Endacott and Chief Executive Officer, Services Australia (Freedom of information)

[2022] AATA 2518

Endacott and Chief Executive Officer, Services Australia (Freedom of information) [2022] AATA 2518 (1 March 2022)

Division:FREEDOM OF INFORMATION DIVISION

File Number(s):      2021/4363

Re:Mark Endacott

APPLICANT

Chief Executive Officer, Services AustraliaAnd  

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:1 March 2022

Date of written reasons:         8 March 2022

Place:Adelaide

The Applicant has lodged an application for a review of a decision dated 30 June 2021. For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal dismisses the application under s 42A(4) of the Administrative Appeals Tribunal Act1975 because the subject of the application is not a reviewable decision and accordingly the Tribunal does not have jurisdiction to hear the application.

...........................[SGND].............................................

Senior Member B J Illingworth

Catchwords

PRACTICE AND PROCEDURE – JURISDICTION – Freedom of Information Act – Administrative Appeals Tribunal Act 1978 (Cth) – Tribunal Has No Jurisdiction – Section 42A(4)

Legislation

Administrative Appeals Tribunal Act 1987 (Cth)

Freedom of Information Act 1982 (Cth)

REASONS FOR DECISION

Senior Member B J Illingworth

1 March 2022

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for the decision have been transcribed by Epiq. Some minor amendments have been made to that transcript. Whereas those oral reasons, as amended, may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

……………[SGND]………………

Administrative Assistant Legal

Dated: 1 March 2022

Date of hearing:	1 March 2022 (by telephone)
Applicant:	Self-represented
Representative for the Respondent:	Will Sharpe, HWL Ebsworth Lawyers

ORAL DECISION OF MEMBER ILLINGWORTH    [10.44 am]

1.    SENIOR MEMBER:  On 30 April 2020 the applicant made a request of the respondent to access documents under the Freedom of Information Act 1982 (‘the FOI Act’). The Agency was required under that Act to make a decision in respect of the applicant's request by 1 June 2020 but failed to do so. Accordingly, pursuant to section 15AC(3)(a) of the FOI Act, the principal officer of the respondent was taken to have made a decision on 1 June 2020 refusing access to the requested documents which is a deemed refusal decision.

2.    On 1 July 2020 the Agency applied to the Office of the Australian Information Commissioner for an extension of time within which to make the decision which request was refused. 

3.    I have been taken to documents this morning that indicate that certain propositions were put to the Office of the Australian Information Commissioner to move forward with the matter but by that refusal the Agency was functus officio in relation to the application.

4.    On 29 July 2020 the Office of the Australian Information Commissioner wrote to the Agency advising that the applicant had requested the Information Commissioner conduct the review of the deemed refusal decision in addition to making preliminary inquiries with the Agency. 

5. On 13 August 2020 the Office of the Australian Information Commissioner notified the Agency that the Information Commissioner would review the deemed refusal decision and requested the Agency provide a statement of reasons in accordance with section 55E of the FOI Act.

6.    Thereafter the applicant was provided with certain documents which I need not detail for the purpose of this decision.  That happened on more than one occasion during the life of this matter before the Tribunal.

7. Moving forward to 18 March 2021 the Office of the Australian Information Commissioner issued the Agency with a notice of intention to recommend to the delegate of the Information Commissioner that he or she exercise a discretion not to continue to undertake the review under section 54W(b) of the FOI Act. But that was not a decision of the Information Commissioner.

8.    On 26 March 2020 the Agency advised the Office of the Australian Information Commissioner that it did not oppose the recommendation to the delegate.

9. On 30 June 2021 a delegate of the Information Commissioner, in response to the request for a statement of reasons pursuant to s 55E of the FOI Act, purported to make a decision under section 54W(b) of the FOI Act not to continue to undertake the IC review. The purported section 54W(b) decision was not to undertake a review as it was desirable that the IC reviewable decision be considered by the Tribunal. But that was not a decision of the Information Commissioner.

10. On 30 June 2021 the applicant filed an application for review of the decision dated 30 June 2021, made by a delegate of the Information Commissioner purportedly under section 54W(b) of the FOI Act.

11.  The respondent has now applied for the application for review to be dismissed on the basis that the Tribunal does not have jurisdiction.

12.  I will briefly mention the statutory framework that operates in relation to this matter and the jurisdiction of the Tribunal. 

13.  The jurisdiction of the Tribunal to review certain decisions is dependent upon an enactment providing power to the Tribunal to do so.  Part 4, Division 1 of the AAT Act is headed, "Applications for Review of Decisions," in which is contained section 25 and relevantly reads:

(1) 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.

14.  It is only those decision nominated by the enactment that can be the subject of an application for review to the Tribunal.

15. In the circumstances of this matter, the FOI Act relevantly makes provision for decisions to be reviewed by the Tribunal as follows,

Division 2—Tribunal reviewable decisions

57A Tribunal reviewable decisions—which decisions are

reviewable?

(1) An application may be made to the Tribunal for review of the

following decisions:

(a) a decision of the Information Commissioner under

section 55K on an IC review;

(b) if the Information Commissioner makes a decision under

paragraph 54W(b) (matters inappropriate for IC review)—the

IC reviewable decision in relation to which the Information

Commissioner makes the decision.

16. Section 55K of the FOI Act relevantly provides for a decision on IC review and reads:

Division 7—Decision on IC review

55K Decision on IC review—decision of Information Commissioner

(1) After undertaking an IC review, the Information Commissioner

must make a decision in writing:

(a) affirming the IC reviewable decision; or

(b) varying the IC reviewable decision; or

(c) setting aside the IC reviewable decision and making a

decision in substitution for that decision.

17. Section 55K(2) provides that in:

“implementing the decision on an IC review, the Information Commissioner may perform the functions, and exercise the powers, of the person who made the IC reviewable decision.” 

18.  In this matter the person who made the purported IC reviewable decision was purported to be the delegate of the Minister as evidenced in the delegate’s decision of 30 June 2021 albeit that that is not ultimately the decision that was made in relation to this matter as indicated by counsel during submissions today.

19. But as can be seen, the statutory scheme provides a three tier process. Namely, first there be a decision of the delegate of the Information Commissioner, the IC review, which in this matter is the delegate's decision purportedly made on 30 June 2021; second, that there be a decision of the Information Commissioner made under section 55K of the FOI Act which includes a decision made by the Information Commissioner under section 54W(b) of the FOI Act; and then, third, an application for review of the decision of the Information Commissioner to the Administrative Appeals Tribunal.

20. With respect to the current application before the Tribunal, the decision the subject of the application dated 30 June 2021, although arguably is not the reviewable decision, is not a decision made by the Information Commissioner. There has never been in this matter a decision of the Information Commissioner made under section 55K of the FOI Act which decision can then be reviewed by the Tribunal. That intermediate step is clearly missing irrespective of the question of what is, in fact, the correct reviewable decision.

21.  The reason for the applicant bringing the current application can be well understood upon reading the purported delegate's decision dated 30 June 2021 under heading, "Next Steps," The delegate wrote:

You now have 28 calendar days from the date of this notice to make an application for review of the IC reviewable decision to the AAT in accordance with section 57A of the FOI Act.

22. That is plainly wrong. It at the very least should read that the correct procedure was for the applicant to request the Information Commissioner review the decision of the delegate pursuant to section 55K of the FOI Act, which is the intermediate step required to be undertaken before an application for review of a decision can be brought before the AAT.

23.  Having been taken through the procedure of what has occurred in respect of this matter, it is disturbing that the applicant's application has been dealt with in the manner that it has and that it has taken some considerable period of time to even get to this stage without the Information Commissioner having undertaken the process obliged to be undertaken with respect to the legislation.  It also seems to have been a lack of general progress of this matter from the start when I note that there was, in fact, a deemed decision because a decision was not made by the Agency within the required timeframe under the legislation.  In any event, that does not assist the applicant. 

DECISION

24. I am satisfied that the decision dated 30 June 2021 is not a reviewable decision to be reviewed by the Administrative Appeals Tribunal and I order that the application for review be dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act.

END OF ORAL DECISION    [10.56 am]