Garry Druett and Centrelink
[2012] AATA 390
•31 May 2012
[2012] AATA 390
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1600
Re
Garry Druett
APPLICANT
And
Centrelink
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date of hearing 31 May 2012 Date of written reasons 26 June 2012 Place Sydney For the reasons given orally at the hearing of this matter, the Tribunal decides that it does not have jurisdiction to hear this application for review.
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Ms G Ettinger, Senior Member
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – oral decision – freedom of information – Applicant had not sought internal review or review by the Information Commissioner – Tribunal has no jurisdiction to hear the application for review.
Legislation
Freedom of Information Act 1982 ss 47F(5), 53A(f), 54, 54L, 57A
REASONS FOR DECISION
Ms G Ettinger, Senior Member
26 June 2012
BACKGROUND
On 26 March 2012 Mr Druett made a written request to Centrelink for access to a job capacity report lodged in September 2011, and for information in that document to be provided to a qualified person, in this case his son’s treating physician. The Tribunal has taken this document into evidence as Exhibit A1.
On 30 March 2012 Mr Druett provided further particulars to an Authorised Freedom of Information Officer (the Officer) at Centrelink by telephone.
On 11 April 2012 the Officer sent Mr Druett a letter explaining that the final decision about the extent of access to the requested document was a matter for the nominated qualified person – Mr Druett’s son’s treating physician – to determine. If Mr Druett was unhappy about the decision, he could seek review under the Freedom of Information Act 1982 (the Act) through internal review by Centrelink, or through the Information Commissioner.
Mr Druett did not seek internal review or review by the Information Commissioner, and on 24 April 2012 lodged an application for review with the Administrative Appeals Tribunal. I heard Mr Druett’s application on 31 May 2012 in order to determine whether this Tribunal has jurisdiction to deal with it. Immediately at the conclusion of the hearing I made a finding that the Tribunal does not have jurisdiction to hear this application, and gave my reasons orally to the parties. Mr Druett has exercised his right to request written reasons which follow.
DOES THE TRIBUNAL HAVE JURISDICTION TO HEAR THE APPLICATION?
The decision made by Centrelink is a decision under s 47F(5) of the Act to give access to a document to a qualified person. A decision under s 47F(5) is deemed by s 53A(f) to be an access refusal decision.
If an access refusal decision is made, the Applicant has a right to seek internal review of that decision under s 54 or may seek review of the decision by the Information Commissioner under s 54L.
Centrelink made submissions at the hearing that while a request for internal review should be lodged within 30 days from the date of the original decision, or within 15 days of the appointment with the medically qualified person, that Centrelink can extend the deadline, and would be content to receive the application for internal review now.
Since the reforms to the FOI Act in November 2010, the Tribunal does not have jurisdiction to review a decision made under the FOI Act unless the Applicant has sought review by the Information Commissioner first. The reviewable decision in proceedings before the Tribunal, under s 57A of the Act, is a decision of the Information Commissioner.
Mr Druett has not taken steps to seek either internal review, or review by the Information Commissioner before lodging his application with the Tribunal.
Mr Druett may ask Centrelink for an internal review first, and if he is dissatisfied, he may make an application to the Information Commissioner. The alternative is for Mr Druett to make an application directly to the Information Commissioner and bypass internal review.
Once there is a decision by the Information Commissioner, and if Mr Druett was dissatisfied with the outcome, only then could he make an application to the Administrative Appeals Tribunal, at which point it would have jurisdiction to hear the matter.
Mr Druett has not had the decision reviewed by the Information Commissioner; as a result, the Tribunal has no jurisdiction to hear the matter.
DECISION
For the reasons given orally at the hearing of this matter, the Tribunal decides that it does not have jurisdiction to hear this application for review.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
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Associate
Dated 26 June 2012
Date of hearing 31 May 2012 Applicant In person Respondent Louise Buchanan, Australian Government Solicitor
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