Ellickson and Secretary, Department of Defence

This matter concerned an interlocutory application before the Administrative Appeals Tribunal (AAT) where the applicant sought the issuance of numerous summonses under section 40A of the *Administrative Appeals Tribunal Act 1975* (Cth). The applicant was challenging a decision by the Secretary, Department of Defence, to refuse access to certain documents under the *Freedom of Information Act 1982* (Cth). The respondent argued that the documents sought by the applicant were exempt under various provisions of the FOI Act, including ss 33(a)(i), 47E(d), and 47F.

The primary legal issue before the Tribunal was whether the proposed witnesses and the evidence they were expected to provide were relevant to the determination of the application under the *Freedom of Information Act 1982* (Cth). The Tribunal was required to exercise its discretion under s 40A of the AAT Act, which allows for the summoning of persons to give evidence or produce documents, considering the general principles applicable to the issuance of court subpoenas.

The Tribunal reasoned that the power to issue a summons is discretionary and that the primary consideration is relevance to the proceedings. Applying the established legal principles, the Tribunal held that a summons must be issued in good faith and for a purpose relevant to the review, meaning the evidence sought must reasonably be expected to throw light on the issues in the principal proceedings. In this instance, the applicant sought a summons for a psychologist to give evidence regarding an alleged assault and the actions of the Victoria Police and Australian Defence Force. The Tribunal found this proposed evidence to be irrelevant to the core issues of the FOI application, which concerned the impact of disclosure of the Australian Government Security Vetting Agency (AGSVA) processes and the personal information of the interviewing officer.

Consequently, the Tribunal refused the applications for the summonses.