Collection Point Pty Ltd v Commissioner of Taxation
[2012] FCA 720
•10 July 2012
FEDERAL COURT OF AUSTRALIA
Collection Point Pty Ltd v Commissioner of Taxation [2012] FCA 720
Citation: Collection Point Pty Ltd v Commissioner of Taxation [2012] FCA 720 Appeal from: Collection Point Pty Ltd v Commissioner of Taxation [2011] AATA 909 Parties: COLLECTION POINT PTY LTD (ACN 079 904 984) v COMMISSIONER OF TAXATION File number: VID 8 of 2012 Judge: MARSHALL J Date of judgment: 10 July 2012 Catchwords: STATUTORY INTERPRETATION – construction of
s 17(1) of the Freedom of Information Act 1982 (Cth) – on appeal from the Administrative Appeals TribunalLegislation: Freedom of Information Act 1982 (Cth) ss 3, 11, 15, 17, 19, 24, 24A
Freedom of Information Amendment (Reform) Act 2010 (Cth)
Superannuation (Unclaimed Money and Lost Members) Act 1999 (Cth) s 19
Administrative Appeals Tribunal Act 1975 (Cth) s 44Australia, Parliament, Freedom of Information: Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978 and aspects of the Archives Bill 1978 (AGPS, Canberra, 1979)
Cases cited: Re Halliday and Corporate Affairs (1991) 4 VAR 327
Steadfast Group Pty Ltd v WorkCover NSW [2010] NSWADT 23
Dimitrijev v Department of Education [1998] QICmr 14
Strachan v Brown (2000) 9 Tas R 291
Collection Point Pty Ltd v Commissioner of Taxation [2011] AATA 909Date of hearing: 29 June 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: Mr P Herzfeld Solicitor for the Applicant: Christopher Bunnett Lawyers Counsel for the Respondent: Mr S Rebikoff Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: COLLECTION POINT PTY LTD (ACN 079 904 984)
ApplicantAND: COMMISSIONER OF TAXATION
Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
10 JULY 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: COLLECTION POINT PTY LTD (ACN 079 904 984)
ApplicantAND: COMMISSIONER OF TAXATION
Respondent
JUDGE:
MARSHALL J
DATE:
10 JULY 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
The issue for determination in this proceeding concerns a short but important point of statutory construction. It raises the proper interpretation of s 17(1) of the Freedom of Information Act 1982 (Cth) (“the FOI Act”) as it stood before legislative amendments which took effect from 1 November 2010.
The applicant (“Collection Point”) assists clients to retrieve unclaimed superannuation from accounts where the superannuation fund cannot identify the person entitled to the account. The respondent Commissioner maintains a register containing particulars of unclaimed money paid by superannuation providers to the Commissioner; see s 19 of the Superannuation (Unclaimed Money and Lost Members) Act 1999 (Cth). The register includes details of each person in respect of whom there is unclaimed money arising from superannuation entitlements. The Australian Taxation Office (“ATO”) holds information about unclaimed superannuation in electronic form in a database known as Legacy.
On 17 March 2010, Collection Point applied to the Commissioner for access to “…the name and address of each person listed on the “Provider (superfund) enquiry register”, together with the amount of unclaimed money in respect of each of them; and the name and address of each person listed on the “Super (on line) register” together with the amount of unclaimed money in respect of each of them”.
The Commissioner refused this request for access on the basis that the document requested does not exist within the meaning of s 24A(b)(ii) of the FOI Act. This response arose from the fact that the information shown on Legacy cannot be downloaded. An individual or organisation may search for information on Legacy but a report showing all individual details for unclaimed superannuation benefits cannot be produced because the necessary computer program which would be required to do so has not been written.
Collection Point applied to the Administrative Appeals Tribunal (“the Tribunal”) for a merits review of the decision. The Tribunal affirmed the decision under review. Collection Point then appealed the Tribunal’s decision to the Federal Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).
THE LEGISLATIVE CONTEXT
At all material times, s 17 of the FOI Act provided:
(1) Where:
(a)a request (including a request of the kind described in subsection 24(1)) is made in accordance with the requirements of subsection 15(2) to an agency;
(b)it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and
(ba)it does not appear from the request that the applicant wishes to be provided with a computer tape or computer disk on which the information is recorded; and
(c)the agency could produce a written document containing the information in discrete form by:
(i)the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or
(ii)the making of a transcript from a sound recording held in the agency;
the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.
(2)An agency is not required to comply with subsection (1) if compliance would substantially and unreasonably divert the resources of the agency from its other operations.
The decision of the Tribunal quotes from the current version of s 17 of the FOI Act. However, the current version of the section does not materially differ from the pre-November 2010 version quoted above and this could not have affected the Tribunal’s decision.
Under s 11 of the FOI Act, there is, subject to the Act, a legally enforceable right for every person to obtain access, in accordance with the Act, to a document of an agency (such as the ATO). The general object of the Act is to extend as far as possible the right of the Australian community to access information in the possession of the Commonwealth Government, by creating a general right of access to documents in the possession of the government and its agencies. According to s 3(1)(b), the right to access information is “limited only by exceptions and exemptions necessary for 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…”.
While it is the intention of the FOI Act, with certain exceptions, to make public documents accessible, s 24A allows for the refusal of access to documents if they cannot be found or do not exist. However, s 17 provides an exception to s 24A.
THE EVIDENCE BEFORE THE TRIBUNAL
It was not in dispute before the Tribunal that it would be necessary for the ATO to write a new computer program for it to comply with the request of Collection Point. There was evidence before the Tribunal that it would take about five days for a computer programmer “to understand, analyse and confirm the requirements needed to transfer information from the Legacy database into a discrete format that would enable the data to be loaded onto a CD or DVD”. At [39] of its reasons for decision, the Tribunal added:
The programmer would need to design, write and test the computer program to enable a report to be produced. It would take an additional two days to convert the report into an Excel spread sheet, which could be loaded onto a CD or DVD. The total cost would be approximately $7,000. This sum did not include the cost of the work which would then have to be done to review the report and check the details for accuracy, or the cost of any administrative work involved in obtaining approval and scheduling the relevant tasks.
THE DECISION OF THE TRIBUNAL
The Tribunal rejected the submission of Collection Point that the reference to “computer” in s 17(1)(c)(i) was a reference to a computer, in the sense of hardware, as distinct from hardware and software. At [28], the Tribunal observed that “some software programming effort would be required in order to generate the information that the applicant sought”. The Tribunal considered at [43] that the primary question before it was:
…whether the writing of a computer program over one week in order to satisfy a freedom of information request represents the use of agency computer facilities which are ordinarily available.
Depending on the answer to that question, it considered that s 17(2) may or may not arise for consideration.
The Tribunal concluded at [51], that a computer “was not ordinarily available for use in connection with the retrieval or collection of the information that the applicant sought”. At [59], the Tribunal concluded that the document in respect of which access was sought does not exist and that under s 24A of the FOI Act, the Commissioner had no obligation to comply with Collection Point’s request.
THE QUESTION OF LAW
The question of law, as framed by Collection Point, requiring resolution in this appeal is:
On a proper construction of s 17(1)(c)(i) of the Act, is the need to write a new computer program a fact capable of meaning that a computer is ‘not ordinarily available’ to an agency?
COLLECTION POINT’S ARGUMENT IN SUMMARY
Collection Point’s ground of review was:
The Tribunal erred in concluding that, on a proper construction of s 17(1)(c)(i) of the Act, the need to write a new computer program was a fact capable of meaning that a computer was not ‘ordinarily available’ to an agency.
Collection Point submitted that as the ATO could provide a document containing the information sought by it, in discrete form, by the use of a computer, the requirements of s 17(1) were fulfilled. The only other requirement, easily satisfied, (so the argument ran) was that the computer itself be one which is ordinarily available to the ATO for retrieving or collating stored information. Any difficulty that the ATO may encounter as a consequence, Collection Point contended, could be addressed by seeing if compliance would substantially or unreasonably divert the operations of the ATO in accordance with s 17(2) of the FOI Act.
THE COMMISSIONER’S RESPONSE IN SUMMARY
The Commissioner submitted that s 17(1)(c)(i) was directed to whether a document could be produced by the ordinarily available use of the computer. If the document required a computer to be used in a manner other than that which is ordinarily available for its use, s 17(1)(c)(i) would not be satisfied.
EXTRINSIC MATERIAL
The only extrinsic material which was before the Tribunal and is now before the Court which may bear on the construction of s 17(1) is the Senate Standing Committee on Legal and Constitutional Affairs Report on the Freedom of Information Bill 1978 and aspects of the Archives Bill 1978 (Parliamentary Paper No 272/1979) (“the Report”). At [29], the Tribunal considered that paragraph 8.33 of the Report, as relied on by Collection Point “may have some relevance to the question of whether a computer or other equipment is ordinarily available but…does not assist on the question of whether the reference to computer or other equipment is confined to hardware as opposed to a system involving hardware and software”.
The portion of the report relevant to the current discussion extends from paragraphs 8.31 to 8.33. It refers to Clause 15(1) of the Bill which became s 17(1) of the FOI Act. These paragraphs state:
Requests for non-written information (clause 15)
8.31 Clause 15(1) provides for the granting of access where information does not exist in discrete form in documents of the agency but could be put into such form through the use of a computer or through the making of a transcript from a sound recording. Clause 15(2) enables an agency to refuse a request if doing this would interfere unreasonably with the operations of the agency; an appeal against such refusal lies to the Administrative Appeals Tribunal.
8.32 These provisions, particularly as they relate to computer-stored information, have been the subject of some criticism. It is at this point, as one submission put it, that the Bill ‘is most like a freedom of access to documents instrument and least like a real freedom of information initiative’; it was argued that an agency ‘may legally avoid answering questions from the public on the grounds that the question does not constitute a request for access to any existing document, storage or transcript’. At the very least it does appear that clause 15 may permit certain sorts of information to be unrecoverable under the terms of the legislation. As the submission of Mr P. R. Munro suggested, ‘clause 15 provides a procedure enabling an agency to search its computer records’ but the ‘opaque legalistic and discretionary means of including computer records within documents covered by the Act is to be contrasted with the extremely explicit definition of “information storage device” contained in clause 3 of the Audit Amendment Act 1978…it should be made abundantly clear that the matters coming within the definition of “information storage device” will require adequate identification and definition as being within “a category of documents maintained” under clause 6’. This view received some confirmation from the Chairman of the Public Service Board who indicated that information would probably not be available if a new program for its retrieval had to be written. As he put it ‘if data is held in an organization but it is not accessible even to the permanent head unless he authorizes a major research program or, alternatively, diverts the computer programs to produce a new stream of information, that does raise a question as to whether that information is available’.
8.33 We believe that, by and large, it would be an unreasonable interference with the operations of an agency to require it to write a wholly new program for the retrieval of information stored in a wholly different, or differently aggregated, form, in computer data files. It would not, on the other hand, be at all unreasonable for it to be required to supply to an applicant particular data which can readily be printed out without the necessity for a new program to be written at all. Between these extremes there are a number of intermediate situations which can be envisaged where modifications to an existing program are required to a greater or lesser extent. How each agency might handle such requests is essentially a decision for it to make: we make recommendations in Chapter 11 below which would enable it to recover an appropriate fee for the amount of computer and computer finance time involved, and no doubt this would be a relevant consideration for the agency to weigh. The only specific recommendation we make with respect to clause 15 is the modification of the language of sub-clause (2) to bring it into line with our proposed amendment to clause 13(3), discussed in Chapter 13 below. Although it may not make an important difference to the legal meaning of the sub-clause to express the requisite degree of interference as ‘substantial and unreasonable’ rather than merely ‘unreasonable’, we believe this kind of terminology will convey more precisely the spirit of what is intended, and help to ensure that this escape route is not relied upon by an agency more than is absolutely necessary.
The Report is of very limited assistance to the Court. It is, at best, equivocal in the context of interpreting s 17 of the FOI Act. In paragraph 8.31 the emphasis seems to be on the use of a computer. However, in paragraph 8.32 there is recognition of the view that “information would probably not be available if a new program for its retrieval had to be written”.
CONSIDERATION
The submission that s 17(1)(c)(i) focuses entirely on the availability of a computer, leaving s 17(2) to deal with any difficulties that may arise in the use of a computer in complying with a request, is rejected. Section 17(2) need not be considered unless s 17(1) is satisfied. In any event, a request that does not involve the creation of a new computer program may, nonetheless, still require a substantial and unreasonable diversion of the resources of an agency.
The ordinary meaning of s 17(1)(c)(i), looking at the plain words of the provision, is that an agency is able to produce a written document containing the requested information in discrete form by using a computer in a manner that is ordinarily available to it to retrieve or collate stored information. If a new computer program is required to be written to produce the document then a computer is not being used in a manner that is ordinarily available to the agency because an extraordinary step is required to be taken.
The interpretation which the Court favours is consistent with the approach taken to materially identical Victorian legislation by the former Administrative Appeals Tribunal of Victoria in Re Halliday and Corporate Affairs (1991) 4 VAR 327 at 337-338. See also, in the context of comparable New South Wales legislation, Steadfast Group Pty Ltd v WorkCover NSW [2010] NSWADT 23 at [25] to [28] in the decision of Molony P of the New South Wales Administrative Decisions Tribunal. The same approach has been taken by the Information Commissioner in Queensland; see Dimitrijev v Department of Education [1998] QICmr 14. The Tribunal relied on the above decisions in approaching the current issue in the manner it did. It was correct in so doing because, where similar legislation is expressed in the same or similar terms, consistent interpretation is desirable; see Strachan v Brown (2000) 9 TasR 291 at [20], per Underwood J.
CONCLUSION
The Tribunal gave a correct interpretation to the operation of s 17 of the FOI Act. The documents requested by Collection Point were not capable of being produced by the ATO by the use of a computer, being a use that is ordinarily available to the ATO for retrieving and collating stored information. Instead, to answer the request, the ATO would have been required to use a computer in an extraordinary manner, as compared to the ordinary processes available for the retrieval and collation of such material. Put simply, the ATO would be required to use a computer in a manner other than that which is ordinarily available to it. The contrary construction which focuses on the mere use of a computer gives no work for the words “ordinarily available” to do in s 17(1)(c)(i). So much is especially so in the context of the modern digital economy where the focus on computer systems is more critical than a mere examination of physical hardware.
ORDER
The Court will order that the appeal is dismissed with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 10 July 2012
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