CKI Transmission Finance (Australia) Pty Ltd and Australian Taxation Office
[2011] AATA 654
•21 September 2011
FREEDOM OF INFORMATION – application for review – whether an application may be made by more than one person in respect of a decision made under s 54 – whether an application under s 54 may be made by more than one person – whether a request for access may be made by more than one person – one person only may make a request, application under s 54 or application to Tribunal – an application fee is payable in respect of each application.
Blue Metals Industries Pty Ltd v Dilley [1969] UKPCHCA 2; (1969) 117 CLR 651; [1970] AC 827
Elazac Pty Ltd v Commissioner of Patents [1994] FCA 1315; (1994) 125 ALR 663
Hanlon v Law Society [1981] AC 124
Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; (2008) 168 FCR 566; 249 ALR 87; 103 ALD 238; [2008] ATC 20-037; 73 ATR 276; 48 AAR 500
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490
Re Jackson and Minister for Immigration and Citizenship [2011] AATA 60; (2011) 54 AAR 149
Re Kennedy and Secretary, Department of Education and Workplace Relations [2011] AATA 102; (2011) 54 AAR 203
Re LJXW and Australian Federal Police [2011] AATA 187; (2011) 120 ALD 516
Acts Interpretation Act 1899 (NSW) s 21
Acts Interpretation Act 1901 ss 22(1), 23(b)
Administrative Appeals Tribunal Act 1975 ss 25(1), (3), (4) and (6), 29(1), (2) and (7), 27, 29, 29(1)(a), (c) and (d), 29A(1) and (2), 32, 33, 35, 70(1) and (2)(a)(i)
Child Support (Registration and Collection) Act 1988 s 110X
Freedom of Information Act 1982 ss 3(1), (2), (3) and (4), 3A, 4(1) and (8), 11(1) and (2), 15(1), (2)(b) and (e), (3) and (5)(b), 15A(1) and (2), 17, 18(1), 22, 25, 26, 33, 33A, 34, 35, 36, 38, 45, 47A, 54, 55(1), (2), (3) and (4), 58(2), 59(1) and (2A), 59A(1) and (2A)
Freedom of Information Amendment (Reform) Act 2010 s 2(1), Schedules 1, 3 and 4
Administrative Appeals Tribunal Regulations 1982 rr 19(1)(a)
Freedom of Information (Fees and Charges) Regulations 1982 rr 5, 5(b), 6(3)(a) and (b)
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd
DECISION AND REASONS FOR DECISION [2011] AATA 654
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2011/3989
GENERAL ADMINISTRATIVE DIVISION )
Re:CKI TRANSMISSION FINANCE (AUSTRALIA) PTY LTD
Applicant
Re:HEI TRANSMISSION FINANCE (AUSTRALIA) PTY LTD
Applicant
And:AUSTRALIAN TAXATION OFFICE
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 21 September 2011
Decision:The application lodged on 13 September 2011 on behalf of CKI Transmission Finance (Australia) Pty Ltd and HEI Transmission Finance (Australia) Pty Ltd has not been properly made.
S A Forgie
Deputy President
REASONS FOR DECISION
Together, CKI Transmission Finance (Australia) Pty Ltd (CKITFA) and HEI Transmission Finance (Australia) Pty Ltd (HETFA) lodged an application for review of a decision dated 15 August 2011 by an officer of the Australian Taxation Office (ATO). The officer had made that decision after conducting an internal review of a decision made by another ATO officer on two separate requests made by CKITFA and HETFA on 14 November 2008 under the Freedom of Information Act 1982 (FOI Act). The issue I must decide is whether CKITFA and HETFA may make a single application for review of the decision or whether they must each make a separate application and each pay an application fee. I have decided that they must take the latter course and that the application lodged on 13 September 2011 has not been properly lodged.
BACKGROUND
I asked the solicitors for CKITFA and HETFA for copies of the initial requests for access made to the ATO by their clients, the ATO’s decision and their subsequent application for internal review of that decision. I already had a copy of the ATO’s internal review decision as it accompanied the application made to this Tribunal. I also asked for any submissions that they wished to make to support their clients’ making a single application to the Tribunal and accompanying it with the application fee applying to a single application. Their submission was that:
“… as the Application relates to a single decision, which was issued to both CKITFA and HETFA by … the Australian Taxation Office … on 15 August 2011, it is appropriate only one application fee be paid.”[1]
I did not ask the ATO for any submissions for the matter is essentially a matter between the Tribunal and CKITFA and HETFA at this stage. As I have copies of the decisions made by the ATO, I did not think that I needed to trouble it at this preliminary stage.
[1] Letter to the Tribunal dated 14 September 2011
On 14 November 2008, a request was sent to the ATO on behalf of CKITFA. It was a request under the FOI Act for access to all documents that related to an audit that office had conducted in respect of the deductibility of certain fees incurred by CKITFA during four years of income. Under cover of the same letter, a request was also sent to the ATO on behalf of HETFA. Again, it was a request made under the FOI Act for access to all documents that related to an audit that office had conducted in respect of the deductibility of certain fees incurred by HEFTA during four years of income. I do not have any indication of when the ATO received that request but that information is of no consequence at this stage. A cheque for $60 was enclosed in the letter together with the two requests. It was described as “… the application fee for both entities”. At the time, the effect of s 15(2)(e) when read with s 4(8) of the FOI Act and rr 5 and 6(3)(a) of the Freedom of Information (Fees and Charges) Regulations 1982 (FOIFC Regulations) was that an application fee of $30 was payable in respect of each request.
On 27 January 2010, an officer of the ATO authorised under s 23 of the FOI Act to make decisions issued a single decision referring to both requests. Although more than a year had passed since the requests had been made, it is apparent from the letter setting out the decision that there had been discussions between the ATO and CKITFA and HETFA and access had already been granted to documents on earlier occasions. The final decision was that 2,427 documents had been released in full, 811 had been released in part and exemption was claimed for 966 documents in their entirety. Reasons were given for the exemptions that had been claimed and deletions made from those documents to which access had been granted in part. The letter concluded with advice on how CKITFA and HETFA could seek review of the decision. That advice was given in terms of their making an application under s 54 and sending an application fee of $40.
On 1 April 2010, the solicitors for CKITFA and HETFA wrote to the ATO requesting review of the decision under s 54. The application was made in a letter and that letter is written in terms of the application being a single application made on behalf of both CKITFA and HETFA. No mention is made of any application fee that was paid. At the time, the effect of the effect of s 54(1) when read with s 4(8) of the FOI Act and rr 5(b) and 6(3)(b) of the FOIFC Regulations was that an application fee of $40 was applicable in respect of an application under subsection 54 (1) of the Act.
On 15 August 2011, an officer of the ATO wrote to the solicitors acting for both CKITFA and HEFTA. After a reference to the FOI Act, the letter began with a reference to CKITFA and HEFTA:
“Re Internal review requests HEI Transmission Finance (Australia) Pty Ltd and CKI Transmission Finance (Australia) Pty Ltd”
The letter continued:
“I refer to your internal review applications dated 1 April 2010 in which you sought a review of the decision made by Ms Dann dated [sic] not to release certain documents to you in response to you[r] applications under the FOI Act. I also refer to the staged release of documents made to you under cover of my letters dated 1 June 2010, 20 July 2010 and 22 February 2011.
I enclose the final tranche of documents in response to your internal review requests and my decision on the review. …”
The letter concluded with advice about rights of review of the decision. It would seem, however, that it was taken from a pro forma letter used when the ATO has consulted third parties under ss 27 and 27A regarding a request for access to their personal information or business affairs information rather than from a pro forma letter used to respond to those making a request for access under the FOI Act. It reads:
“Pursuant to section 55 of the FOI Act, you may apply to the Administrative Appeals Tribunal for a review of this decision to grant access to the document/s relevant to the request contrary to your contention or objection. This review is restricted to the documents and the ground of exemption upon which you were consulted. An application to the Tribunal must be made within 30 days of receipt of this notification. The address of the Tribunal is …. An application fee … should accompany your application.”[2]
[2] The reference to the 30 day time period is consistent with the passage being taken from a pro forma letter used to advise third parties consulted under ss 27 and 27A regarding a request for access to their personal information or business affairs information. Sections 59(1) and 59A(1) provide that those third parties may apply for review of any application to the Tribunal for review of the decision made by the agency or Minister to the effect that the document is not exempt under ss 43 or 41, as the case may be. Sections 59(2A) and 59A(2A) provide that, despite s 29 of the AAT Act, any such application must be made within 30 days of the day on which notice of the decision is given to the relevant person.
Mistakes happen and I have not quoted this paragraph of the letter in order to criticise the ATO or its apparent mistake. My purpose is simply to set the background that has led to CKITFA and HEFTA’s thinking, and their solicitors thinking, that they may lodge one application for review of the ATO’s decision under s 54 of the FOI Act, rather than two, and pay only one application fee, rather than two.
WHEN IS AN APPLICATION FEE IN THE TRIBUNAL PAYABLE?
Section 70(1) and (2)(a)(i) of the Administrative Appeals Tribunal Act 1975 (AAT Act) authorises the Governor-General to make regulations, not inconsistent with the AAT Act, prescribing fees to be payable I respect of applications to the Tribunal. Fees are prescribed under the Administrative Appeals Tribunal Regulations 1982 (Regulations). Subject to certain exceptions that are not relevant, r 19(1)(a) provides that a fee of $777 is payable for lodging an application for review of a decision with the Tribunal. The exceptions and qualifications are not relevant in this case.
WHO MAY APPLY TO THE TRIBUNAL FOR REVIEW OF A DECISION?
As an application fee is imposed for lodgement of “an application for review of a decision”, I have then considered those who may make an application to the Tribunal. That, in turn, has taken me to a consideration of those who may apply to the Tribunal in respect of a decision made under the FOI Act.
The manner of applying to the Tribunal for review of a decision
Putting aside the particular requirements relating only to applications made in respect of certain matters under the Australian Security Intelligence Organisation Act 1979, s 29(1) of the AAT Act sets out criteria with which an application must comply and those with which it may comply. Those with which it must comply are that it be in writing,[3] must contain a statement of reasons for the application[4] and be lodged within the prescribed time.[5] Section 29A provides an additional criterion. That is to the effect that any prescribed fee that is payable must be paid. It follows from the requirement that, subject to s 29A(2), which is currently of no practical relevance:[6]
“… an application to the Tribunal, whether for a review of a decision or otherwise, is not taken to be made unless the prescribed fee (if any) in respect of the application is paid.”
[3] AAT Act, s 29(1)(a)
[4] AAT Act, s 29(1)(c)
[5] AAT Act, s 29(1)(d)
[6] Section 29A(2) provides for the time at which an application will be taken to be lodged with the Tribunal when a fee in respect of that application has been waived under the Regulations. The Regulations no longer provide for waiver.
“Making” an application and “lodging” an application are two separate things. The variation in language used in these provisions and in the extension of time provisions in
s 29(7) of the AAT Act present a number of difficulties. I have raised them in previous cases including Re Jackson and Minister for Immigration and Citizenship[7] and Re Kennedy and Secretary, Department of Education and Workplace Relations.[8] For the moment, I note that CKITFA and HEFTA are well within the prescribed time for both lodging and making applications if they are required to do so separately.
Those who may apply to the Tribunal
[7] [2011] AATA 60; (2011) 54 AAR 149
[8] [2011] AATA 102; (2011) 54 AAR 203
A. The AAT Act
As the Tribunal has been created by statute, it owes its very existence to statute. It must look to statute, as interpreted by the courts, to determine its role, its jurisdiction and its powers. In the first instance, it looks to the AAT Act under which it was established. That is the legislation that establishes the Tribunal and, in broad terms, establishes the framework within which it will operate and the tools it may use within that framework. Some, but not all, of the framework and tools may be adjusted by other enactments. This is permitted by s 25(6) of the AAT Act but adjustment, in the form of exclusion or modification of their operation, is limited to ss 27, 29, 32, 33 and 35. In this way, the framework of the AAT Act can be adjusted in relation to particular matters. It may, for example, be adjusted to ensure that privacy of certain individuals is always maintained, as with matters arising under the Child Support (Registration and Collection) Act 1988,[9] or to limit its discretion as is the case under the FOI Act.[10] In the case of applications made to the Tribunal, the time prescribed by s 29(2) of the AAT Act as the time within which an application may be made to the Tribunal is varied by s 55(4) of the FOI Act. In most cases, the period within which an application may be made to the Tribunal in respect of a decision is 60 days after a notice of a decision under s 54 has been given to an applicant in accordance with s 26 of the FOI Act.
[9] Child Support (Registration and Collection) Act 1988, s 110X
[10] FOI Act, s 58(2)
In keeping with its providing a framework and leaving adjustments to other enactments, the AAT Act does not itself confer power on the Tribunal to review decisions. Instead, it makes provision for other statutes to confer power on the Tribunal to do so. It does this by providing in s 25(1) that:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”
The enactment referred to in s 25(1) must specify the person or persons whose decisions may be reviewed and must specify whether all of the person’s decisions may be reviewed and, if not, the classes of decisions that may be reviewed. The enactment may specify conditions on which a person may apply for review of those decisions. That is the effect of s 25(3). Section 25(4) provides the necessary corollary to ss 25(1) and (3) by providing that the “… Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
In order to identify any enactment of the sort referred to in ss 25(1), (3) and (4) of the AAT Act, it is necessary to consider:
(1)the proper characterisation of the decision that has been made in substance as well as in form;
(2)the provision or provisions of any enactment under which the decision has been made;
(3)the provision or provisions of any enactment providing for review of a decision of that sort; and
(4)if provision is made for review of the decision, the circumstances in which it may be sought and the person or body which may carry out that review.
B. The FOI Act
B.1 The relevance of recent amendments to the FOI Act
Before I could look to the relevant provisions of the FOI Act, I have had to work out whether I am looking at the FOI Act in the form in which it was drafted before its amendment by the Freedom of Information Amendment (Reform) Act 2010 (FOIAR Act) or after. The formal parts of the FOIAR Act came into operation on 31 May 2010 when it received Royal Assent.[11] More substantive provisions came into operation either on that day or, in the case of those having some relationship to the appointment of an Information Commissioner, six months later on 1 November 2010.
[11] FOIAR Act, s 2(1), Item 1
The amendments that might affect the matters I must consider were made in Schedule 1 (“Objects”), Part 2 of Schedule 3 (“Exemptions: Main exemption amendments”) and Part 1 of Schedule 4 (“Information Commissioner Amendments: Main amendments”). As the AIC Act came into operation on 1 November 2010,[12] amendments made by Schedule 1 to the objects provisions came into operation on that day.[13] The day on which those made by Part 2 of Schedule 3 came into operation is determined by reference to Part 4 of that Schedule. They apply only to requests for access made under s 15 received after 1 November 2010.[14] Those made by Part 1 of Schedule 4 also apply only to requests for access made on or after 1 November 2010.[15] As both CKITFA and HETFA made their requests for access before 1 November 2010, that means that I need have regard only to the amendments made by the FOIAR Act to s 3, being the objects provision, and the addition of s 3A.
[12] AIC Act, s 2, Item 2
[13] FOIAR Act, s 2(1), Item 2
[14] FOIAR Act, s 2(1), Items 4 and 6
[15] FOIAR Act, s 2(1), Item 7
B.2 Who may make an application to the Tribunal?
Consistent with s 25, s 55 of the FOI Act has made provision for an application to be made to the Tribunal. Bearing in mind the application lodged in this case, I note that s 55(1) provides that:
“Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
(a)…
(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)-(h)…”
Therefore, if an application is made for review of such a decision, the Tribunal has power to review that decision as provided by s 25(4).
Section 55(1) is written in the passive voice when it provides that “an application may be made”. The question then becomes: “By whom may the application be made?” There is an indirect answer to the question in ss 55(2) and (3). Section 55(2) provides that:
“… where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.”
That is to say, a person must apply for internal review of a decision under s 54 before applying to the Tribunal for review. That does not mean that the person must wait for a decision on the application under s 54 before applying to the Tribunal for s 55(3) provides:
“Subsection (2) does not prevent an application to the Tribunal in respect of a decision where:
(a)the person concerned has applied under section 54 for a review of the decision;
(b)a period of 30 days has elapsed since the day on which that application was received by or on behalf of the agency concerned; and
(c)he or she has not been informed of the result of the review;
and such an application to the Tribunal may be treated by the Tribunal as having been made within the time allowed by subsection (4) if it appears to the Tribunal that there was no unreasonable delay in making the application to the Tribunal.”
The effect of ss 55(1)(aa), (2) and (3) is that a person who “is or has been entitled to apply under section 54 for a review of the decision” is the person who is entitled to apply to the Tribunal for review of a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates. Entitlement to apply under s 54 generally arises when the initial decision on a request has been made by a person other than the responsible Minister or the principal officer of the agency to which a request was made under the FOI Act.
Referring only to its provisions that are relevant to this matter, s 54(1) provides:
“Subject to subsection (1A), where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being:
(a)…
(b)a decision granting access to a document but not granting, in accordance with the request, access to all documents to which the request relates; or
(ba)-(h)…
the applicant may, by application in writing to the agency accompanied by any application fee in respect of the application, request a review of the decision.”
As the “applicant” means “a person who has made a request”,[16] the person who may apply for review of a decision under s 54, and so the person who is entitled to apply to the Tribunal for review of the decision then made under s 54, must be the person who has made a request for access to documents that led to the initial decision. In the circumstances of this case, the next question is whether a request under s 15 and an application under s 54 may be made by more than one person.
Who may make a request under the FOI Act?
[16] FOI Act, s 4(1)
A. What is a “request”?
A “request” means “… an application made under subsection 15(1)”[17] of the FOI Act. Section 15(1) provides that:
“Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.”
Section 15(2) requires that the request be in writing, provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency or the Minister to identify it.[18] It must show an address, be posted or delivered to the agency or Minister and be accompanied by the fee payable under the FOIFC Regulations.[19] Theoretically its criteria could be met by one or more persons, wishing to obtain access and so making a request. If the criteria are not met, it is “… the duty of the agency to take reasonable steps to assist the person to make the request in a manner that complies with …” s 15.[20]
[17] FOI Act, s 4(1)
[18] FOI Act, s 15(2)(b)
[19] FOI Act, s 15(2)(c) to (e)
[20] FOI Act, s 15(3)
On the face of s 15, there is nothing that requires the word “person” to be read in the singular. Relying on s 23(b) of the Acts Interpretation Act 1901 (AI Act) it might be thought that “words in the singular number include the plural” so that the word “person” could equally be read as “persons”. To think that without further enquiry would be dangerous for words in the singular number will not include the plural if the contrary intention appears in the legislation in which they appear. Section 23(b) reads in its entirety:
“In any Act, unless the contrary intention appears:
(a)…
(b)words in the singular number include the plural and words in the plural number include the singular.”
I have searched the FOI Act in order to ascertain whether there is an intention, contrary or otherwise and have begun with its stated objects. Section 3(1) sets out what the legislation’s objects are and how Parliament intends to achieve those objects when it provides:
“The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)requiring agencies to publish information; and
(b)providing for a right of access to documents.”
Sections 3(2) and (3) state, in effect, what Parliament wants to achieve by giving the Australian community access to this information. It wants:
“… to promote Australia’s representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b)increasing scrutiny, discussion, comment and review of the Government’s activities.”[21]
and also
“… to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.”[22]
[21] FOI Act, s 3(2)
[22] FOI Act, s 3(3)
Sections 3(4) and 3A are directed to the way in which Ministers and agencies approach their obligations under the FOI Act and generally. Section 3(4) provides that functions and powers given by the FOI Act “… are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.” The focus of s 3A is upon the publication of information or access to documents apart from the FOI Act. It underlines that, by enacting the FOI Act, it is not Parliament’s intention to limit the provision of information or the grant of access otherwise than under the FOI Act.
These objects are broadly worded. Apart from one matter, they encompass the Australian community and all who make up that community. Dissemination of information is to all. The one exception is found in s 3(1)(b) when reference is made to the provision of “a right of access to documents”. That suggests something more particular than dissemination to the Australian community and its members as a whole.
B. The right of access
Section 3(1)(b) does not create a right of access. That is left to s 11. Section 11(1) provides:
“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.”
Section 11(2) clarifies that:
“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 the Minister’s belief as to what are his or her reasons for seeking access.”
If, subject only to its provisions, “every person has a legally enforceable right to obtain access in accordance with” the FOI Act to certain documents, then every person in the sense of “… each one or single …”[23] person and “each (referring one by one to all the members of an aggregate) …”[24] has that legally enforceable right. It is a right whose boundaries are found in the FOI Act. It is a right that gives rise to a correlative duty on the agency or Minister to whom the request has been made and has been expressly stated in the FOI Act. If it has been made in accordance with the Act and any charge payable under the FOIFC Regulations has been paid, “… the person shall be given access to the document in accordance with this Act.”[25] Although implicit in the expression of that duty, s 18(2) expressly states that an agency or Minister is not required to give access to a document at a time when it is an exempt document.
[23] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[24] Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd
[25] FOI Act, s 18(1)
Can s 11 be read as conferring “a legally enforceable right” on “every person” or persons so that the word “person” is read to include both the plural number as well as the singular number? Having regard to the ordinary meaning of the word “every” and the grammatical construction of s 11(1), I do not think that it can be read in that way. It is difficult to interpret s 11(1) as reading “… every person has [and persons have] a legally enforceable right to obtain access…” to the documents it describes. That would require me to ignore the word “every” when reading the word “person” in its plural sense for the word “every” is, by definition, a reference to the singular. It would also change the meaning of s 11(1). Instead of conferring a right upon every person it would confer that right and also a right upon a group of two or more persons. If both the words “person” and “right” were read as including both their plural and singular numbers, I would again be required to ignore the word “every” and the word “a”. It would then read “… every person has [and persons have] a legally enforceable right [legally enforceable rights] to obtain access…” to the documents it describes. Had Parliament intended to achieve this result, it might have chosen to provide that “Subject to this Act, a person has a legally enforceable right to obtain access…” There would have been no need to include the word “every.”
I do not think that an interpretation that requires me to ignore a word in a statutory provision can be the correct interpretation. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority[26] (Project Blue Sky):
“…[A] court construing a statutory provision must strive to give meaning to every word of the provision … In The Commonwealth v Baume … Griffith CJ cited
R v Berchet … to support the proposition that it was a ‘well known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.’”[27][26] [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490; McHugh, Gummow, Kirby and Hayne JJ; Brennan CJ dissenting
[27] [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490 at [71]; 382; 855-856; 510
I am also mindful that their Honours preceded this passage of their judgment in Project Blue Sky with references to other principles of statutory interpretation. Among them are that:
“ The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute … The meaning of the provision must be determined ‘by reference to the language of the instrument as a whole’ … In Commissioner for Railways (NSW)
v Agalianos …, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed …A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals …”[28]
[28] [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490 at [69]-[70]; 381-382; 855; 509
Principles such as these underpinned the Privy Council’s approach in the earlier case of Blue Metals Industries Pty Ltd v Dilley[29] when it considered s 21 of the Interpretation Act 1899 (NSW). Section 21 is similar to s 23 of the AI Act. The Privy Council said:
“… Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need by no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole. …”[30]
[29] [1969] UKPCHCA 2; (1969) 117 CLR 651; [1970] AC 827; Lord Morris of Borth-y-Gest, Lord Pearce, Lord Wilberforce, Lord Pearson and Lord Diplock
[30] [1969] UKPCHCA 2; (1969) 117 CLR 651; [1970] AC 827 at [8]; 656; 846
I have already looked broadly at what the FOI Act is intended to achieve. I will now turn to other provisions of the FOI Act. The provisions of the FOI Act relating to requests fall into three groups reflected by Parts III, IV and VI. When each is read at a general level, the provisions could be read as applicable to a request for access made by either a person or by two or more persons. When read with more particularity, I think that they cannot be read in that way.
C. Identifying the boundaries of the right of access
I have already set out the extent of the right that “every person” has. It is a right whose boundaries must be defined on each occasion a request is made. That must occur because the right extends only to a “document of an agency” or to an “official document of a Minister” and does not extend to an exempt document.[31] Those terms are defined and those definitions immediately set some of the boundaries of the right conferred by s 11. The definition of an “exempt document” takes me, for the most part, to the provisions of Part IV of the FOI Act.[32] I will return to those. Part VI is concerned with the review of decisions made under the FOI Act and is not relevant in this context.
[31] The reference to the singular “document” must include the word in its plural sense. That accords with s 23(a) of the AI Act but also with the processing provisions of Part III of the FOI Act. Were it the case that a request could only be made in respect of a single document, there would be no need to give an agency or Minister the power to refuse the request on the basis of workload considerations as provided in s 24. There would have been little need to impose charges and particularly not of the sort found in the Freedom of Information (Charges) Regulations 1982. See also footnotes 56 and 57.
[32] FOI Act, s 4(1) An exempt document also includes a document in respect of which, by virtue of s 7, an agency is exempt from the operation of the FOI Act or it is an official document of a Minister that does not relate to the affairs of an agency or a Department of State.
The qualification of the right by reference to its being “Subject to this Act” is a reference to qualifications that are found in Part III. That is the Part which begins with s 11 and the statement of the right to access. It excludes certain documents from the scope of the right. Section 12, for example, does that by providing that a person is not entitled to obtain access to certain documents already available through other means that it specifies. Section 13 deems certain documents held by certain institutions not to be documents of an agency for the purposes of the FOI Act. The FOI Act also limits the right of access given under s 11 by allowing an agency or Minister to refuse requests in certain circumstances. Taking s 24 as an example, it permits, in broad terms, an agency or Minister to refuse a request having regard to workload considerations and s 24A permits them to refuse a request if satisfied that the requested document does not exist or all reasonable steps have failed to find it. The right of access is also limited when s 15A requires that a would-be applicant comply with additional criteria before making a request for access to personnel records.[33] Those additional criteria apply if an agency has established procedures enabling that person to ask for access to those records. He or she is not entitled to request them under the FOI Act until he or she has requested access in accordance with those procedures and is either not satisfied with the outcome of that request or has not been notified of an outcome.[34]
[33] “personnel records, in relation to an employee or former employee of an agency, means those documents containing personal information about him or her that are, or have been, kept by the agency for personnel management purposes.”: FOI Act, s 15A(1)
[34] FOI Act, s 15A(2)
Part III of the FOI Act also requires an agency or Minister to “… take all reasonable steps to enable the applicant to be notified of a decision on the request …”.[35] It gives them the tools it needs to deal with a request and to take account of the practicalities of public administration. Therefore, for example, s 16 provides for the transfer of requests in certain circumstances, s 17 for requests involving documents stored on computers and the like, s 24 for requests raising certain workload considerations and s 24A for documents that cannot be found or do not exist. Sections 26A, 27 and 27A provide for an agency or Minister to consult with third parties where a request has been made for documents whose disclosure is likely to have an effect on Commonwealth-State relations, relates to the business affairs of those third parties or contains personal information. Part III also gives an agency or Minister the tools to delete irrelevant or exempt matter from a document so that access can be given to the remainder rather than claiming exemption for the whole. That tool is found in s 22. Section 20 is concerned with the form in which access is given and s 21 with the timing of access in certain instances.
[35] FOI Act, s 15(5)(b)
Part IV provides for documents that are “exempt documents”. Some exemptions are defined by reference to what the documents are. Examples are those in relation to Cabinet documents,[36] Executive Council documents,[37] documents to which secrecy provisions of enactments apply[38] and electoral rolls and related documents.[39] Other exemptions are defined by reference to the consequences that would follow from disclosure under the FOI Act. Examples are documents affecting national security, defence or international affairs[40] or the States,[41] internal working documents,[42] and documents containing material obtained in confidence.[43] A third group of exemptions is defined by reference to the effect that disclosure would have on third persons whose personal or business affairs information is held by an agency or Minister. Sections 41 and 43 provide for those.
[36] FOI Act, s 34
[37] FOI Act, s 35
[38] FOI Act, s 38
[39] FOI Act, s 47A
[40] FOI Act, s 33
[41] FOI Act, s 33A
[42] FOI Act, s 36
[43] FOI Act, s 45
Apart from ss 41 and 43, the exemption provisions apply regardless of the identity of the person making the request. Sections 41 and 43 are different for each provides, in the broadest outline, that the exemption does not apply if the personal information or business affairs information relates to the person requesting access to the document.[44]
[44] The position may be considerably more complicated than this statement would suggest and I refer to my decision in Re LJXW and Australian Federal Police [2011] AATA 187; (2011) 120 ALD 516 at [137]-[205]; 557-575
D. The task of the agency or Minister
I have already referred to the duty imposed on an agency or Minister under s 15(5)(b) to notify the applicant of “a decision on the request” and under s 18 to give access to the document requested in accordance with the FOI Act. The whole focus of the task faced by an agency or by a Minister is upon making “a decision on the request”. Given that the right of access is limited in the manner I have described, that decision may be made up of a number of subsidiary decisions. So, for example, it may be made up of subsidiary decisions to the effect that access to one document requested is refused because it cannot be found, the applicant is not entitled to access to another document because it is open to public access as part of a public register and access is refused to another because it is a Cabinet document and so an exempt document but only refused in part to another on the basis that it contains matter that is exempt as an internal working document but that matter can be deleted and access granted to the remainder. A further subsidiary decision may be to the effect that access to one of the documents is deferred and another to the effect that access will be provided in one particular way or another. Together, the subsidiary decisions make up the decision on the request and it is the decision that is notified to the applicant as required by
s 15(5)(b).
E.The task of decision-making if a request may be made by more than one person
I have already expressed the view that, on the ordinary words of s 11, the right of access is framed upon a person’s right in the singular sense and that it does not extend to a right that may be exercised in the one request by more than one person. This view seems to me to be consistent with the framework of provisions to which I have referred above. The purpose of those provisions is to enable an agency or Minister to make “a decision on the request” (emphasis added) that accords with the applicant’s right to have access to documents of the agency or official documents of the Minister other than exempt documents and that takes account of the other limitations upon the right of access found in Part III.
As I noted earlier in these reasons, that single decision may contain a number of subsidiary decisions. That does not change its essential characteristic as “a decision on the request” (emphasis added). Would its essential characteristic be changed if a single request were to be made by more than one person? In some instances, there would be no practical difference. That would be so if the request sought access to, for example, paper records and any exemptions that were applicable did not arise under either ss 41 or 43. Exemptions such as those arising under s 33,[45] 34,[46] 36[47] and 40[48] take effect in precisely the same whether one person or more were to request the documents in the one request. That is the outcome by virtue of the terms in which those exemptions are drafted quite apart from the statement found in s 11(2) that “… a person’s right of access is not affected by … any reasons the person gives for seeking access …”[49] or what the agency or Minister believes are those reasons.[50]
[45] Documents affecting national security, defence or international relations
[46] Cabinet documents
[47] Internal working documents
[48] Documents concerning operations of agencies
[49] FOI Act, s 11(2)(a)
[50] FOI Act, s 11(2)(b)
Exemptions found in ss 41 and 43 are in a different category. Their application can be affected by the identity of the person making the request and whether the document requested contains personal information or business affairs information, as the case may be, about that person. If a request were made by more than one person to a document, there would be a very real practical difference in the application of the exemptions under
ss 41 and 43. As soon as the requested document contains information of that sort about one or other of a group of persons making a single request, the agency or Minister must make two decisions. Assuming only two persons are making a single request and the document contains personal information and/or business affairs information about one but not the other, one decision will have to be made having regard to ss 41(2) and 43(2) and the other without regard to those provisions. Immediately, the essential characteristic of the task of processing a request is changed. It no longer leads to “a decision on the request” referred to in
s 15(5)(b) but to multiple decisions on the request.
Differences of opinion amongst a group of applicants as to the form in which access is given would not be of any particular difficulty for s 20 envisages that access may be given in one or more forms. The disparate wishes of the members of a group of applicants could be accommodated whether their differences arose because the information they sought was held on a database rather than in discrete documentary form as catered for by s 17.
Particular difficulties would arise if the members of a group of persons making a request could not agree on whether they wanted access to documents from which irrelevant and exempt matter had been deleted or whether they did not. Under s 22, an agency or Minister is required to have regard to the wishes of the person making the request for access. No provision is made in that section for an agency or Minister to make two decisions on the request having regard to the separate wishes of more than one person making a request. Where the circumstances set out in s 22(1) arise:
“… the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.”
The decision that must be made is one or the other; not both.
I need to make particular reference to s 15A. It is concerned with a request made for access to personnel records. I have already mentioned that a person wishing to make a request under the FOI Act for personnel records must first ascertain whether the agency has established procedures enabling him or her to ask for access to those records. If it has, he or she is not entitled to request them under the FOI Act until he or she has requested access in accordance with those procedures and is either not satisfied with the outcome of that request or has not been notified of an outcome within 30 days after the request was made.[51] If a request were to be made by more than one person and one person had not made a request for access to the agency in accordance with the established procedures, it would be impossible to apply s 15A(2). Section 15A(2) would not permit that one person to apply for access under s 15(1) whereas the other person or persons could. No provision is made in the FOI Act for dividing a request into, as it were, two requests so that the request by the person who had not followed the established procedures could be refused and the other could proceed to be processed and a decision reached. Even if division were allowed, to which request would the application fee be attributed? If there were only two persons, it could be attributed to the request made by the person who had complied with the preliminary criteria in s 15A but why should it not equally be attributed to the non-complying request so that the person could get a refund?[52]
[51] FOI Act, s 15A(2)
[52] Application fees are no longer relevant but they applied to requests made before 1 November 2010 and are relevant in this case.
Finally, I will refer to the charges regime established under the FOI Act. Section 29(1) requires an agency or Minister to give an applicant a written notice when it has decided “… that an applicant is liable to pay a charge (not being an application fee) in respect of a request for access to a document, or the provision of access to a document …”. Among the matters that must be included in the notice is a statement that the applicant must advise of his or her agreement to pay the charge, to contend that it has been wrongly assessed or should be reduced or not imposed, or both, or that he or she withdraws the request for access.[53] Among the matters the agency or Minister must take into account in deciding whether to reduce or not to impose the charge is “… whether the payment of the charge, or part of it, would cause financial hardship to the applicant, or to a person on whose behalf the application was made …”.[54] Financial hardship to the person making the request or to the person on whose behalf the request is made was also a basis on which the agency or Minister may remit an application fee payable in respect of a request for access made under s 15(1) or an application under s 54(1) for review of a decision.[55]
[53] FOI Act, s 29(1)(f)
[54] FOI Act, s 29(5)(a)
[55] FOI Act, s 30A(1)(b)(i). These fees no longer apply since the amendments to the FOI Act on 1 November 2010 but ss 29(1)(f) and (5)(a) continue to have effect.
It is easy to see practical difficulties arising if a request were able to be made by more than one person or on behalf of more than one person. It might be said by some that difficulties would not arise at a practical level for any assessment of financial hardship would have to have some regard to the fact that the charge would be borne by more than one person. I would not regard that as an answer for the charge that is applicable under the FOIFC Regulations,[56] as they were called when the requests for access were made in this case,[57] can be quite substantial. The total amount of the charge is assessed after adding the individual charges, assessed on either an hourly or per folio rate, imposed for particular tasks being undertaken in respect of the request or the provision of access to documents. Even if, from a practical point of view, it could be said that the charge could be divided amongst more than one person making a request, what is the outcome if one person’s share of the charge were to cause that person financial hardship? Would the agency or Minister be required to consider whether to reduce or not impose the charge because of financial hardship to one of the persons making the request? That does not seem consistent with the power given by s 29(5)(a) of the FOI Act. Even if more than one person may make a request, that provision contemplates that “… the payment of the charge, or part of it, would cause financial hardship to the applicant, or to a person on whose behalf the application was made …” (emphasis added). It does not contemplate that the payment of the charge would cause financial hardship to some of the applicants.
[56] I have had regard to the FOIFC Regulations and FOI Act, which both came into operation on 1 December 1982. Each was part of the one scheme regulating the right to obtain access to information held by the Commonwealth. In keeping with modern drafting practice, the FOI Act set out the guiding principles relating to fees and charges and the FOIFC Regulations provided the detail of those fees and charges. That detail was clearly contemplated by s 29 of the FOI Act. If it be thought that I am referring to the FOIFC Regulations to interpret s 29, and I am not sure that I am, I consider that I am entitled to do so in view of authorities such as Elazac Pty Ltd v Commissioner of Patents [1994] FCA 1315; (1994) 125 ALR 663 at 666-667. In that case Heerey J found that the Patents Act 1990 and the Patents Regulations 1991 “... establish a quite detailed regime concerning amendments to patent requests, specifications and other filed documents. ...” so that, together, they provided “… a framework built on contemporaneously prepared regulations” of the sort described by Lord Lowry in Hanlon v Law Society [1981] AC 124 at 193 and the regulations could be used as an aid to the construction of the Act.
[57] Now called the Freedom of Information (Charges) Regulations 1982 since their amendment to recognise the abolition of application fees when the amendments made by the FOIAR Act came into operation.
If the agency or Minister were required to divide the charge amongst the group of persons making the request and reduce or not impose part of the charge for one and not for another, that would have the effect of dividing the request for access into more than one request and the FOI Act makes no provision for that. That would not have been possible before the abolition of application fees unless each of the persons making the request was required to pay an application fee or the agency or Minister decided to remit it. Even since the abolition of application fees, it would not seem to accord with the stated intention of s 29 which is concerned with the an applicant’s liability “… to pay a charge in respect of a request for access to a document, or the provision of access to a document …”[58] (emphasis added), The provision does not link charges, as opposed to a charge, in respect of a request or the provision of access with a request. It seems to me that this is a deliberate recognition of the fact that a charge is made in respect of a request even if it is made up of several components. It is not a series of charges, each made up of several components, in respect of a request.
[58] FOI Act, s 29(1)
F. Only one person may make a request
Having regard to the ordinary meaning of the right of access created by s 11(1) of the FOI Act, the need to take account of all of the words used by the legislature, the compass and limits of the right of access, the duties of an agency or Minister to whom a request is made, and the practical difficulties that arise from any other interpretation and the substance and tenor of the FOI Act as a whole, I have decided that a person has a legally enforceable right to obtain access to a document of an agency or an official document of a Minister other than an exempt document. That right is subject only to the qualifications and limitations found in the FOI Act. It is a right that is exercisable only by the person to whom it is given and that person may not exercise it in concert with others by making a single request. More than one person may choose to make identical requests but they may not make a single request for access to documents.
A “person” who may make an application is not limited to those who are individuals but extends to a body politic or corporate as well as an individual.[59] Except in relation to the personal affairs exemption in s 41, there is no provision that would suggest that a more narrow interpretation were appropriate in the FOI Act. Indeed, ss 27, 43 and 59(2A) make it abundantly clear that the word “person” is intended to be read very broadly when documents concerned with a person’s business affairs are under consideration. When the word “person” is used in s 41, it has, to some extent, a more limited meaning. Section 41(1) provides that a document is an exempt document if its disclosure under the FOI Act would involve an unreasonable disclosure of personal information about any person. Section 4(1) defines the expression “personal information” in terms of information about an individual. It follows that the exemption has been enacted to protect personal information about a person who is an individual from unreasonable disclosure. That protection does not extend to a person which is a body politic or body corporate.
[59] AI Act, s 22(1)
May a single application for internal review be made by more than one person?
I have already concluded above that, the person who may apply for review of a decision under s 54 must be the person who has made a request for access to documents that led to the initial decision.[60] As I have concluded that only one person may make a request, it would follow that only one person may apply for review under s 54. That conclusion would follow also from the fact that an agency or Minister is, on a review under s 54, required to consider the matter afresh. All of the issues that I have raised and that face the initial decision-maker face the person authorised to make the decision on review under s 54.
[60] See [22] above
HAS AN APPLICATION BEEN MADE IN THIS TRIBUNAL?
CKITFA and HETFA clearly made two separate requests to the ATO for access to certain documents under the FOI Act. It is clear that the ATO dealt with those two requests and made its decision in respect of them at the same time. That made practical sense for they sought the same documents and, if the exemptions that have been claimed are any guidance, issues of the sort raised by ss 41 and 43 and other practical difficulties did not arise. It notified CKITFA and HETFA of its decision in the same letter dated 27 January 2010. That does not mean that the ATO made a single decision. Rather, it made two decisions in precisely the same terms. It is clear from the ATO’s letter to their solicitors that it was well aware that each had made a request. As those requests were in the same terms, the decisions made by the ATO in respect of them were in the same terms. The fact that the decisions were recorded in the same terms in the same letter does not change the fact that they were made in respect of separate requests. The letter dated 27 January 2010 must be read as two decisions with one applying to each request.
For the reasons I have given above, CKITFA and HETFA was each entitled to apply under s 54 of the FOI Act for review of the decision made on its request. The letter written to the ATO on their behalf must be read as a single application applying to both CKITFA and HETFA but the ATO’s response was to treat them as two separate applications under s 54. Although I have set it out above, I will repeat the relevant passage from the ATO’s letter dated 15 August 2011 and emphasise the references to the applications and requests in the plural and not the singular:
“I refer to your internal review applications dated 1 April 2010 in which you sought a review of the decision made by Ms Dann dated [sic] not to release certain documents to you in response to you[r] applications under the FOI Act. I also refer to the staged release of documents made to you under cover of my letters dated 1 June 2010, 20 July 2010 and 22 February 2011.
I enclose the final tranche of documents in response to your internal review requests and my decision on the review. …”
The ATO again notified CKITFA and HETFA’s solicitors of the decision in a single letter but I do not think that this detracts from the ATO’s decision to treat them as separate applications. Had it not taken this approach, it would have had to treat the applications as not properly made. It has chosen instead to interpret the application made to it under s 54 in a way that preserved CKITFA and HETFA’s rights under the FOI Act. Its decision, although written as a single decision, must be read as two decisions in identical terms with one applying to each application.
As no mention was made of the payment of an application fee in respect of the application made under s 54, I have considered whether that has any relevance on my decision. I have decided that it does not for I am considering the matter in the context of a decision that, on its face, purports to have been validly made under s 54. In reaching that conclusion, I have relied on the principles referred to by the Full Court of the Federal Court in Kennedy v Administrative Appeals Tribunal[61] when it said:
“ Mr Kennedy’s challenge in the Tribunal to the validity of the Commissioner’s assessments, based on the contentions that they were made in bad faith or the Commissioner’s view as to fraud and evasion was incorrect, must fail. The Tribunal has jurisdiction to hear and determine the present review under Part IVC of the TAA [Taxation Administration Act 1953] because each assessment purports to have been made in exercise of powers conferred by that enactment. Whether or not the assessments were, as a matter of law, validly made does not attenuate this finding. There is a long line of authorities which supports this proposition, starting with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307. More recently, in Minister for Immigration v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 at 323, the Full Federal Court observed that the judgment as to the validity of a Minister’s actions is for the courts, not for an administrative body such as a Tribunal: see also Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344.’[62]
[61] [2008] FCAFC 124; (2008) 168 FCR 566; 249 ALR 87; 103 ALD 238; [2008] ATC 20-037; 73 ATR 276; 48 AAR 500; French, Tamberlin and Mansfield JJ
[62] [2008] FCAFC 124; (2008) 168 FCR 566; 249 ALR 87; 103 ALD 238; [2008] ATC 20-037; 73 ATR 276; 48 AAR 500 at [22]-[23]; 573; 94; 245; 8,478; 282-3; 507
For the reasons I have given, separate applications must be made by each of CKITFA and HETFA seeking review of each of the decisions made by the ATO on review under s 54 of the FOI Act. A separate fee of $777 is payable in respect of each of those applications. The application that has been made has not been properly made but the fee that has been paid can be transferred to one of the other applications when it is lodged in the Tribunal. CKITFA and HETFA are still well within the 60 day period provided by s 55(4)(a) for the lodgement of applications for review.
I certify that the fifty eight preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Leah Berardi, Associate
Date of Hearing Heard on the papers
Date of Decision 21 September 2011
Solicitor for Applicants Ms S Weinberg
Mallesons Stephen Jaques
Solicitor for Respondent ATO Legal Services Branch
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