Clinton Fernandes and National Archives of Australia
[2014] AATA 198
[2014] AATA 198
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0407, 0408, 0082
Re
Clinton Fernandes
APPLICANT
And
National Archives of Australia
RESPONDENT
DECISION
Tribunal President D Kerr
Date 8 April 2014 Place Hobart Order 3 of the Tribunal’s decision of 2 April 2014 is set aside and in lieu thereof the operation of the Tribunal’s decision of 2 April 2014 is to come into effect 28 days from that date.
........................................................................
President D Kerr
Catchwords
Practice and Procedure – Archives Act 1983 s 55A – automatic stay of Tribunal’s decision on institution of appeal to Federal Court
Practice and Procedure – application by respondent for extension of date on which decision is to come into operation after Tribunal decision favourable to applicant and publication of reasons but before expiration of extension or of appeal period – whether Tribunal has power to grant further extension – power of Tribunal to re-exercise a power as the occasion requires – particular legislative context – application for further extension unopposed – stay extended by Tribunal
Legislation
Acts Interpretation Act 1901 s 33(1)
Administrative Appeals Tribunal Act1975 ss 43(5A), 43(5B), 43(6), 43AA, 44(2A)
Archives Act1983 s 55A
Cases
Comcare v Moon (2003) 75 ALD 160
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Re Sanchez and Comcare (1997) 48 ALD 785
Secondary Materials
Allars M, “Perfected Judgements and Inherently Angelical Administrative Decisions” (2001) 30 AIAL Forum 1
REASONS FOR DECISION
On 2 April 2014 the Tribunal published its reasons in this proceeding.
The effect of the Tribunal’s decision was that two records which the Respondent had claimed to be exempt from release under the Archives Act1983 should be released.
Ordinarily a decision of the Tribunal comes into effect on the date it is made.
Section 55A of the Archives Act provides that if an appeal to the Federal Court is brought by Archives from a decision to order the release of a record that has been claimed to be exempt, an automatic stay of the Tribunal’s decision comes into effect.
To avoid the decision of the Tribunal obliging Archives to release the records before it could consider its position with regard to its appeal rights, the Tribunal ordered pursuant to s 43(5B) of the Administrative Appeals Tribunal Act1975 that its decision made on 2 April 2014 would come into effect 7 days from the date of that decision.
On 4 April 2014 my associate received correspondence from the Australian Government Solicitor, on behalf of Archives, in the following terms.
1We refer to the decision of President in this matter on 2 April 2014.
2In paragraph 69 of the reasons for decision the President said that to accommodate the intent of s 55A of the Archives Act 1983, the Tribunal would order that the operation of its decision come into effect 7 days after the date of publication of the Tribunal’s reasons.
3The respondent respectfully requests that the Tribunal extend the date upon which the Tribunal’s decision comes into effect until 28 days after the date of the publication of the Tribunal’s reasons for decision. This coincides with the day by which any appeal must be instituted in accordance with s 44(2A) of the Administrative Appeals Tribunal Act 1975.
4The reason for this request is that the respondent is presently considering whether to appeal to the Federal Court of Australia from the decision of the Tribunal. The respondent wishes to have time to carefully consider its position and to decide whether or not to appeal. The requested extension will give the respondent sufficient time to do this.
5We have spoken with the applicant’s solicitor, Mr Latham who has indicated the applicant does not oppose the granting of the respondent’s request.
6The respondent would appreciate it if the Tribunal is, if possible, able to respond to this request by Monday, 7 April 2014. Please contact the writer if you wish to discuss this request.
As
(a)the order sought was not opposed;
(b)the intention of the Tribunal in deferring the date of the coming into effect of its decision was to allow Archives to exercise such appeal rights as it might be advised to pursue; and
(c)the exercise of those appeal rights would be available to Archives up to 28 days after the date of the Tribunal’s decision,
there appeared to be no reason, save for the requirement that the Tribunal be satisfied of its power or jurisdiction to do so, not to make the order sought.
At 5.00pm on 7 April the Tribunal convened a directions hearing by telephone to permit the parties to make submissions as to whether the Tribunal had jurisdiction to make that order.
Mr Hyland, counsel for Archives submitted that the Tribunal had power under s 43(5B) to do so. That section provides:
The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.
Mr Hyland submitted that as the Tribunal’s decision had not yet come into effect the power under s 43(5B) had not become spent and could be relied upon to make a further order extending the date of the decision coming into operation.
Mr Hyland submitted that s 43(6) also could be availed of. It provides:
A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
Mr Hyland submitted that the power to “otherwise order” permitted the Tribunal to defer the coming into effect of a decision notwithstanding its coming into operation.
Alternatively Mr Hyland submitted the provisions of s 33(1) of the Acts Interpretation Act 1901 conferred the necessary power. Section 33(1) provides
Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.
Mr Latham, counsel for Dr Fernandes, confirmed that his client did not oppose the Tribunal making the order sought and made no submissions as to jurisdiction.
CONSIDERATION
The Tribunal is not persuaded that either ss 43(5B) or (6) are independent sources of jurisdiction or power to remake the order made on 2 April 2014 that the Tribunal’s decision came into effect 7 days from that date.
However, while untested by opposing submissions and not without hesitation, the Tribunal accepts that s 33(1) of the Acts Interpretation Act 1901 confers jurisdiction on the Tribunal to re-exercise the power conferred by s 43(5B) “as the occasion requires”.
The Tribunal clearly could not rely upon that provision to remake its substantive decision Re Sanchez and Comcare (1997) 48 ALD 785; Comcare v Moon (2003) 75 ALD 160. Once a substantive decision is made, then subject to the operation of the “slip rule” in s 43AA of the AAT Act or the existence of a self-evident error going fundamentally to jurisdiction (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597), the Tribunal cannot revisit its reasoning or decision making.
However, s 43(5B) appears to confer a distinct and separate adjectival power to specify a later date upon which the Tribunal’s decision is to come into effect.
That power was exercised in the present instance without the benefit of submissions from the parties, the Tribunal on its own motion having identified the need to accommodate the intent of s 55A of the Archives Act.
The complexities of when and under what circumstances the decision of a court or tribunal may be revisited are usefully discussed by Allars M, “Perfected Judgements and Inherently Angelical Administrative Decisions” (2001) 30 AIAL Forum 1. Should this or a related issue arise when there is a contradictor there would be the opportunity to explore in sharper focus some of the considerations referred to in that article. In the present instance in the limited time available neither the parties nor the Tribunal have been able to identify any decision of a court or tribunal which has had to decide the specific question before the Tribunal. Mr Hyland referred the Tribunal in a written submission following the hearing to a number of cases in which the Federal Court of Australia had recognised that interlocutory orders may be revisited. However the Tribunal is sceptical of the relevance of those cases as they involve the exercise of judicial rather than executive power and turn on different jurisdictional premises.
Whilst the issue is not free of doubt I am prepared to accept that the terms of s 33(1) of the Acts Interpretation Act 1901 permit the power conferred by s 43(5B) to be re‑exercised. The occasion requiring its re-exercise is adequately conveyed by the correspondence received by the Tribunal from the Australian Government Solicitor coupled with the confirmation by Mr Lathan that the orders sought are not opposed.
There will be orders accordingly.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of President D Kerr ........................................................................
Associate
Dated: 8 April 2014
Date of hearing 7 April 2014 Date final submissions received 8 April 2014 Counsel for the Applicant Mr I Latham Counsel for the Respondent Mr J Hyland Solicitors for the Respondent Australian Government Solicitor
0