or “proceedings” in legislation, rules of court or documents having legal significance. The meaning depends on the context in which the word is used. In some cases it is equivalent to ‘an action’ whereas in others it may mean a step in an action. Sometimes it may include a counter claim. The Oxford Companion To Law (1980) by Professor Walker states (at 1002-1003) that ‘proceedings’ is sometimes used as including, or meanings, an action or prosecution, and sometimes as meaning a step in an action. The word ‘proceeding’ is capable of such a variety of meaning that dictionary definitions as to its ordinary or natural meaning are not of much use. They tend to highlight the number of meanings which the word can bear.
Any assistance as to its meaning has to be derived from the statutory context and the objects of the legislation in question.”[40]
[39] (1990) 20 NSWLR 300
[40] (1990) 20 NSWLR 300 at 306
Having regard to these principles and to the context and objects of the AAT Act, it seems to me that occasions on which the Tribunal is hearing submissions from the parties and perhaps receiving evidence for the purposes of, for example, a directions hearing under s 33, a request for a stay under s 41(2) or a consideration of whether a hearing should take place in private under s 35(2) are all steps in the matter before the Tribunal. That is, they are all examples of steps that take the Tribunal towards reviewing the merits of the decision that is the subject of the application for review. They are all examples of a “proceeding” and are required to be held in public.[41]
[41] An alternative dispute resolution process under Division 3 of Part IV of the AAT Act needs to be considered separately.
That conclusion might appear inconsistent with s 35A(1), which permits “A person holding a directions hearing and the Tribunal in the hearing of a proceeding …” to allow a person to participate by telephone, closed-circuit television or any other means of communication. Section 35A(1) appears to distinguish between a “directions hearing” and a “proceeding”. I think that it does so but only for a limited purpose and that purpose does not detract from the more general proposition that a directions hearing is a proceeding for the purposes of s 3(1). The limited purpose arises from the fact that s 35A(1) is framed in terms of the power that is given to those who may hold or conduct the relevant matter. In the case of a directions hearing, s 33(2) specifies the person who may give directions. In all other cases, the powers are given to the Tribunal. On the view that I have taken, those other cases include not merely the substantive hearing reviewing the merits of the decision but also matters relating to stays and private hearings. These are matters that are important steps in the processes leading to resolution of an application and that can affect the perception of the way in which the Tribunal is undertaking its task. Principles of open justice require to be held in public and it seems to me that s 35(1) requires it.
It follows that a directions hearing of the sort that I conducted in this matter and that has led to these reasons was a public hearing. It was held over the telephone but, had there been any indication that a member of the public wanted to attend, the conference telephone call could have been made from a conference room or a hearing room or the person permitted to sit in chambers during the call. Such arrangements have been made in other cases and the parties in those cases have been made aware of the arrangements.
The fact that a hearing of a proceeding must be held in public does not take me any further in deciding whether I should have kept a record of the proceedings. I kept some notes of it and my Associate kept notes that are not illegible. To do so accords with good administrative practice. As a statutory office holder, I am not subject to the APS Values set out in the Public Service Act 1999 (Public Service Act) and the subject of written directions given by the Australian Public Service Commissioner.[42] Therefore, I am not subject to the obligation to maintain records as required by them.[43] The Registrar of the Tribunal is the agency head for the purposes of the Public Service Act and he and his staff, who are APS employees. They maintain a computerised case management system and files relating to applications. Their obligations and powers to do so do not extend to areas that are properly those of the Tribunal, which comprises its members,[44] in carrying out its functions under the AAT Act and, in this case, the FOI Act.
[42] Public Service Act, s 11(1)
[43] See Re McKinnon and Secretary, Department of Prime Minister and Cabinet [2007] AATA 1969 at [116]-[127]
[44] AAT Act, s 5
In Re Wang and Australian Federal Police,[45] I considered some of the relevant aspects in the context of a submission by Mr Wang that I should order transcript. Auscript had already recorded the proceedings. In light of the Tribunal’s contract with Auscript, I would not have been able to photocopy the Tribunal’s copy of the transcript had I ordered it but I would have been able to permit him to read it. Mr Wang made his submission on the grounds that a transcript was necessary to enable him to understand the arguments and to make submissions in the future referring to the proceedings, that he could not afford to purchase it himself and that it is in the public interest to order a transcript to ensure that both parties have received a fair outcome. Auscript had attended the hearing. My reasons for refusing a transcript were:
“19. I appreciate that the cost of thetranscriptcould well be prohibitive for Mr Wang. It is not, however, the Tribunal’s practice to ordertranscriptfor the parties or for any one of them. If it did not have that practice, the cost oftranscriptwould become prohibitive for the Tribunal. Cost considerations are the basis for my own practice to ordertranscriptonly very occasionally. I had no need for atranscriptin this case and I do not consider that there are any exceptional circumstances that would justify my committing the Tribunal to fund its purchase.
20. I do not accept that, without the transcriptMr Wang will be unable to understand the comments made in the proceedings or be unable to make appropriate submissions should he choose to lodge an appeal to the Federal Court. I have given my reasons in writing and they are intended to cover the main points raised by the parties at the hearing. If I have made an error of law in them, it will be apparent from them. If I made any error during the course of the proceedings, the Federal Court may decide to direct that thetranscript be obtained but that is a decision to be made at a later time. The Tribunal’s providing, without charge, an interpreter to Mr Wang and Ms Xiao during the course of the hearing ensures that they are not, to use his words, ‘punished for their deficiencies in the English language’. Taking all of the matters that Mr Wang has raised, I do not consider that they justify my making an exception to the Tribunal’s normal practice in this case. Therefore, I confirm my earlier decision not to ordertranscript in this case.”[46]
[45] (2005) 88 ALD 765; [2005] AATA 908
[46] (2005) 88 ALD 765; [2005] AATA 908 at 770; [19]-[20], footnote omitted
These are relevant matters to take into account in deciding whether to order the proceedings to be recorded at all. The matters that were to be dealt with at the directions hearing were, when taken against the range of matters that the Tribunal considers, likely to be straightforward. The matters were likely to be decided at the directions hearing and there was unlikely to be any need for Mrs Bienstein or Mr Bennett to have regard to a transcript or a recording of the proceedings for the purpose of preparing further submissions. If either party wanted to seek judicial review of my reasons, they were likely to ask for written reasons. In view of the nature of the issues that were to be dealt with, I expected to be able to give a fair account in those reasons of the submissions that were made without the benefit of transcript. Considerations of procedural fairness did not require that I order that the proceedings be recorded. Taking all of these matters into account, I did not consider it appropriate to order that the proceedings be recorded.
For the reasons I have given, I have decided that:
(1)I have no power to direct the Attorney-General or the Justice Minister to make a decision;
(2)the Tribunal has jurisdiction to review the decisions deemed to have been made by the Attorney-General and the Justice Minister i.e. decisions to refuse Mrs Bienstein’s request for access to documents;
(3)the Attorney-General and Justice Minister have a duty to comply with s 37(1) of the AAT Act and, under that section, I extend the time within which they must do so to 1 February 2008; and
(4)I am under no obligation to order that the directions hearing be recorded.
I certify that the fifty one preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Jayne Haydon Associate
Date of Hearing 26 November 2007
Date of Decision 4 January 2008
Representative for the Applicant unrepresented
Representative for the Respondents Mr M Bennett
Director, FOI Section
Attorney-General’s Department
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