Centrelink v Dykstra - [2002] FCA 1442

FEDERAL COURT OF AUSTRALIA
Centrelink v Dykstra [2002] FCA 1442
FREEDOM OF INFORMATION – review of decision of Administrative Appeals Tribunal – exempt documents – whether Administrative Appeals Tribunal erred in finding release of documents would not endanger the life or physical safety of any person.
Administrative Appeals Tribunal Act 1975 (Cth), s 44
Freedom of Information Act 1982 (Cth), ss 37(1)(c), 11(1), 61(1)
Social Security Act 1991 (Cth)
Attorney-General’s Department v Cockroft (1986) 64 ALR 97 - discussed
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FCR 409 – referred to
Bushell v Repatriation Commission (1992) 175 CLR 408 – referred to
Staed v Minister for Immigration & Ethnic Affairs (1981) 37 ALR 620 – referred to
Australian Trade Commission v Underwood Exports Pty Ltd [1997] FCA 1060 – referred to
Sullivan v Department of Transport (1978) 20 ALR 323 – referred to
Waldron v Comcare Australia (1995) 37 ALD 471 – referred to
Repatriation Commission v Smith (1987) 15 FCR 327 – referred to
Nikolovski v Telstra Corporation Ltd [2002] FCA 846 – referred to
CENTRELINK v ROBERT DYKSTRA
S.203 of 2002
MANSFIELD J
28 NOVEMBER 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S.203 OF 2002

BETWEEN:

CENTRELINK
APPLICANT

AND:

ROBERT DYKSTRA
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

28 NOVEMBER 2002

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The application is granted.
2.The decision of the Administrative Appeals Tribunal given on 2 August 2002 is set aside.
3.The application of the respondent to the Administrative Appeals Tribunal to review a decision of a review officer of the applicant made on or about 27 September 2000 is remitted to the Administrative Appeals Tribunal for rehearing or for further hearing in accordance with the reasons for decision given on 28 November 2002.
4.The operation of Order 3 is stayed until 19 December 2002.
5.The three documents the subject of the application by the respondent referred to in Order 3 not be released to the respondent pending the rehearing or further hearing of that application by the Administrative Appeals Tribunal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S.203 OF 2002

BETWEEN:

CENTRELINK
APPLICANT

AND:

ROBERT DYKSTRA
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

28 NOVEMBER 2002

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
INTRODUCTION

This is an application by way of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The appeal is from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 2 August 2002. The Tribunal’s decision concerns s 37(1)(c) of the Freedom of Information Act 1982 (Cth) (the FOI Act). The Tribunal set aside a decision of a delegate of the respondent made on 29 August 2002 and substituted a decision that certain documents are not exempt pursuant to s 37(1)(c) of the FOI Act, so that the respondent may have access to them. The respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FCA 1442
Decision Date: 28 NOVEMBER 2002

CaseChat Overview and Summary

The case of Centrelink v Dykstra involved a dispute over access to documents under the Freedom of Information (FOI) Act. The applicant, Centrelink, sought to withhold certain documents from the respondent, Dykstra, based on the exemption provided by section 37(1)(c) of the FOI Act, which pertains to documents that could endanger the life or physical safety of any person. Dykstra challenged this decision before the Administrative Appeals Tribunal (AAT), arguing that the exemption was not justified.

The central legal issue was whether the Tribunal had correctly assessed the risk posed by granting Dykstra access to the documents under the FOI Act. The Tribunal had to determine if the exemption was warranted given Dykstra's history of inappropriate and offensive communications, and whether his mental health issues and past convictions for assault provided sufficient grounds for withholding the documents. The Tribunal focused on Dykstra's behaviour and communications, noting his inappropriate and intemperate language, but found no evidence of physical harm caused by him.

The Tribunal set aside the initial decision to withhold the documents, finding that Dykstra's past behaviour did not justify the exemption. However, the Court of Appeal found that the Tribunal had misapprehended the decision under review, focusing on an earlier decision rather than the review officer's decision dated around 27 September 2000, which contained more extensive material. The Court found that the Tribunal had failed to consider this additional evidence, leading to an incorrect conclusion. Consequently, the Court set aside the Tribunal's decision and remitted the case back to the Tribunal for rehearing, staying the operation of this order until a specified date to allow for the rehearing.

The final orders of the Court were to grant the application, set aside the Tribunal's decision, remit the application to the Tribunal for rehearing, stay the operation of the remittal until a specified date, and ensure that the documents in question were not released to Dykstra pending the rehearing.

Orders

Orders of the court

1. The application is granted.

2. The decision of the Administrative Appeals Tribunal given on 2 August 2002 is set aside.

3. The application of the respondent to the Administrative Appeals Tribunal to review a decision of a review officer of the applicant made on or about 27 September 2000 is remitted to the Administrative Appeals Tribunal for rehearing or for further hearing in accordance with the reasons for decision given on 28 November 2002.

4. The operation of Order 3 is stayed until 19 December 2002.

5. The three documents the subject of the application by the respondent referred to in Order 3 not be released to the respondent pending the rehearing or further hearing of that application by the Administrative Appeals Tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

The introductory words to s 11(1) of the FOI Act, that the right of access for which it provides is “subject to this Act” can be seen to be qualified in a number of ways by other provisions of the FOI Act: see e.g. ss 12, 13, 24, 24A, and ss 32-47A in Part IV of the Act. Before the Tribunal, and on this application, the applicant has sought to uphold the decision only by reference to s 37(1)(c) of the FOI Act. It relevantly provides:“A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:(a)…(b)…(c)endanger the life or physical safety of any person.”THE TRIBUNAL’S DECISION As noted, in this matter the applicant seeks to justify the exemption of the subject documents only upon the ground specified in s 37(1)(c) of the Act. The onus lay upon the applicant to show that the decision to withhold access to the subject documents was justified: s 61(1) of the FOI Act. The Tribunal, after noting the legislative context in which the decision was to be made, and after referring to the decision of the Full Court in Attorney-General’s Department v Cockroft (1986) 64 ALR 97 (Bowen CJ, Sheppard and Beaumont JJ), referred to the evidence at some length, including noting that the respondent communicates often inappropriately and offensively, using insulting and abusive language in his criticism of others and by making derogatory criticisms relating to what he perceives to be their background and heritage. So much was apparent from the lengthy letter which the respondent submitted to the Tribunal in support of his application. It was quoted at length by the Tribunal. The Tribunal treated the respondent’s language and behaviour, “which at best can be described as intemperate and inappropriate” as a consequence of his mental health. It had regard to his language and behaviour in assessing any danger that may be caused to others by him being granted access to documents under the FOI Act. The Tribunal described the respondent’s behaviour through his correspondence and at directions hearings in the following way:“He exhibits a pre-occupation with Mr Sladden and Mr Gates. Mr Dykstra exhibits a very high level of frustration not only with them but with all authority figures. He warns them not to stand in front of him deliberately for, if they did, he would have to feel threatened or intimidated. In a later part of the letter, he questions how their standing in front of him could be seen as his threatening them. Mr Dykstra contemplates what would happen were he to hit Mr Sladden. He states that he could do that any number of times. For all that, it does not seem to me to be a threat to actually hit Mr Sladden. He is considering on paper the consequences of such an action and how those consequences would achieve his wider purposes.Despite the high level of frustration that Mr Dykstra has shown both in his correspondence with the Tribunal and in his oral communications whether at directions hearings or otherwise, he has never attempted to cause any person any physical harm. He has never made a move towards Mr Underwood or towards any member or staff member of the Tribunal. On one occasion, he punched a pillar in the Tribunal and damaged it but at no time has he attempted to harm a person while on Tribunal premises.”It noted the evidence that the respondent has appeared in Court on some 18 occasions between 1970 and 1993, and has a number of convictions including four assault convictions between 1977 and 1993. There was no evidence of the circumstances in which those offences occurred, or whether the respondent was receiving any form of treatment at the time he committed them. The Tribunal noted there was no suggestion of the respondent having been convicted of any offences since 1993.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

The Tribunal ordered that the decision dated 29 August 2000 be set aside, and that the respondent may have access to the subject documents.CONSIDERATION The application by way of appeal is restricted to matters of law: s 44(1) of the Administrative Appeals Tribunal Act. It was claimed that the Tribunal erred in failing to have regard to the material evidence referred to in the decision of the review officer given apparently on 27 September 2000. The evidence is that referred to in that letter and set out in [4] above. In my judgment, that ground of appeal is made out. The Tribunal said it was reviewing a decision made on 29 August 2000. It set aside a decision made on 29 August 2000. That was the decision initially made by the delegate of the applicant. It was not the decision which the respondent sought to have reviewed, namely the decision of the review officer made on or about 27 September 2000, as indicated in [5] above. The review officer’s decision was to the same effect, but it was based on more extensive material than the initial decision of 29 August 2000. The misapprehension of the Tribunal as to the decision under review in this instance has led the Tribunal to fail to consider that more extensive material. The Tribunal identified the evidence in the case as being its impression of the respondent from his attendances at preliminary hearings before the Tribunal (he did not attend the hearing before the Tribunal) and the detailed letter which the respondent submitted to the Tribunal. Those communications indicated to the Tribunal that the respondent “exhibits a pre-occupation with Mr Sladden and Mr Gates” and a high level of frustration with them. Mr Gates is an officer of Health Services Australia. Despite the respondent’s letter contemplating what would happen were he to hit Mr Sladden, the Tribunal regarded that not as a threat to hit Mr Sladden but the respondent “considering on paper the consequences of such an action”. Despite his unsatisfactory language and behaviour, the Tribunal noted that the respondent had not at the Tribunal made any attempt to harm any person although he had on one occasion punched a pillar. The further evidence the Tribunal referred to was the information about the respondent’s earlier convictions for assault (the last of which was in 1993) and the contents of the subject documents. The Tribunal noted the views in the subject documents were provided some two years before its decision, and no current information was provided as to whether those views were still held with the passage of time. Thus the future actions of the respondent if given access to the subject documents “remains in the realms of speculation”. The Tribunal, apparently by misapprehending the decision under review, did not refer at all to the information contained in the review officer’s decision as conveyed in his letter of about 27 September 2000. The review officer had additional information obtained from Mr Gates about communications with the respondent when the respondent handed to Health Services Australia a letter dated 21 July 2000. The passage in the respondent’s letter of 21 July 2000 to Health Services Australia to which the applicant particularly refers appears to be in the following terms:“White boy don’t ever deliberately stand in front of me (indecipherable) me (indecipherable) it is you who was there you filthy little inbred.”

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.203 OF 2002

BETWEEN:	CENTRELINK APPLICANT
AND:	ROBERT DYKSTRA RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	28 NOVEMBER 2002
WHERE MADE:	ADELAIDE

JUDGE:	MANSFIELD J
DATE:	28 NOVEMBER 2002
PLACE:	ADELAIDE