Gilligan and Director-General, National Archives of Australia (Freedom of information)

Gilligan and Director-General, National Archives of Australia (Freedom of information) [2022] AATA 2150 (4 July 2022)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/4582

FREEDOM OF INFORMATION DIVISION )
Re: Michael Francis Gilligan
Applicant

And: Director-General, National Archives of Australia
Respondent
DIRECTION
TRIBUNAL:  Mr S. Webb, Member
DATE OF CORRIGENDUM:            7 July 2022
PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.Amend the division on the cover page of the decision from “General Division” to “Freedom of Information Division”.

…………[sgd]………..
Mr S. Webb, Member
AppID:  Gilligan and Director-General, National Archives of Australia
MatterType:    Freedom of information
Division:GENERAL DIVISION
File Number(s):     2021/4582
Re:Michael Gilligan
APPLICANT

Director-General, National Archives of AustraliaAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:4 July 2022
Place:Canberra

The Tribunal has jurisdiction to review the decision deemed to have been made on 21 October 2017 under s 40(8) of the Archives Act 1983 and the decision made on 25 October 2021 under s 40(12) of that Act.
The Respondent’s application for dismissal of the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 is refused.
………..[sgd]……….
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – request for access to records – decision not made within consideration period – deemed decision – allowance of additional time to deal with the request – alleged destruction of records – conduct of searches for records – ambit of Tribunal’s jurisdiction where records identified have been destroyed or are not able to be found – jurisdiction conferred to review decision in respect of access to a record – issues of practicality not determinative of jurisdiction – Tribunal has jurisdiction – grounds for dismissal not made out – dismissal application refused
Legislation
Administrative Appeals Tribunal Act 1975, ss 3, 25, 29, 42A, 42B, 43
Archives Act 1983, ss 2A, 3, 3C, 5, 6, 24, 31, 40, 42, 43, 44, 51, 64
Cases
Bennett v CEO Australian Customs Service [2004] FCAFC 237
Frugtniet v Australian Security and Investments Commission [2019] HCA 16
Hocking v Director-General of the National Archives of Australia [2020] HCA 19
Morris and Director-General, National Archives of Australia [2016] AATA 679
Staats and National Archives of Australia [2009] AATA 598
REASONS FOR INTERLOCUTORY DECISION
Mr S. Webb, Member
4 July 2022

Dr Michael Gilligan applied to the National Archives of Australia (Archive) for access to certain Department of Defence (Defence) records. The application was not dealt with in the time allowed. Much time elapsed. Dr Gilligan pressed his request for access and applied to the Tribunal for review. In the course of the resulting proceedings, the Archive made a decision to refuse his request on grounds the records were destroyed.
Subsequently, the Archive questioned the ambit of the Tribunal’s jurisdiction and requested dismissal of the application.
These issues, alone, are the subject of this interlocutory decision.
Facts
On 22 July 2017, Dr Gilligan applied to the Archive for access to the agenda and minutes of the Defence Force Structure Committee and the Defence Force Development Committee in 1986 and 1987.[1]
[1] T3.
On 26 July 2017, a Reference Officer of the Archive provided the following information to Dr Gilligan:
Although these records are in the ‘open period’ and are thus eligible for release under the Archives Act 1983, they are still physically held by the Department of Defence. As such, we have submitted applications on your behalf to the Department of Defence, asking them to provide a list of agenda and minutes of these two committees for the period 1986-1987…[2]
[2] T4.
On 31 October 2017, Dr Gilligan narrowed his request to the Defence Force Structure Committee.[3]
[3] T6, folio 28.
On 8 April 2021, Dr Gilligan wrote to the Archive to press his request, stating:
… I am left without any response to this request after a number of years. I have looked at your process for internal reconsideration… It does not appear to apply to this case of a request apparently being ignored.
…
I would be grateful if you could advise me how to proceed with accessing these valuable Australian records as intentioned by Archives Act 1983.[4]
[4] T7, folio 30.
On 9 April 2021, the Archive Manager of Reference Services provided Dr Gilligan with the following information:
We have not received a satisfactory response from the Department to your application for access to records of the Defence Force Structure Committee. They have not been able to locate the records as yet, but we believe that these records should still exist and that they should be able to be found and transferred to [the Archive]. We’re investigating other avenues we could use to pursue your application and prompt further action from the Department…
… as an access decision has not yet been made, you cannot request an internal reconsideration of the decision. However, as we have not been able to respond to your application within 90 business days, you do have an option to lodge an appeal with the Administrative Appeals Tribunal…[5]
[5] T8.
On 8 July 2021, Dr Gilligan lodged an application for review by the Tribunal and also applied for an extension of time in which to do so.[6]
[6] T1.
On 22 July 2021, the Tribunal granted Dr Gilligan an extension of time in which to make the application for review. The proceedings then commenced.
On 21 September 2021, under s 40(12) of the Archives Act 1983 (Archives Act), the Archive requested additional time in which to deal with Dr Gilligan’s request for access.
On 29 September 2021, the Tribunal decided to grant this request and ordered the Archive to inform Dr Gilligan of its decision by 26 October 2021, whereupon he was ordered to inform the Tribunal if he wanted the decision included in the Tribunal’s review.
On 25 October 2021, an Assistant Director of the Archive issued a decision (Access Decision) in the following terms:
Decision
I have determined that the records have been destroyed under General Disposal Authority 14. This authority is a legal instrument by which the Archives authorises the disposal of Commonwealth records under section 24 of the Archives Act.
The findings of facts
A search for the records created by Defence and in the custody of the Archives was undertaken. As no relevant records in the custody of the Archives were located, a request was sent to Defence to conduct a search for the records.
Following a search of physical files and electronic records, Defence identified the following records as relevant to the access request:
• 88/32627 – Force structure committee meetings – DNF-A Aspects
• 148/8/377 – Five year Defence program 1983/1984- 1987-1988 – Force structure committee agenda and minutes
• 87/39765 – Force structure committee meetings 1985-87 – DCE-AF Aspects
National Reference Service | PO Box 4924, Kingston ACT 2604 e [email protected] naa.gov.au
• 110/5/10 – Defence Force structure committee – agenda and meetings
• 85/9559 – Force structure committee meetings – 1985/86 ASMAT-N Aspects
• 110/1/279 – Force structure committee agenda/ minutes – DCE-AF Aspects
• 110/2/166 – Defence Force structure committee meetings – DGAW-AF Aspects
• 110/5/11123 – Force structure committee meetings- DINF-A Aspects
The records listed above were destroyed under GDA14. GDA14 is a General Disposal Authority for General Administrative Records that was issued on 18 October 1990.
Defence identified two further records:
• 110/5/1511 – Force structure committee meetings on NPB1114 – new construction submarine (NCS/M) – NCS/MPD aspects
• 110/5/158 – Force structure committee meetings – ASSTA aspects.
Upon examination, it was determined that the first of the above records was created in 1976 and the second created in 1981-1982, outside of the date range of the records requested.
Reasons for decision
I am satisfied that all reasonable attempts have been made to locate the records and based on the advice of Defence and the evidence available to me, I am satisfied that the records were lawfully destroyed in accordance with GDA14.
Review of decision
In Staats and National Archives of Australia [2009] AATA 598 Senior Member Constance held there is no provision in the Archives Act which empowers the [AAT] to review a decision of the Archives that no relevant record can be identified. Although the Archives considers that there is no review available in the AAT of this decision, I note in this case you have already made an application for review.
On 3 November 2021, Dr Gilligan notified the Tribunal he wanted the review to include the Access Decision.
Subsequently, each party was directed to file written submissions addressing the jurisdictional issues raised by the Archive and its request for dismissal of the application. The parties were heard in two interlocutory hearings and time was allowed for further work to be done, by mutual agreement, and for further submissions to be made.
In the result, Dr Gilligan informed the Tribunal he intended to press on with his application.
Consequently, it is necessary to determine the Tribunal’s jurisdiction in respect of Dr Gilligan’s application and to determine the Archive’s application for dismissal of the application.
Statutory framework
In order to determine the Tribunal’s jurisdiction, it is necessary to refer to the statutory framework under which the decision was made and to the character of the decision.
At this point it is important to observe the Tribunal does not exercise power at large. It exercises jurisdiction conferred upon it by other enactments for the purposes of s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act), which relevantly provides:
(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.
(2) …
(3) Where an enactment makes provision in accordance with subsection (1)
…, that enactment:
(a) shall specify the person or persons to whose decisions the
provision applies;
(b) may be expressed to apply to all decisions of a person, or to a
class of such decisions; and
(c) may specify conditions subject to which applications may be made.
Under s 43(1) of the AAT Act, for the purposes of reviewing a decision, it may exercise the same powers and is subject to the same constraints, and it must address the same statutory question, as the person who made the decision under review.[7]
[7] Frugtniet v Australian Security and Investments Commission [2019] HCA 16, per Kiefel CJ, Keane and Nettle JJ at [14]-[15].
The Tribunal’s jurisdiction to review decisions under the Archives Act is conferred by s 43 of that Act, in which s 43(1) is of particular relevance in this case:
(1) Subject to this section, an application may be made to the Administrative
Appeals Tribunal for a review of a decision of the Archives in respect of access
to a record, being:
(a) a decision refusing to grant to the applicant access to the record
on the ground that the record is an exempt record or is a
Commonwealth record to which Division 3 does not apply;
(b) a decision refusing to grant an extension of partial access to the
record on the ground that the record is an exempt record and it is not
practicable to make arrangements for giving the further access
desired by the applicant in a form that would not disclose information
or matter by reason of which the record is an exempt record;
(c) a decision refusing to grant to the applicant access to the record
on the ground that the record has been withheld from public access
pending examination of the record under section 35;
(d) a decision refusing to grant to the applicant access to the record
on the ground that a determination has been made under
section 37 that the record is to be withheld from public access or
refusing to grant to the applicant access to the record otherwise
than on specified conditions determined under that section;
(e) a decision refusing to grant to the applicant access to the record in
a particular form by reason of paragraph 36(4)(a), (b) or (d); or
(f) a decision refusing to allow a further period for making an
application under subsection 42(1) for a reconsideration of a decision.
(2) …
In Tribunal review proceedings pursuant to s 43 of the Archives Act, the Tribunal may exercise the powers set out in s 44 and the Archive bears the onus set out in s 51.
As can be seen, the breadth of s 43(1) is tempered by paragraphs 43(1)(a) to (f) which set out the kinds of decision that are susceptible to review. Furthermore, the phrase a decision of the Archives in respect of access to a record is to be construed in the statutory framework the Archives Act sets out for making decisions about the granting of public access to records within the archival resources of the Commonwealth, as defined in s 3(2)[8] and determined by the Director-General under s 3C.
[8] Hocking v Director-General of the National Archives of Australia [2020] HCA 19 (Hocking), per Keifel CJ, Bell, Gageler and Keane JJ at [38].
The objects of the Archives Act are set out in s 2A:
The objects of this Act are:
(a) to provide for a National Archives of Australia, whose functions
include:
(i) identifying the archival resources of the Commonwealth; and
(ii) preserving and making publicly available the archival
resources of the Commonwealth; and
(iii) overseeing Commonwealth record‑keeping, by determining
standards and providing advice to Commonwealth institutions;
and
(b) to impose record‑keeping obligations in respect of Commonwealth
records.
The functions of the Archive are set out more expansively in s 5(2), including:
(2) The functions of the Archives are, subject to this Act:
(a) to ensure the conservation and preservation of the existing and
future archival resources of the Commonwealth; and
(b) to encourage and foster the preservation of all other archival
resources relating to Australia; and
(c) to promote, by providing advice and other assistance to
Commonwealth institutions, the creation, keeping and
management of current Commonwealth records in an efficient and
economical manner and in a manner that will facilitate their use as
part of the archival resources of the Commonwealth; and
(d) to determine the material that constitutes the archival resources of
the Commonwealth; and
(e) to have the care and management of Commonwealth records,
other than current Commonwealth records, that:
(i) are part of the archival resources of the Commonwealth; or
(ii) ought to be examined to determine whether they are part of
those archival resources; or
(iii) are required to be preserved (other than permanently
preserved); and
…
(j) to make Commonwealth records available for public access in accordance with this Act and to take part in arrangements for other access to Commonwealth records; and
...
Under s 6, the Archive has power to do all things that are necessary or convenient to be done in performing its functions, including the survey, appraisal, accessioning, arrangement, description, indexing, disposal or destruction of Commonwealth records.
The terms Commonwealth record, current Commonwealth record and record are given meaning in s 3(1):
Commonwealth record means:
(a) a record that is the property of the Commonwealth or of a Commonwealth
institution; or
(b) a record that is to be deemed to be a Commonwealth record by virtue of a
regulation under subsection (6) or by virtue of section 22;
but does not include a record that is exempt material.
current Commonwealth record means a Commonwealth record that is required to be readily available for the purposes of a Commonwealth institution, other than purposes under this Act.
record means a document, or an object, in any form (including any electronic form) that is, or has been, kept by reason of:
(a) any information or matter that it contains or that can be obtained
from it; or
(b) its connection with any event, person, circumstance or thing.
The definition of Commonwealth record applies to a record that is the property of the Commonwealth or of a Commonwealth institution, or that is deemed to be a Commonwealth record.[9] It is cast in the present tense and includes a current Commonwealth record, but it excludes exempt material as defined in s 3(1). A record is a tangible thing which becomes a record by virtue of it being “kept by reason of” its informational content or its connection with an event, person or circumstance, whereupon the keeping of the thing for such a reason is to maintain the physical integrity of the thing for that reason.[10] The existence of a record is an objective question of fact which must ordinarily turn on the applicable system of record keeping.[11]
[9] Hocking, per Keifel CJ, Bell, Gageler and Keane JJ at [40]-[44].
[10] Hocking, per Keifel CJ, Bell, Gageler and Keane JJ at [72].
[11] Ibid at [72]-[73].
The word property in the definition of Commonwealth record may best be understood to mean a legally endorsed concentration of power to control the physical custody of the record.[12] As the majority made clear in Hocking’s case, it is the Commonwealth’s power to control the physical custody of a record that underlies the conception of property for the purposes of the legislative scheme:
Underlying the legislative scheme is an expectation that a record the physical custody of which is within the lawful power of control of the Commonwealth as a body politic or of a Commonwealth institution as a functional unit of government will in the regular course of administration be kept in the actual physical custody of a Commonwealth institution. Within the Commonwealth institution there will be a "person responsible for the custody of the record". That person will be compelled to transfer the record to the Archives if the record is determined by the Director-General to be part of the archival resources of the Commonwealth. The circumstance that a record is in fact kept in the actual physical custody of a Commonwealth institution lacking in legal personality makes it highly likely that the true owner of the record will be the Commonwealth as a body politic. But the circumstance cannot exclude the possibility that the true owner of the document is some other person.[13]
[12] Ibid at [95].
[13] Ibid at [99].
Provision is made in s 27 for the transfer of certain Commonwealth records to the Archive and under s 64 for Archive materials to be kept by a person.
Provision is also made in s 24 for the destruction or other disposal of Commonwealth records in certain circumstances, by exception from the general prohibition on destroying Commonwealth records set out in s 24(1).
Where a record lawfully passes out of the physical custody of the Commonwealth, it ceases to be a Commonwealth record. And in those circumstances, the access regime under Div 3, Pt V would no longer apply to it.[14]
[14] Ibid at [102].
Public access to records within the archival resources of the Commonwealth is subject to Part V of the Archives Act. Under s 31(1), the Archive is required to make available for public access records which are in the public access period, as defined in s 3(1), and under the care of the Archive or a Commonwealth institution. The term Commonwealth institution is defined in s 3(1) to include a Department, which by definition includes a department of the Australian Public Service.
Application for public access to a record may be made under s 40, which relevantly provides:
(1) This section applies in relation to an application to the Archives for access, or
for an extension of partial access, to a record referred to in section 31, being
an application:
(a) in writing;
(b) expressed to be made in accordance with this section;
(c) specifying an address in Australia at which notices under this Act
may be sent to the person making the application; and
(d) providing such particulars, if any, concerning the record to which it
relates as are contained in any index or guide published by the
Archives.
…
(3) The Archives must take all reasonable steps to notify the applicant of a decision
on an application to which this section applies:
(a) as soon as practicable after the day the application is received by
the Archives; and
(b) before the end of the consideration period for the application under
section 40A.
…
(8) Where:
(a) an application to which this section applies has been made;
(b) the consideration period for the application under section 40A has
ended; and
(c) notice of a decision on the application has not been received by
the applicant;
the Archives shall, for the purpose of enabling an application to be made to the Tribunal under section 43, be deemed to have made, on the last day of that period, a decision refusing to grant access to the record on the ground that the record is an exempt record.
…
(11) Where, after an application has been made to the Tribunal by virtue of
subsection (8) but before the Tribunal has finally dealt with the application, a
decision in the matter to which the application relates is given by the Archives,
being a decision that is not satisfactory to the applicant, the Tribunal may, at the
request of the applicant, treat the proceedings as extending to a review of that
decision in accordance with this Part.
(12) Before dealing further with an application made to it by virtue of subsection (8),
the Tribunal may, on the application of the Director‑General, allow further time
to the Archives to deal with the application for access.

As can be seen, an access decision is to be made within the consideration period worked out under s 40A and, where that does not occur, a decision refusing access is deemed to have been made. The consideration period in this case is 90 days after the day on which Dr Gilligan’s request for access was received by the Archive: 21 October 2017, on which day a decision to refuse access was deemed to have been made under s 40(8) on grounds the records were exempt.
Under s 42(1) of the Archives Act, application for reconsideration of an access decision may be made within 28 days. For present purposes it is not necessary to discuss these provisions in any detail because they are not applicable in the circumstances of this case. Nonetheless, s 42 is an important part of the statutory context in which the Tribunal’s jurisdiction is to be decided and, to that extent, I have carefully considered its terms. It is desirable only to set out the terms of s 42(4) under which the provisions of s 40 apply:
(4) The provisions of section 40 extend to a decision made under this section
upon a review of a decision in relation to the provision of access to a record
that is the subject of an application under that section.
Even though s 40 is the key provision under which application may be made for access to a record, it is not at large. The chapeau in s 40(1) has important work to do. It confines application of the section to an application for access to a record referred to in section 31. Section 31 is a threshold provision, which is in the following terms:
(1A) This section applies to a Commonwealth record that:
(a) is in the open access period; and
(b) is in the care of the Archives or in the custody of a Commonwealth
institution; and
(c) is not an exempt record.
(1) Subject to this Part, the Archives must cause the record to be made available
for public access.
Note: Arrangements under section 64 for a person (other than the Archives) to have custody of a Commonwealth record must enable the Archives to meet its obligations under this subsection.
(2) If the record is in the custody of a Commonwealth institution, the institution
must make such arrangements with the Archives as will enable the Archives
to meet its obligations under subsection (1) in relation to the record.
Note: If the record is material of the Archives, the arrangements referred to in subsection (2) must be included in the arrangements under section 64 for the Commonwealth institution to have custody of the record.
(3) Subject to any regulations made under section 20, subsection (2) does not
apply to:
(a) the Senate, the House of Representatives or a Parliamentary
Department, in relation to records in the possession of the Senate,
the House of Representatives or the Parliamentary Department; or
(b) a court, in relation to records in the possession of that court or of a
registry of that court.
(4) The Archives may withhold a Commonwealth record or a class of
Commonwealth records from public access for a reasonable time pending
examination in accordance with section 35.
For s 31(1) to apply, and for the purposes of granting an access request under s 40, each of the preconditioning elements in s 31(1A) must be satisfied. The identification of a Commonwealth record within the scope of an application for access under s 40(1) is a threshold consideration. It is for the Archive then to determine if the application for access to the record can be granted and, if not, the grounds on which the application should be refused.
Where the threshold in s 31(1A) is surpassed and a decision is made, or is deemed to have been made under s 40(8), in respect of an application for access to a record under s 40 or s 42 (where applicable), application for review of that decision may be made for the purposes of s 43(1) of the Archives Act and s 25(1) of the AAT Act.
Where a Commonwealth record within the scope of a request under s 40(1) is identified and a decision is made to refuse public access to the record on grounds the record has been destroyed or otherwise disposed of under s 24, the decision is susceptible to review by the Tribunal under s 43(1)(a) if the record is a Commonwealth record to which Div 3 does not apply.
The reference to Division 3 is a reference to Div 3, Pt V of the Archives Act. Division 3 does not apply to a record that:
(a)is outside the scope of s 31;
(b)is the subject of consultations between the Commonwealth and States or Territories under s 32; or
(c)is exempt under s 33.
Where s 32 does not apply and, but for the deeming effect of s 40(8), the record is not exempt under s 33, the question is whether the record is outside the scope of s 31. Section 31, and the mandatory obligation in s 31(1) to make a record available for public access, only applies to a record that is within the terms of s 31(1A), namely a record that:
(a)is in the open access period; and
(b)is in the care of the Archives or in the custody of a Commonwealth institution; and
(c)is not an exempt record.
Where a Commonwealth record is identified within the terms of the request, but the record is not in the care of the Archives or in the custody of a Commonwealth institution, the s 31(1A) threshold is not satisfied and the record is not a record referred to in section 31. A record of that kind is a Commonwealth record to which Div 3, Pt V of the Archives Act does not apply. In such circumstances, a decision refusing public access to the identified Commonwealth record is capable of review by the Tribunal under s 43(1)(a).
Furthermore, where a Commonwealth record is destroyed under one of the means referred to in ss 24(2) or (3), noting the deeming effect of s 24(5), the record may no longer be in the care or custody of the Archive or a Commonwealth institution, but its prior status as a Commonwealth record is not expunged. While the destruction of the Commonwealth record removes it from Div 3 of Pt V, such that it is no longer a Commonwealth record to which access may be granted under s 31(1), a decision to refuse access to the record on such a ground is, nonetheless, within the terms of s 43(1)(a).
The scope of review under s 43(1)(a) is not limited to a decision in respect of a Commonwealth record. The section is sufficiently broad to authorise review of decisions refusing public access to a record on the ground it is exempt (and therefore not within the meaning of a Commonwealth record) or on the ground it is not a Commonwealth record to which Div 3 of Pt V of the Archives Act applies.
Necessarily, a decision to refuse an application for access to a record turns on factual findings about each of the matters set out in s 31(1A), including whether the record is a Commonwealth record. Each of the statutory questions posed must be decided on assessment of probative materials in the circumstances of any case at the time a request for access is determined. And the resulting decision is subject to review under s 43(1) of the Archives Act.
There is one further aspect of the statutory framework which requires consideration. The powers of the Tribunal are expressly dealt with in s 44 of the Archives Act:
(1) Subject to this section, in proceedings under this Division, the Tribunal has, in
addition to any other power, the power to review any decision of the Archives
upon an application for access to a record and to decide any matter in relation
to that application that, under this Act, could have been or could be decided by
the Archives, and any decision of the Tribunal under this section has the same
effect as a decision of the Archives.
(2) Where an applicant makes an application under section 43 in respect of a
decision of the kind referred to in paragraph (1)(d) of that section, the Tribunal
has power to grant access to the record to which the application relates, or to
grant access to that record on particular conditions, notwithstanding any
determination made by the Director‑General under section 37 in relation to that
record.
(3) Where, in proceedings before the Tribunal in pursuance of an application under
section 43, it is established that a record is an exempt record, the Tribunal does
not, except as provided by subsection (7), have power to decide that access is
to be granted to the record.
(7) On a review in pursuance of an application to the Tribunal under section 43, the
Tribunal may, if it is satisfied that it would be practicable to give access to, or to
a copy of, part of an exempt record in a form that would not disclose information
or matter by reason of which the record is an exempt record, direct that access
be given accordingly.
This section has been the subject of consideration by the Tribunal previously. In Staats and National Archives of Australia (Staats),[15] it was said in respect of s 44(1):
18. …this subsection is a source of power for the Tribunal and is not a source of jurisdiction. The Tribunal can exercise the powers given once proceedings before it are properly instituted and within jurisdiction given by section 43. If it was intended that the Tribunal have jurisdiction to review any decision of the Archives the provisions of subsection 43(1) would be unnecessary. The Act should not be interpreted to lead to such a result.
19. The Tribunal does not need to determine the existence or otherwise of the records in order to determine its jurisdiction. This returns to the question of the decisions the Tribunal can review. The Tribunal has been given the jurisdiction to review the decisions, and only the decisions, set out in subsection 43(1). They are decisions relating to identified records. There is no reference to decisions relating to records which cannot be identified and consequently the existence or non-existence of records is not an issue for the Tribunal to consider.[16]
[15] [2009] AATA 598.
[16] Ibid, at [18]-[19].
The decision in Staats was followed in Morris and Director-General, National Archives of Australia (Morris).[17]
[17] [2016] AATA 679.
Clearly enough, s 44(1) confers power on the Tribunal in proceedings under Division 4, Pt V of the Archives Act. Even though the power conferred under s 44(1) permits the Tribunal to review any decision of the Archives upon an application for access to a record and to decide any matter in relation to that application that, under this Act, could have been or could be decided by the Archives, this applies and is to be understood in the context of proceedings in the Tribunal authorised under s 43.
The provision of power to the Tribunal when reviewing an access decision of the Archive does not expand the functions of the Tribunal or its jurisdiction when conducting the review. So much can be taken from Bennett v CEO Australian Customs Service[18] in respect of an equivalent provision under the Freedom of Information Act 1982.
[18] [2004] FCAFC 237, per Gyles J, with whom Tamberlin J agreed, at [72].
Jurisdiction
Dr Gilligan asserts the Tribunal has jurisdiction to review the Archive’s decision to deny his application for access to certain records. He submits that the decision in Staats is distinguished on the facts. In that case, the records to which access was sought did not exist, whereas in this case Dr Gilligan argues the records to which he is seeking access did exist and, even though some copies may have been destroyed, other copies may yet exist. While some searches have been undertaken without the records being found, it is Dr Gilligan’s view that copies of the records he is seeking may be found if further and better searches are conducted. In these circumstances, so the argument goes, the Tribunal has power to direct further searches should be undertaken.
The Archive disagrees and asserts the Tribunal has no jurisdiction beyond that conferred by s 43 of the Archives Act. The Archive argues s 43 does not confer jurisdiction on the Tribunal to review a decision refusing an application for access on grounds the records do not exist or have been destroyed. Without jurisdiction, the Archive submits the Tribunal does not have power to order further searches for the records to which Dr Gilligan has applied for access.
The matter is to be determined under applicable provisions of the Archives Act and the AAT Act.
Dr Gilligan’s application under s 25 of the AAT Act is for review of a decision deemed to have been made under s 40(8) as the Archive did not make a decision within the consideration period under s 40A, namely within 90 days of receiving Mr Gilligan’s request for access.[19] As the language of s 40(8) makes clear, the deemed decision is a decision refusing to grant access to the record on the ground that the record is an exempt record and it is deemed to have been made expressly for the purpose of enabling an application to be made to the Tribunal under section 43.
[19] T1, folio 14.
Consistently with the express terms of s 40(8), the Tribunal has jurisdiction to review a decision to refuse access on such grounds as it is within the terms of s 43(1)(a) of the Archives Act.
Access Decision
In the circumstances of this case, additional time was allowed for the Archive to deal with Dr Gilligan’s access request under s 40(12) and, on 25 October 2021, the Access Decision was subsequently made. By operation of s 40(11) and pursuant to Dr Gilligan’s request, the Tribunal may treat the proceedings as extending to a review of that decision in accordance with Pt V. This is instrumental in the Tribunal’s jurisdiction.
The word may confers discretion on the Tribunal and it requires the Tribunal to decide if the proceedings should include the decision of the Archive under s 40(12).
The Access Decision does not expressly refuse access to the documents identified within the scope of Dr Gilligan’s request, but it does so impliedly on grounds the documents could not be found and were destroyed. Dr Gilligan asserts the records may yet exist in the holdings of the Department of Defence and they may be found if further and better searches are undertaken.
The facts are distinguished from Staats’ case, in which no records within the scope of Mr Staats’ request for access were identified. Here, records have been identified, albeit the Archive asserts they cannot now be found and have been destroyed. The correctness of these assertions remains to be tested.
The decision-maker asserts the Access Decision is not reviewable by the Tribunal. This is not correct. The Access Decision is a decision made in the course of Tribunal proceedings under s 40(12) of the Archives Act in circumstances where additional time was allowed for the Archive to deal with Dr Gilligan’s access request. Express provision is made in s 40(11) for it to be included in the Tribunal proceedings. In these circumstances, a finding by the decision-maker that the records have been destroyed does not render the decision outside the terms of s 40(11) or beyond the scope of the Tribunal proceedings.
Furthermore, even if the deemed decision under s 40(8) was replaced by the Access Decision (and it is not clear the terms of s 40(11) have that effect), under s 43(1)(a), the Tribunal has jurisdiction to review a decision of the Archive refusing to grant access to the record on the ground that the record is a Commonwealth record to which Div 3 does not apply.
Where the Archive refuses to grant an application for access to an identified Commonwealth record on grounds the record does not exist or it has been destroyed, the Archive is, in effect, refusing to grant access because the record as it is outside the scope of s 31(1A): it is no longer a Commonwealth record and Div 3, Pt V of the Archives Act does not apply.
The Tribunal has jurisdiction under s 43(1)(a) of the Archives Act to review a decision of that kind.
Thus, in order to permit the contested factual assertions of the parties to be tested, it is appropriate for the proceedings to include the Access Decision under s 40(12) and for relevant probative materials to be adduced.
Importantly, for the purposes of determining the Tribunal’s jurisdiction, is not necessary to determine an existing record has been identified within the terms of an application for access, rather it is necessary to determine if the contested decision is a decision to deny access to the record on one of the grounds set out in s 43. Implicit in this question is that the application for access is in respect of a record within the archival records of the Commonwealth. Issues of practicality are not determinative.
In Staats’ case, the Tribunal determined it lacked jurisdiction because no relevant record was identified within the scope of Mr Staats’ application for access (albeit in the context of determining his application for an extension of time in which to apply for review). The facts in this case are substantially different. Relevant records have been identified within the scope of Dr Gilligan’s request. The Archive maintains the records were destroyed under General Disposal Authority 14 for the purposes of s 24 of the Archive Act. Dr Gilligan asserts that copies of the records may yet exist, if not in the care of the Archive, then in the custody of the Department of Defence. It is this issue that is the nub of the dispute between the parties, but it is not an issue on which the Tribunal’s jurisdiction turns.
These are factual questions on which Dr Gilligan’s access request turns. Whether or not the particular records to which Dr Gilligan seeks access have been destroyed is a question of fact to be tested by evidence. So is the question of whether copies of the records are nevertheless retained in the holdings of the Department of Defence.
The Tribunal has jurisdiction because Dr Gilligan applied under s 25 of the AAT Act for review of a decision that was deemed to have been made under s 40(8) and that is within the terms of s 43(1)(a) of the Archives Act. Furthermore, by operation of s 40(11), the Tribunal has jurisdiction review the Access Decision made under s 40(12) of the Archives Act, which is also within the terms of s 43(1)(a) of that Act.
Dismissal
The Archive asserts Dr Gilligan’s application should be dismissed under s 42A(4) of the AAT Act for want of jurisdiction as the application is in respect of a decision that is not reviewable by the Tribunal.
For the reasons I have set out above, this is incorrect.
There may be other grounds on which dismissal of Dr Gilligan’s application might be considered. For example, where the records to which he seeks access have been destroyed or cannot be found after all reasonable searches have been undertaken, his application may have no reasonable prospect of succeeding whereupon consideration might be given to dismissing his application under s 42B(1) of the AAT Act.
Presently, no other such grounds have been asserted or ventilated by the parties and it is not appropriate to go any further on these matters at this time. Dr Gilligan considered withdrawing his application, but then changed his mind and decided to press on.
As the Tribunal has jurisdiction, the proceedings will continue. A telephone directions hearing will be listed at the earliest convenient date to determine how best to bring the application to a conclusion, either by consent or at a hearing.
Decision
The Tribunal has jurisdiction to review the decision deemed to have been made on 21 October 2017 under s 40(8) of the Archives Act 1983 and the decision made on 25 October 2021 under s 40(12) of that Act.
The Respondent’s application for dismissal of the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 is refused.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member S Webb.
……………………….[sgd]…………………………
Associate
Dated: 4 July 2022
Date of hearing: 18 February and 20 April 2022
Representative for the Applicant: Self-represented
Representative for the Respondent: Mr Justin Hyland, Australian Government Solicitor

[2022] AATA 2150

4 July 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/4582
FREEDOM OF INFORMATION DIVISION	)