Jaffarie and Australian Security Intelligence Organisation

[2016] AATA 616

Jaffarie and Australian Security Intelligence Organisation [2016] AATA 616 (9 August 2016)

Division	FREEDOM OF INFORMATION DIVISION
File Number	2016/3190
Re	Sayed Jaffarie
APPLICANT
And	Australian Security Intelligence Organisation
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	9 August 2016
Date of written reasons	19 August 2016
Place	Sydney

Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975, the application is dismissed.

.............[sgd].................................................

J W Constance
Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE - jurisdiction - Freedom of Information - where information requested from ASIO – where ASIO is an exempt agency – Tribunal does not have jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 21(1)

Freedom of Information Act 1982 (Cth) s 7(1), sch 2

WRITTEN REASONS FOR DECISION GIVEN ORALLY ON 9 AUGUST 2016

Deputy President J W Constance

19 August 2016

INTRODUCTION

1. On 5 March 2016 Mr Jaffarie wrote to the Australian Security Intelligence Organisation (”ASIO”) requesting copies of certain “file notes, documents, and telephone conversations”.  The request was made under the Freedom of Information Act 1982 (Cth).

2. On 14 April 2016 ASIO refused the request on the ground that it was exempt from the operation of the Act. Mr Jaffarie then sought a review of this decision by the Australian Information Commissioner.

3. The Office of the Commissioner sent an email to Mr Jaffarie on 21 April 2016 advising that it did not have jurisdiction to review ASIO’s decision for the same reason that ASIO had refused his request initially.

4. Mr Jaffarie then applied to the Tribunal to review the Commissioner’s decision and also the decision of ASIO. During the course of the proceedings it became clear that Mr Jaffarie was seeking a review of ASIO’s decision.

5. On 9 August 2016 I decided that the Tribunal did not have jurisdiction to review the decision. At the time I gave my reasons orally. I now provide my reasons in writing as requested by Mr Jaffarie.

   REASONING

6. As the Administrative Appeals Tribunal was created by an Act of the Commonwealth Parliament,[1] it has only the jurisdiction given to it by Parliament and none other.

   [1] Administrative Appeals Tribunal Act 1975 (Cth).

7. Subsection 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides:

   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.

8. The effect of the above subsection is that the Tribunal may only review a decision of ASIO if a law of Commonwealth Parliament gives it power to do so.

9. Subsection 7(1) of the Freedom of Information Act provides:

   The body specified in Division 1 of Part 1 of Schedule 2, and a person holding and performing the duties of an office specified in that Division, are to be deemed not to be prescribed authorities for the purposes of this Act.

   Under the heading Exempt agencies, the Australian Security Intelligence Organisation is included in Schedule 2.

10. As the Australian Security Intelligence Organisation is not subject to the provisions of the Freedom of Information Act, it follows that ASIO’s decision is not reviewable by this Tribunal. It was not argued by Mr Jaffarie that the Tribunal had jurisdiction under any other legislation.

    CONCLUSION

11. For the reasons stated Mr Jaffarie’s application for review was dismissed in accordance with subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

..................[sgd]......................................................

Associate

Dated 19 August 2016

Date of hearing	9 August 2016
Applicant	In person
Solicitors for the Respondent	Mr P Melican, Australian Government Solicitor