FEDERAL COURT OF AUSTRALIA
Giddings v Australian Information Commissioner [2017] FCA 677
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Details
- Case
- [2017] FCA 677
- Decision Date
CaseChat Overview and Summary
The case of Giddings v Australian Information Commissioner involved Mr Giddings, who sought judicial review of a decision by the Australian Information Commissioner (AIC) to refuse to continue reviewing a decision made by the Australian Federal Police (AFP) under the Freedom of Information Act 1982 (Cth). The primary issue before the court was whether the Commissioner had taken an irrelevant consideration into account when deciding to discontinue the review process. Additionally, the court examined whether the AIC should be named as the respondent instead of the delegate who made the decision, considering the effect of s 34AB(1)(c) of the Acts Interpretation Act 1901 (Cth). Furthermore, the court assessed the grounds for closed court, non-publication, and suppression orders.
The court reasoned that it was appropriate to name the statutory office holder, the AIC, as the respondent in the litigation. This approach minimised the personal nature of the litigation and facilitated easier recognition of the general class of cases. The court found that the delegate's decision to discontinue the review was influenced by irrelevant considerations, specifically Mr Giddings' objections to the publication of the decision. The court held that the word "generally" in s 55K(8) of the FOI Act indicated that the Commissioner's decisions should be published to the general public, which aligns with the Act's educative purposes of promoting government scrutiny.
As a result, the court ordered that the AIC be named as the respondent in place of the delegate, Ms Rocelle Ago. The interlocutory application filed by Mr Giddings on 21 March 2017 was refused, but his application was granted in part. The decision of the delegate to discontinue the consideration of Mr Giddings' application was set aside, and the application was remitted to the AIC to be heard and determined according to law. The application was otherwise dismissed.
The court reasoned that it was appropriate to name the statutory office holder, the AIC, as the respondent in the litigation. This approach minimised the personal nature of the litigation and facilitated easier recognition of the general class of cases. The court found that the delegate's decision to discontinue the review was influenced by irrelevant considerations, specifically Mr Giddings' objections to the publication of the decision. The court held that the word "generally" in s 55K(8) of the FOI Act indicated that the Commissioner's decisions should be published to the general public, which aligns with the Act's educative purposes of promoting government scrutiny.
As a result, the court ordered that the AIC be named as the respondent in place of the delegate, Ms Rocelle Ago. The interlocutory application filed by Mr Giddings on 21 March 2017 was refused, but his application was granted in part. The decision of the delegate to discontinue the consideration of Mr Giddings' application was set aside, and the application was remitted to the AIC to be heard and determined according to law. The application was otherwise dismissed.
Orders
Orders of the court
1. The Australian Information Commissioner be named as the respondent to the proceeding in place of Ms Rocelle Ago.
2. The applicant’s interlocutory application, filed on 21 March 2017, be refused.
3. The applicant’s application be granted in part.
4. The decision of the delegate of the respondent to discontinue the consideration of the applicant’s application for review of a decision of the Australian Federal Police be set aside.
5. The applicant’s application for review of the decision of the Australian Federal Police be remitted to the respondent to be heard and determined according to law.
6. The application otherwise be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
In my view, it is better that the statutory office holder be named as the respondent in such circumstances. This renders less personal the litigation: cf Re Reference at 95 (Brennan J). It is also generally consistent with the view that, when naming a party, it is appropriate to refer to a person’s office, rather than the name of the person who held that office at the time the decision was made: see Kerr v Commissioner of Police (1977) 2 NSWLR 721 at 724–725 (Moffitt P, Hope and Samuels JJA agreeing); Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 191; [1998] FCA 1607 at pp 16–17 (Branson J); Brown v Rezitis (1970) 127 CLR 157 at 169 (Barwick CJ); Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 529 and 552; [2003] HCA 11 at [31] (McHugh J) and [111] (Kirby J). It also facilitates the easier recognition, from the title of the case, of the general class of case to which the litigation relates. The applicant is in no way disadvantaged by this course being adopted.BACKGROUND FACTS In October 2015, Mr Giddings applied to the AFP for access to various documents. His application was made under the FOI Act. In December 2015, the AFP determined to release seven documents which had been sought and to refuse access in part to 21 other documents. It refused any access to six further documents. In April 2016, Mr Giddings applied to the Commissioner to review the AFP’s decision. The Commissioner embarked on a review. In the course of the review, Mr Giddings raised concerns that the AFP had not addressed all parts of his original request. The case officer who was dealing with Mr Giddings’ application to the Commissioner referred these concerns to the AFP. In August 2016, the AFP made a revised decision under s 55G of the FOI Act. Mr Giddings continued to be denied access to much of the material to which he had sought access. Thereafter, Mr Giddings made a series of submissions to the Commissioner in which he challenged various aspects of the AFP’s reasons for the revised decision. In October 2016, a case officer advised Mr Giddings in writing that the Commissioner would proceed to make a decision on his application. She asked whether Mr Giddings would wish to be de-identified in any decision which the Commissioner might publish, setting out his reasons for his decision. “De-identification” would have involved the use of letters in place of the name of Mr Giddings and, presumably, the names of others with whom he was associated. Mr Giddings responded by expressing a wish to be de-identified but expressed concern that the published decision might contain material which he regarded as confidential or might infringe his rights to privacy. A senior case officer subsequently advised Mr Giddings in writing that any other references which might serve to identify him would also be avoided. That officer indicated that, in a de-identified decision, the Commissioner would quote and summarise the submissions of the parties that were relevant to his decision. The officer also foreshadowed that, if Mr Giddings maintained his wish that the decision not be published, the Commissioner would be likely to decline to continue with his review, relying on s 54W(a)(ii) of the FOI Act.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 55K deals with what the Commissioner is to do following the conduct of a review. It provides as follows: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.(2)For the purposes of implementing a 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.(3)A decision of the Information Commissioner on an IC review has the same effect as a decision of the agency or Minister who made the IC reviewable decision.Content of the decision(4)A decision on an IC review must include the following:(a)a statement of reasons for the decision;(b)a statement of the rights of the review parties to apply to the Tribunal for review of the decision under section 57A.(5)However, a decision on an IC review must not include:(a)information of the kind referred to in subsection 25(1); or(b)exempt matter.Note:Subsection 25(1) deals with information about the existence or otherwise of certain documents.Providing copy of decision(6)The Information Commissioner must give a copy of a decision on an IC review to each review party.Copy of decision prima facie evidence(7)A document is prima facie evidence of a decision on an IC review if:(a) the document purports to be a copy of the decision; and(b)the document purports to be certified by, or on behalf of, the Information Commissioner to be a true copy of the decision.Publication requirement(8)The Information Commissioner must publish a decision on an IC review to members of the public generally.CONSIDERATION At the time that the delegate made her decision to discontinue the processing of Mr Giddings’ application, all the submissions and other material needed for the making of a decision by the Commissioner had been made and assembled. The only perceived obstacle to the Commissioner making a decision and publishing it were the objections, made by Mr Giddings, to the publication of the decision and, specifically, to the potential content of any published reasons for the decision. Mr Giddings asserted that the Commissioner did not have to publish his decision to anyone other than him and the AFP. This contention was founded on a misconstruction of s 55K(8). Mr Giddings argued that the word “generally” meant that exceptions could be made to the requirement of publication to the public. The word “generally” appears as part of a composite phrase: “to members of the public generally”, which identifies a group of people to whom the Commissioner’s decisions are to be made available. That group may be described as “the general public”. Such a construction is consistent with the educative purposes of the Act, which are intended to promote scrutiny of the Government’s activities: see s 3 of the FOI Act. Had the draftsperson intended to qualify the obligations imposed on the Commissioner by s 55K(8), in the manner suggested by Mr Giddings, the word “generally” would have had to have been positioned between “must” and “publish” and, even then, may not have carried the asserted meaning.
Ratio Decidendi
Legal Principle Established
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