Bienstein v Attorney General

In the case of Bienstein v Attorney General, Ms Bienstein sought to challenge the failure of the Attorney-General and the Minister for Home Affairs to respond to her request for access to certain documents under the Freedom of Information Act 1982 (Cth). The matter was heard in the Federal Court of Australia, where the primary judge dismissed the application and the applicant now appealed against that decision. The central issue before the court was whether the Attorney-General and the Minister for Home Affairs were under a legal obligation to make a decision on Ms Bienstein's request within a specified period.

The court considered the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) and the Freedom of Information Act 1982 (Cth) in determining the legal obligations of the Attorney-General and the Minister for Home Affairs. Section 42D of the AAT Act provided that if a decision was remitted to the person who made it, they could reconsider the decision and either affirm, vary or set it aside and make a new decision. However, there was no positive provision in the FOI Act that imposed a specific duty to make a decision within a 30 day period. The court found that the absence of such a provision tended to suggest that there was no enforceable right to have a decision made. The orders of the Court did not purport to give rise to any such obligation.

The court dismissed the appeal and ordered that the applicant pay the respondents' costs of the appeal. The court found that the orders of the Court did not impose any obligation on the Attorney-General and the Minister for Home Affairs to make a decision on Ms Bienstein's request within a specified period. Instead, the orders left the cases in the hands of the Tribunal, rather than in the hands of the Attorney-General and the Minister. The applicant was also ordered to pay the respondents' costs of the proceeding.