GARNERS BEACH HABITAT ACTION GROUP And DEPARTMENT OF THE ENVIRONMENT, WATER, HERITAGE AND THE ARTS
[2009] AATA 974
•18 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 974
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4986
GENERAL ADMINISTRATIVE DIVISION ) Re GARNERS BEACH HABITAT ACTION GROUP Applicant
And
DEPARTMENT OF THE ENVIRONMENT, WATER, HERITAGE AND THE ARTS
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date18 December 2009
PlaceBrisbane
Decision The Tribunal refuses to dismiss the application.
.............Signed.................
Deputy President
CATCHWORDS
PRACTICE & PROCEDURE – dismissal of application – reverse FOI application – documents already released - frivolous & vexatious – whether any continuing utility given that documents released – public interest and potential for vindication held to amount to sufficient interest to preserve utility – application for dismissal refused
Hempel & Civil Aviation Safety Authority [2006] AATA 188
Administrative Appeals Tribunal Act 1975 (Cth) s 42B
REASONS FOR DECISION
18 December 2009 Deputy President P E Hack SC
The applicant, Garners Beach Habitat Action Group (the Group), is an environmental group which has opposed certain developments in Garners Beach in far northern Queensland. In late 2008 it made submissions to the respondent, the Department of the Environment, Water, Heritage and The Arts regarding a proposed residential development at Garners Beach.
In January 2009 the proposed developer sought access from the Department pursuant to the Freedom of Information Act 1982 (Cth) to submissions and other material in relation to the proposed development. The Department located 14 documents that came within the scope of the request. Some of the documents had been provided by third parties including two documents that had been provided by the Group. The Department consulted the third parties as it was obliged to under the Freedom of Information Act. The Group opposed release of two documents by letter dated 23 February 2009 but seemingly sent by e-mail the following day.
On 12 May 2009 a provisional decision was made to release all fourteen documents, some with deletions, including the two that concerned the Group. The Group was informed of the provisional decision and told of its right to seek an internal review of the decision. On 15 July 2009 the Group requested such a review. On 8 September 2009 the decision was affirmed on internal review. The Group was informed of the decision and of its right to seek a review of the decision in the Tribunal by an e-mail communication sent on 14 September 2009.
On 14 October 2009, that is, within the period of 30 days permitted for an application for review to the Tribunal, the Group lodged a letter in the Tribunal seeking such a review. There were some procedural difficulties associated with the lodging of that application. Initially it was not possible to identify the decision sought to be reviewed. Then the Tribunal was unable to “open” some documents sent electronically and the Tribunal requested further information from the Group in connection with its application to waive payment of filing fees. These matters were not resolved until 26 October 2009 on which day the letter constituting notice under s 29(11) of the Administrative Appeals Tribunal Act was sent to the Department.
Unfortunately, on 22 October 2009 the Department, then ignorant of the earlier making of the application, released the documents in issue to the developer. I record immediately that in my view it acted reasonably in doing so.
By letter dated 24 November 2009, supported by most helpful submissions, the solicitors for the Department made application for dismissal of the application under s 42B(1) of the Administrative Appeals Tribunal Act. The essence of the application was that, the documents having already been released, there was no utility in the proceedings and thus they ought be regarded in the legal sense, as frivolous and vexatious.
By virtue of s 42B(1)(a) of the Administrative Appeals Tribunal Act the Tribunal may dismiss an application “if it is satisfied that the application is frivolous or vexatious”.
The proposition advanced by the Department is that, even were the application to succeed, “the Tribunal could not make a decision that would change the fact that [the developer] now has access to the information that the Applicant contends should be exempt”. Thus, it is contended, any decision now by the Tribunal would be futile.
In Hempel & Civil Aviation Safety Authority[1] I said:
“There is a considerable body of jurisprudence in the Tribunal concerning applications that lack utility and, for that reason, may be regarded as being frivolous or vexatious. I am grateful to adopt the reasoning of Deputy President A M Blow OAM QC in Re Brian Reddish and Civil Aviation Safety Authority [1999] AATA 721. There, after considering Gowing (supra), Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118 and Re Williams and Australian Electoral Commission (1995) 38 ALD 366, the learned Deputy President concluded at paragraph [33] that,
‘an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant.’”
[1] [2006] AATA 188 at [42]
There were two decisions in issue in Hempel. The first was one requiring certain work to be undertaken on an aircraft, the other concerned the cancellation of a delegation. I said of these decisions[2]:
“In relation to the first decision the work required by the maintenance direction has been done and the direction was complied with on 30 April 2003. The aircraft is no longer owned by Duskedge. What decision could the Tribunal now sensibly make? No decision of the Tribunal could affect the criminal proceedings in which the applicant has been charged with contravening the maintenance direction. Setting aside the decision would not render invalid the original maintenance direction: cf. Lesi v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 27, 39 at paragraph [49].
The second decision is, if anything, a clearer example of an application that lacks any utility. That is so for two reasons. First, on the applicant’s case, he had relinquished the delegation before it was cancelled. But, more importantly, the delegation would have lapsed through the effluxion of time at the end of June 2004. There is no decision that the Tribunal could sensibly make in substitution for that already made that would have any practical utility.”
[2] Ibid at [43] – [44]
The present case is, in my view, distinguishable and the basis of that distinction is the policy purposed of the FOI legislation. It forms part of a suite of administrative law reforms introduced following the Kerr Committee Report in 1971 that were designed to permit a greater degree of transparency and accountability in the executive branch of the government. There is an evident public interest in ensuring that FOI decisions of the Department are open to objective scrutiny[3]. The decision may ultimately be affirmed, it may be set aside. The likely result does not matter for present purposes. What matters is that the scrutiny imposed by the statute ought not be frustrated by administrative oversight whether in the Tribunal or the Department. That remains the case, in my view, even if there might not be any practical utility in the proceedings.
[3] Cf. McKinnon v Pattison [2009] FCA 1421
It follows that I consider that the matter ought to proceed in the ordinary way and would refuse the relief sought by the Department.
Given that the developer appears to be a person whose interests may be affected by the decision arrangements should be made by the District Registrar to notify the developer of the fact of the application and the right to make application to be made a party to the proceedings.
I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .............Signed...........................................................
AssociateDate of Hearing 4 December 2009
Date of Decision 18 December 2009
Applicant Unrepresented
Solicitors for the Respondent Clayton Utz
2