FEDERAL COURT OF AUSTRALIA
Duncan v Chief Executive Officer, Centrelink [2008] FCA 56
CORRIGENDUM
IAN DUNCAN v CHIEF EXECUTIVE OFFICER, CENTRELINK
No WAD 297 of 2006FINN J
12 FEBRUARY 2008 (CORRIGENDUM 8 APRIL 2008)
ADELAIDE (HEARD IN PERTH)
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 297 OF 2006
BETWEEN:
IAN DUNCAN
ApplicantAND:
CHIEF EXECUTIVE OFFICER, CENTRELINK
Respondent
JUDGE:
FINN J
DATE OF ORDER:
12 FEBRUARY 2008
WHERE MADE:
ADELAIDE (HEARD IN PERTH)
CORRIGENDUM
1.On page 5 paragraph 13 of the Reasons for Judgment, delete the first sentence and replace with the following:
“It is common ground that the provisions of s 26 of the FOI Act (which relate to the provision of reasons for a decision refusing to grant access to a document to which access had been requested) are of no present relevance.”
2.On page 14 of the Reasons for Judgment, delete paragraph 34 and replace with the following:
“Having made all of the assumptions I have made in Mr Duncan’s favour, he has not satisfied me that to make the declaration he seeks has real practical consequences. On 25 July 2006 he sought reasons for the decision not to make the manual available for inspection by members of the public. His complaint in substance, though, was that at that time he personally was aggrieved by the decision. On his making of that request, the CEO was in all likelihood bound to furnish that statement for the reasons I have given. I do not consider it necessary here to enter upon the question whether because of the decision of 21 July 2006 to give him the manual under s 9 he ceased to be aggrieved even though he was not aware of this decision until 27 June 2006, i.e. two days after he made his request for reasons. As with Hill J in United Airlines at 606-607, I incline to the view that that duty, once enlivened, was “not abrogated” by the later provision to him of the manual. What the later provision of the manual did, though, was to eliminate the substance of his grievance. He had been provided by the internal review officer, in accordance with his s 9 entitlement, with the manual to which he claimed the right to inspect and purchase. Mr Duncan has put on extensive evidence alleging ongoing causes of grievance to him. His complaint now is essentially that Centrelink still has not identified all the documents falling within s 9(1). The present is not an application for preliminary discovery with all of the conditions required to be satisfied before “information discovery” is allowed: see St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at [26]. My sole concern, as ultimately was accepted at the hearing, was with the manual and its non-provision.”
I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Finn.
Associate:
Dated: 8 April 2008
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- AGLC
- Duncan v Chief Executive Officer, Centrelink [2008] FCA 56
- Case
- [2008] FCA 56
- Decision Date
CaseChat Overview and Summary
The court found that Centrelink had indeed omitted the FOI Manual from its published statement on documents available for inspection and purchase, despite it being a document that should have been included. Centrelink’s officer responsible for updating the statement admitted to overlooking the manual due to a focus on documents relating to Centrelink's core business. Additionally, the court noted that Centrelink had not provided Mr Duncan with the required statements of reasons for its decisions, failing to comply with the ADJR Act. The court considered whether Mr Duncan's requests for reasons were valid and whether Centrelink's failure to provide them justified judicial intervention.
The court concluded that while Centrelink's omission of the FOI Manual from its statement was an error, the primary issue of non-compliance with the ADJR Act's requirement for statements of reasons was not substantiated by evidence that Centrelink had failed to notify Mr Duncan of its opinion that his requests were invalid, as required by the Act. Without such notification, Mr Duncan could not seek judicial review under the ADJR Act for the latter two requests. The court dismissed Mr Duncan's application, finding that Centrelink's later inclusion of the FOI Manual in its updated statement and the waiver of fees for the manual rendered the application moot.
Orders
Orders of the court
1. The application be dismissed.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: FINN J
Mr Duncan has been in dispute with Centrelink apparently, on several fronts, for some time prior to the alleged “decision” giving rise to his present claim. Despite his counsel’s attempt to induce me to engage in some at least of the detail of those background matters, it is unnecessary for me to do so and I refrain from so doing. I need only refer to the following.(i)It is clear that Mr Duncan did not have the FOI Manual available to him for a period during which Centrelink took decisions that related to him. (ii)On 30 December 2005 he made a s 15(1) FOI request for the manual, noting in his request that this document was not available for inspection or purchase by the public. (iii)On 2 February 2006 that request was granted subject to the payment of a fee estimated to be $536.27. Mr Duncan did not act on that approval as such but sought further information concerning an aspect of the Manual. He subsequently indicated that he regarded the likely cost as prohibitive. (iv)He later made a request to have his personal records amended, that request in turn drawing attention to the fact that the FOI Manual had not been made available for inspection and purchase by the public under s 9 of the FOI Act. That request was refused, but was allowed on internal review, the review officer also indicating by letter of 21 July 2006 that pursuant to guidelines under s 9 of the Act, he would be able to inspect and purchase the FOI Manual. There is uncontested evidence that Mr Duncan claimed he did not receive this notification until 27 July 2006. For the purpose of this proceeding, I accept that such was the case.(v)On 25 July 2006 Mr Duncan wrote to the CEO asserting that the FOI Manual was prima facie a document required to be made available under s 9 of the FOI Act but that Centrelink had refused inspection of it on a number of occasions. Accordingly – “… in accordance with s.13(1) of the ADJR Act, I request that you ‘furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision’ by the ‘principal officer of an agency’ not to make Centrelink’s FOI Manual available for inspection by ‘members of the public’.”(Emphasis in original.)(vi)On 1 August 2006 Centrelink published a statement, as required by s 9(2)(b) of the FOI Act, of publications it had made available under s 9 for inspection and purchase by members of the public. The statement did not include a reference to the FOI Manual. In an affidavit filed in this proceeding, Ms Terry, the officer whose responsibility it was to update Centrelink’s s 9 statement, indicated that:“In preparing the section 9 statement I concentrated principally on documents relating to Centrelink’s core business of assessing entitlements under social security legislation. I did not give close consideration to the need to include manuals and like materials in making decisions under the FOI Act and overlooked Centrelink’s FOI manual which was not included.” The 1 August 2006 statement equally did not specify where copies of documents in the s 9 statement could be inspected and purchased. Ms Terry’s evidence on the compilation of this statement (which had last been published in October 2001) was that a minute was sent to approximately 78 Centrelink National Managers who were asked to identify documents within their branch responsibility that fell within the scope of s 9(1) but excluding “exempt matter”: see s 9(4). From the responses made the August 2006 statement was prepared. I refer below to the different procedure adopted in respect of the 2007 statement. (vii)Centrelink provided Mr Duncan with a full hard copy of the manual on 8 August 2006 and waived all fees in respect of it. (viii)On 7 September 2006, Mr Duncan wrote to the CEO raising the issue of the non-inclusion of the FOI Manual in the 1 August 2006 s 9 statement. His facsimile closed as follows: “… in accordance with s.13(1) of the ADJR Act, I request that you ‘furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision’ that Centrelink’s FOI Manual is not a document that is ‘used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment,’ or otherwise a document to which s.9 of the FOI Act ‘applies.’”He returned to this theme in a further facsimile to the CEO of 13 September 2006 which stated (in part):“The purported section 9 statement of 1 August 2006 does not provide any information on the location where documents listed therein may be inspected or purchased[.] The purported section 9 statement of 1 August 2006 does not list all documents defined at s.9(1). For example, it unlawfully excludes documents by the application of the rule set out at para 2.800 of Centrelink’s FOI Manual.In accordance with s.13(1) of the ADJR Act, I request that you ‘furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision’ pursuant to s.9(2) of the FOI Act by the principal officer of Centrelink to cause to be prepared a statement that does not list all documents defined by s.9(1), and does not state the location where listed documents may be inspected and purchased.”It is this “decision” in particular which appears to be the primary (but not exclusive) subject of the present application. I will for the sake of completeness deal compositely with the “decision” alleged in each of his requests. (ix)Mr Duncan filed his original application on 11 October 2006. As later amended, it asked for the statements of reasons sought in his requests, noted above, made on 25 July 2006, 7 September 2006 and 13 September 2006. The evidence of Centrelink is that it has not furnished Mr Duncan with any statement of reasons under s 13(2) in response to any of his three requests. Centrelink, though, did notify Mr Duncan on 4 October 2006 that as he had been sent a copy of the FOI Manual on 8 August 2006 there was no basis for his request for reasons made on 25 July 2006. There is no evidence before me that any such courtesy was given him in relation to his two subsequent requests notwithstanding the requirement in s 13(3) that if the person on whom a request is made is of the opinion that the requesting party was not entitled to make it, written notification is to be given to that party. Not having received such a notice under s 13(3), Mr Duncan cannot avail of the right given to a person who has received a s 13(3) notice to apply to the Court under s 13(4A) for an order declaring that he was entitled to make the latter two requests. (x)In her affidavit filed on 2 November 2007, Ms Terry indicated that on 31 August 2007 an updated s 9 statement was published which included the FOI Manual. A covering note was subsequently added on 21 September 2007 which indicated that the documents in the statement were available for inspection and purchase from Centrelink offices. Unlike with the 2006 statement, and “[i]n order to provide a more comprehensive statement”, the process adopted was exclusive not inclusive. The National Managers were asked to have identified any documents within their branch responsibility that should not be included in the s 9 statement and to provide reasons why those documents should be excluded. As Ms Terry observed this allowed her to rectify any omissions or errors that had been brought to her attention “including the omission of Centrelink’s FOI manual from the earlier statement.” CONSIDERATION