Hamden and Centrelink

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 587

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0247

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID KEVIN HAMDEN

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date25 August 2011

PlaceAdelaide

Decision The Tribunal varies the decision under review.

..............................................

R W DUNNE
  (Senior Member)

2.      At the hearing, Mr Hamden appeared and gave evidence.  Mr A Parker, from the Centrelink Program Litigation and Review Branch, appeared for the respondent.  Evidence for the respondent was given by Mr C Hill, an officer employed by Centrelink in the position of Technical Manager, End User Communication Team.  The T documents (Exhibit R1), lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, were accepted into evidence, in addition to the following exhibits:

·email from Mr S Marsh, Centrelink Manager, to Mr R Fenby dated 10 May 2007 (Exhibit A1);

·further email from Mr S Marsh, Centrelink Manager, to Mr R Fenby dated 10 May 2007 (Exhibit A2); and

·witness statement of Mr C Hill dated 23 March 2011 (Exhibit R2).

issues before the tribunal

3.      The issues for determination by the Tribunal are as follows:

(a)      Whether reasonable steps have been taken to find the documents requested by the applicant, in particular, whether the documents exist in original (ie electronic) form.

(b)      Whether the Tribunal is satisfied that the documents requested by the applicant cannot be found or do not exist.

legislation

4. The object of the Act, expressed in s 3 is “to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth”. In achieving this object, s 11(1) of the Act provides a general right of access and reads:

“11       Right of access

(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a)      a document of an agency, other than an exempt document; or

(b)an official document of a Minister, other than an exempt document.

…”

5.      It is clear from the terms in which the right of access is couched that it is a qualified right.  The first qualification is that it is a right to have access to “a document of an agency” or to “an official document of a Minister”.  Insofar as an agency is concerned, that means the right is to have access to a document in the possession of the agency (s 4(1)).  The word “document” is defined in s 4(1) in very broad terms to include:

“(a)     any of, or any part of any of, the following things:

(i)        any paper or other material on which there is writing;

(ii)       a map, plan, drawing or photograph;

(iii)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(iv)any article or material from which sounds, images or writings…