Johnsons Creek Conservation Committee and Commonwealth Scientific and Industrial Research Organisation

[2000] AATA 1161

DECISION AND REASONS FOR DECISION [2000] AATA 1161

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N1999/1888

GENERAL ADMINISTRATIVE DIVISION          )          

Re:johnsons creek conservation committee

Applicant

And:COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION

Respondent

DECISION

Tribunal       Senior Member M D Allen

Date8 December 2000

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No   N1999/1888
  )  
GENERAL ADMINISTRATIVE DIVISION     )

Re:       JOHNS CREEK CONSERVATION COMMITTEE

Applicant

And:     COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION

Respondent

DECISION

Tribunal              Senior Member M D Allen

Date  8 December 2000

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)  M.D. ALLEN

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

Senior Member
CATCHWORDS

FREEDOM OF INFORMATION  -  Report prepared by Respondent for firm of environment consultants.  Prepared as part of commercial dealings of Respondent.  Tribunal has no power to rule whether Act of Parliament ultra vires.

Freedom of Information Act 1982 - s7
Science and Industry Research Act 1949

Uniden Australia Pty Ltd v Collector of Customs 46 ALD 326
Re Adams and The Tax Agents' Board 12 ALR 239

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made the Applicant, through its solicitors, and the Respondent pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         Kwai-Ling Wong
          ..................................................................................……………………………….

Associate

Date of Hearing  8 December 2000
Date of Decision  8 December 2000
Counsel for Applicant                 Mr T F Robertson

Solicitor for Applicant                  Woolf Associates
Counsel for Respondent            Mr RRS Tracey
Solicitor Respondent                  Australian Government Solicitor

DRAFT DECISION  

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N1999/1888
By Mr M.D. ALLEN, Senior Member
JOHNSONS CREEK OCNSERVATION COMMITTEE
and CSIRO
SYDNEY, 8 DECEMBER 2000

MR ALLEN:   By application lodged the 15th day of December 1999 the applicants sought review of a decision by the respondent refusing access to a document described in the original request in the following terms, namely, "the report from Dr Ian Webster of the Water Division of the CSIRO commissioned by Woodward Clyde, consultants to CIM Resources in November 1996 in relation to the void (water impoundment) of the proposed Duralie opencut coal mine".  No issue was taken as to the standing of the applicant body to bring this application.

As stated above the document in question is a report prepared by the respondent for a firm of environmental consultants, Messrs Woodward Clyde, Consultants. The history of the matter is set out at document T2 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Exhibit T10 is a statement of agreed facts between the parties and I would add as an aside that that agreed statement of facts has materially assisted the expeditious resolution of this matter. Paragraphs 4, 5 and 6 of that statement read:

4.At all material times, and particularly in December 1996, the CSIRO has carried out commercial research activities.  These activities include undertaking collaborative and contract research and providing technical services to industry and to the public and other customers for a price. 

5.At all material times, and particularly in December 1996, CSIRO has charged for its commercial activities including activities similar to those undertaken by private research or scientific entities which operate as businesses for profit.

6.At all material times, and particularly in december 1996, the csiro has competed with private entities such as Danes and Moore Ltd, Phil Dyson Pty Ltd and SKM Ltd in the provision of environmental research services to the public.

I find therefore that the contract between the respondent and Messrs Woodward Clyde was a commercial contract and constituted

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commercial activities in terms of subsection 3 of section 7 of the Freedom of Information Act. Subsection 2 of section 7 FOI Act reads:

The persons, bodies and departments specified in part II of schedule 2 are exempt from the operation of this Act in relation to the documents referred to in that schedule in relation to them.

Schedule 2, part II then reads inter alia:

The Commonwealth Scientific and Industrial Research Organisation is exempt in relation to documents in respect of its commercial activities.

As I stated earlier I find as a fact that the report was prepared by the respondent as part of its commercial activities. The authority for the respondent to enter into commercial activities is to be found in sections 9 and paragraph 9AAC of the Science and Industry Research Act 1949 as amended. Subsection 1 of section 9 of that Act reads inter alia:

The functions of the Organisation are:

(a)to carry out scientific research for any of the following purposes:

(i)    assisting Australian industry;

(ii)   furthering the interests of the Australian community;

(iii)contributing to the achievement of Australian national objectives or the performance of the national and international responsibilities of the Commonwealth;

(iv)any other purpose determined by the Minister;

Paragraph 9AA(e) then reads that:

The Organisation has power to do all things necessary or convenient to be done for or in connection with the performance of its functions and, in particular, may:

…

(e)     charge such fees, and agree to such conditions, as the Chief Executive determines for research and other services carried out, or facilities made available, by the Organisation at the request of any person.

Mr Robertson of counsel for the applicant submitted that the Tribunal should read down the provisions of schedule 2 so far as it related to the respondent because the power given to it under the Science and

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Industry Research Act was not supported by any head of power in the Constitution of the Australian Commonwealth. Whereas his Honour, Mr Justice Foster, in Uniden Australia v Collector of Customs 46 ALD 326 did state at page 336:

It has always been clear that the AAT has power to decide questions of law relevant to the area in which it is making its decision.  If it commits a legal error in so doing then that error can be corrected by appeal to this court, whereas, of course, mere factual error cannot be so corrected.

That passage must be read in the light of the earlier comments by his Honour that it would follow that the AAT could not as is stated in these passages make curial orders in the nature of declarations.  This would plainly be an exercise of judicial power.  Notwithstanding whatever manner in which it is put the submission by the applicant involves this Tribunal ruling upon the validity of a statute, namely, the Science and Industry Research Act 1949 as amended.  The point to my mind was decided by his Honour, Mr Justice Brennan as he then was sitting as the first President of this Tribunal in re Adams v The Tax Agents Board 12 ALR 239.  At page 241 his Honour quoted his Honour, Mr Justice Rich, in Australian Apple and Pear Marketing Board v Tonking 66 CLR 77 at 104.  His Honour then said:

The questions whether an Act of the Federal Parliament is valid, and if so whether it involves any and what legal consequences, can be determined only by an exercise of the judicial power, either by this court, by some other Federal court which the Federal Parliament has created, or by some other court which it has invested with Federal jurisdiction in that behalf, or by some court when the question arises in proceedings before it and is not removed into this court under ss40 and 40A of the Judiciary Act 1903-1940. But no body but a court can be invested with such jurisdiction.

His Honour, Mr Justice Brennan then added:

It follows that neither the Tribunal nor the board can give a definite answer to the question of constitutional validity.

His honour then went on at page 245 to say:

As at present advised, it appears to me that, when a decision- maker acts in conformity with his statutory authority, a person whose interests are affected by his act may not obtain relief from this Tribunal upon the ground that the

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statute is ultra vires the Parliament.  This Tribunal has no powers of review which it might exercise to give effect to such a ground.  It has no judicial power.  The relief must be sought, if at all, from a court in which the judicial power of the Commonwealth is vested.

Those passages clearly demonstrate that it is not within the authority of this Tribunal to pronounce upon the constitutional validity of the powers given to a Commonwealth body in a statute. As this matter was based upon section 7 and schedule 2 of the Freedom of Information Act it seems to me that the objection to production has properly been taken and I affirm the decision under review.

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