Fitzgibbon v Turnbull

Case [2017] FCA 968

FEDERAL COURT OF AUSTRALIA

Fitzgibbon v Turnbull [2017] FCA 968

File number: VID 449 of 2017
Judge: ROBERTSON J
Date of judgment: 17 August 2017
Catchwords: ADMINISTRATIVE LAW – freedom of information – application for access to document (Coalition Agreement) – claim by Minister that the document was not an official document of the Minister within the meaning of s 4(1) of the Freedom of Information of Act 1982 (Cth) – application to the Administrative Appeals Tribunal for review of a decision by the Information Commissioner holding that the document sought was not an official document of a Minister – applicant applied at a directions hearing in the Tribunal for an order that his legal representatives be allowed to inspect the document as a matter of procedural fairness under s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) – Tribunal had not at that stage required the document to be produced for inspection and the document had not been voluntarily produced to the Tribunal – at that stage the Tribunal had not otherwise proposed to have regard to the contents of the document – whether the Tribunal erred in its interlocutory decision that it did not have the power to order that the applicant’s legal representatives be allowed to inspect the document and, if the Tribunal did have that power, that it would decline to exercise it – Held: application for judicial review dismissed  
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 35, 37, 39

Freedom of Information Act 1982 (Cth) ss 4(1), 15, 55K, 57A, 63, 64

Cases cited:

Day v Collector of Customs [1995] FCA 1245; 57 FCR 176

News Corporation Limited v National Companies & Securities Commission [1984] FCA 446; 5 FCR 88

O’Sullivan v Repatriation Commission [2003] FCA 387; 128 FCR 590

Potter v Minahan [1908] HCA 63; 7 CLR 277

Re Arnold Bloch Liebler & Co and Commissioner of Taxation [1984] AATA 123; 6 ALD 62

Re Carver and Department of the Prime Minister and Cabinet [1987] AATA 50; 6 AAR 317

Re Dunn and Department of Defence [2004] AATA 1040; 84 ALD 419

Re Witheford and Department of Foreign Affairs[1983] AATA 283; 5 ALD 534

State Electricity Commission of Victoria v Wright & Administrative Appeals Tribunal (Supreme Court of Victoria, 20 November 1997, unreported)

Trkulja v Google Inc (No 3) [2011] VSC 503
Date of hearing: 17 August 2017
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 85
Counsel for the Applicant: Mr MLL Albert
Solicitor for the Applicant: Maurice Blackburn Lawyers
Counsel for the First Respondent: Mr T Brennan
Solicitor for the First Respondent: Corrs Chambers Westgarth
Counsel for the Second Respondent: The Second Respondent did not appear.

ORDERS

VID 449 of 2017
BETWEEN:

JOEL FITZGIBBON

Applicant
AND:

MALCOLM TURNBULL, PRIME MINISTER OF AUSTRALIA

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

17 AUGUST 2017

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AGLC
Fitzgibbon v Turnbull [2017] FCA 968
Case
[2017] FCA 968
Decision Date

CaseChat Overview and Summary

In the case of Fitzgibbon v Turnbull, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) regarding the interpretation and application of the Freedom of Information (FOI) Act 1982 (Cth) and the Administrative Appeals Tribunal Act 1975 (Cth). The applicant, Mr. Fitzgibbon, sought access to the Coalition Agreement, which he argued was an official document of a Minister within the meaning of the FOI Act. The Information Commissioner had previously affirmed a decision by a Minister that the Coalition Agreement was not an official document, and the AAT upheld this decision. The central legal issues before the court were whether the AAT erred in its determination that it did not have the power to order the inspection of the Coalition Agreement by the applicant’s legal representatives and whether the AAT's interpretation of the relevant provisions of the FOI Act and the AAT Act was correct.

The court found that the AAT did not err in its decision that it lacked the power to order the inspection of the Coalition Agreement by the applicant’s legal representatives. The court held that the AAT’s interpretation of its powers under section 39 of the AAT Act was consistent with the statutory framework, particularly as it related to the stage of the proceedings at which the request was made. The court noted that the AAT had not yet required the document to be produced for inspection, nor had it proposed to have regard to the document's contents. Furthermore, the court agreed with the AAT that the norm prescribed by section 39(1) of the AAT Act was for the benefit of a party to a proceeding and did not operate for the benefit of a party to a non-proceeding. Consequently, the court concluded that the AAT did not fail to comply with the procedural fairness norm without first determining that the Coalition Agreement was an official document of the Minister. The court also found that the AAT's construction of the relevant provisions of the FOI Act and the AAT Act was appropriate and did not err in law.

In light of these findings, the court dismissed the applicant’s appeal and originating application. The court ordered that the applicant pay the first respondent’s costs, as agreed or as taxed. The court's decision underscored the importance of the statutory framework governing FOI requests and the AAT's role in interpreting and applying these provisions, particularly in relation to procedural fairness and the scope of the AAT's powers under the AAT Act.

Orders

Orders of the court

1. The applicant is granted leave to rely on his Second Amended Notice of Appeal and Originating Application dated 11 August 2017.

2. That application is dismissed.

3. The applicant is to pay the costs of the first respondent, as agreed or as taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is not necessary to deal with ground 2 of the first respondent’s notice of contention. My preliminary view is that the Tribunal had authority to decide whether or not the document is an official document of the Minister, pursuant to s 58 of the FOI Act: see for example s 64(1) read with s 64(5). A request under s 15 of the FOI Act may be unsuccessful, but my tentative view is that the character of the document is a matter for the Tribunal to decide. Counsel for the first respondent accepted that the Tribunal was obliged to decide whether the Coalition Agreement is or is not an official document of the Minister. In my opinion, it is not apposite to describe that duty as the exercise of no more than a preliminary decision as to the Tribunal’s jurisdiction. I do not accept the first respondent’s submission that whether or not the document is an official document of a Minister is a jurisdictional fact.Conclusion and orders For these reasons I do not accept that s 39 of the AAT Act requires that the applicant’s legal representatives be given access to the Coalition Agreement at this stage of the proceedings in the Tribunal. In my opinion the Tribunal did not err in concluding, at [35], that it did not have the power to order that Mr Fitzgibbon’s legal representatives be allowed to inspect the Coalition Agreement and that if the Tribunal did have that power, it would decline to exercise it, reading what the Tribunal said at [32]-[34] as to how it would exercise its discretion if it had one as referable to the stage of the proceedings reached in the Tribunal. The Tribunal took into account s 64 of the FOI Act as informing its discretion and I have concluded that it did not err in its construction of s 64 read with s 39 of the AAT Act. Indeed the Tribunal’s view about s 39 of the AAT Act was also referable to the stage of the proceedings reached in the Tribunal. There is much force in the first respondent’s submission that this application is premature in the sense that the applicant cannot successfully contend that at this stage of the Tribunal’s proceedings he has been denied procedural fairness. I do not accept the applicant’s submission that I should proceed on the basis that there will be no further steps before the final hearing in the Tribunal. The applicant’s second amended notice of appeal and originating application is dismissed. Counsel for the applicant accepted that in those circumstances costs should follow the event and I therefore order that the applicant pay the first respondent’s costs, as agreed or as taxed.

Ratio Decidendi

Legal Principle Established

The first respondent submitted that if the Coalition Agreement is not an official document of a Minister, there was no request within the meaning of s 15(1) of the FOI Act with the result that there has not been a decision of the Information Commissioner under s 55K and the Tribunal did not have jurisdiction. In that event, the first respondent submitted, the applicant was not a person who has applied to the Tribunal within the meaning of s 60(3)(a) of the FOI Act and therefore was not a party to a proceeding before the Tribunal within the meaning of s 60(3) of the FOI Act or s 30 of the AAT Act. The norm prescribed by s 39(1) of the AAT Act was for the benefit of a party to a proceeding and did not operate for the benefit of a party to a non-proceeding. It could not be shown that the Tribunal had failed to comply with that norm without first showing that the Coalition Agreement was an official document of a Minister and s 39 would only be engaged upon completion of the exercise of the preliminary jurisdiction with a determination that jurisdiction was in fact engaged.Consideration The necessary starting point is the terms of the FOI Act: the Tribunal was dealing with an application under s 57A of that Act. By s 15, a person who wishes to obtain access to an official document of the Minister may request access to the document. The phrase “official document of a Minister” is defined in s 4(1) by reference to whether a document that is in the possession of the Minister is in the Minister’s possession in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State. By s 26, where a decision is made refusing to grant access to a document in accordance with the request, the decision-maker is to cause the applicant to be given notice in writing of the decision. In the present case, as found by the Tribunal at [5], a decision to refuse the request on the grounds that the document was not an official document of the Minister and was therefore not a document to which the applicant had a right of access under the FOI Act was made on 8 December 2015. On 13 January 2016, the applicant sought review of that decision under s 54L of the FOI Act by making an application to the Information Commissioner. On 7 December 2016, the Information Commissioner affirmed the decision of 8 December 2015, acting under s 55K of the FOI Act. Under s 57A of the FOI Act, an application may be made to the Tribunal for review of the decision of the Information Commissioner under s 55K on an IC review, as defined in s 4(1) by reference to s 54G. Such an application was made to the Tribunal on 23 December 2016. Section 60 of the FOI Act sets out who are the parties to a proceeding before the Tribunal for a review of the decision. Section 61A sets out modifications to various provisions of the AAT Act. Section 63 of the FOI Act makes provision for the determination by the Tribunal as to whether it is desirable to make an order or orders under ss 35(2), (3) or (4) of the AAT Act and requiring the Tribunal to have regard to the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate. It was common ground that s 63 did not apply in terms to a document in the possession of the Minister that is claimed by the Minister not to be an official document of the Minister.