MacTiernan and Secretary, Department of Infrastructure and Regional Development
[2016] AATA 1094
•20 December 2016
MacTiernan and Secretary, Department of Infrastructure and Regional Development [2016] AATA 1094 (20 December 2016)
Division:GENERAL DIVISION
File Number: 2016/0221
Re:APPLICANT Alannah MacTiernan
RESPONDENTAnd Secretary, Department of Infrastructure and Regional Development
DECISION
Tribunal:Justice D Kerr, President
Date:20 December 2016
Place:Perth
The Tribunal is reconstituted as originally constituted.
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Justice D Kerr, President
CATCHWORDS
CONSTITUTION OF TRIBUNAL – remittal from the Federal Court of Australia – considerations for reconstituting the Tribunal – relevance of the terms upon which remittal is made – Tribunal reconstituted as previously constituted
LEGISLATION
Administrative Appeals Tribunal Act1975 (Cth)
Freedom of Information Act 1982 (Cth)
CASES
MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information) [2016] AATA 506 (19 July 2016)
SECONDARY MATERIALS
Administrative Appeals Tribunal President’s Direction ‘Constituting the Tribunal’, 14 July 2016
Federal Court of Australia, Administrative and Constitutional Law and Human Rights National Practice Note (ACLHR-1)
Pearce, D, Administrative Appeals Tribunal (4th ed)
REASONS FOR DECISION
Justice D Kerr, President
December 2016
These are my reasons for deciding the constitution of the Administrative Appeals Tribunal (the Tribunal) following a remittal by consent from the Federal Court of Australia (Secretary, Department of Infrastructure and Regional Development and Alannah MacTiernan WAD347/2016 on 1 December 2016).
On 28 July 2016 the Secretary, Department of Infrastructure and Regional Development lodged a notice of appeal in the Federal Court of Australia against a decision of the Tribunal, constituted by Senior Member CR Walsh, in MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information) [2016] AATA 506 (19 July 2016).
In that review the Tribunal made certain decisions granting access under the Freedom of Information Act 1982 (Cth) to documents relating to decision-making processes in respect of the Roe Highway Stage 8 and the Perth Freight Link.
The Secretary filed a supplementary notice of appeal on 17 August 2016.
The Federal Court’s Administrative and Constitutional Law and Human Rights National Practice Note (ACLHR-1) provides:
11.1 If the parties propose that an order be made with their consent, the effect of which is to set aside or vary an order of a federal Tribunal ("proposed consent order"), then they must:
(a) prepare a proposed consent order that contains, within a "notes" section at the foot of the document, a succinct statement of the matters said to justify the making of the proposed consent order and giving reference to any authorities or statutory provisions relied upon…
The rationale for that requirement is that the Federal Court must be satisfied of the existence of an error of law for it to have jurisdiction to give effect to a proposed consent order. In turn, a consent order with its notation setting out why the consent order has been approved defines the legal error which the Tribunal has made.
It appears uncontentious that either prior to, or at the hearing, the parties reached agreement that the Tribunal decision should be set aside.
The Federal Court, constituted by Siopis J, ordered by consent:
(a) the appeal be allowed and the decision made by the Tribunal dated 19 July 2016 be set aside;
(b) the matter be remitted to the Tribunal, the constitution of the Tribunal to be determined by the President, for reconsideration in accordance with law, without further evidence unless proper cause is shown to the Tribunal; and
(c) no order as to costs.
The following notation appears on the orders:
The First Respondent accepts that, in the circumstances of this matter, procedural fairness required the Tribunal to consider and then determine whether or not to exercise its powers under s 64 of the Freedom of Information Act 1982 (Cth) to require production of the Contested Documents before making its decision. The Applicant and the First Respondent further agree that the Tribunal did not do this and thereby made an error of law in reaching its decision.
10.As Pearce notes in Administrative Appeals Tribunal (4th ed) at 13.46 the Federal Court can control the nature of the hearing on remittal by the directions it gives. In the present matter I take it as uncontentious that the nature of the remittal is to be understood in terms of both the Order and the notation thereon. It is not at large.
11.The legal representatives for the First Respondent then informed the President of the Secretary’s view that the matter should not be remitted for further hearing to the Tribunal as previously constituted.
12.When a matter is remitted to the Tribunal to be reheard according to law the President (or his or her delegate) must determine how the Tribunal should be constituted for that purpose.
13.The relevant provisions of the President’s Direction ‘Constituting the Tribunal’ (first issued by then President Downes J; later reissued by me in materially identical terms on 14 July 2016) provides general guidance for that task.
14.Clause 6 deals with the considerations for the constitution of the Tribunal:
How will the Tribunal be constituted on remittal from a court?
6.1 Where a court orders that a case be remitted to the Tribunal, unless the court has ordered that the Tribunal be differently constituted, the President or the relevant Division Head will determine whether the case is to be heard and decided again by the Tribunal as previously constituted or by a differently constituted Tribunal.
6.2 In general, the President or the Division Head will direct that a case be remitted to the Tribunal as previously constituted unless the circumstances indicate that it would be preferable for the Tribunal to be differently constituted. Remitting a case to the Tribunal as previously constituted will usually cause it to be finalised more expeditiously, less expensively and more efficiently than before a differently constituted Tribunal.
6.3 In deciding whether a case should be remitted to the Tribunal as previously constituted or to a differently constituted Tribunal, matters to which the President or the Division Head will have regard include:(a) whether the member or members who previously constituted the Tribunal is or are available to hear and decide the case again within a reasonable period of time;
(b) whether a real question of actual or apprehended bias may arise if the case were heard and decided again by the previously constituted Tribunal;
(c) whether the nature of the error of law which affected the original decision indicates that the case should be heard and decided again by a differently constituted Tribunal;
(d) any recommendation made by the court as to how the Tribunal should be constituted when it hears and decides the case again.
6.4 If the President or the Division Head determines that the case
should be heard by a differently constituted Tribunal, the President or the Division Head will:(a) decide who is to constitute the Tribunal; or
(b) refer the case to a delegate of the President to decide who is to constitute the Tribunal.
6.5 In deciding who will constitute the Tribunal, regard may be had to the matters specified in paragraph 4.1.
15.However, as cl 6.5 makes clear those considerations are inclusive rather than exclusive and do not exhaust the range of considerations the President can, and will in appropriate cases, take into account as the circumstances of an individual matter appears to him or her to require.
16.To facilitate my consideration of how I should reconstitute the Tribunal, given the indication that the Secretary sought to make submissions on that question, I invited the parties to provide short written submissions. The Applicant and the First Respondent have each taken that opportunity. They differ as to the course I should adopt.
17.In my opinion the course I should follow in this matter is properly influenced by the limited terms of the consent remittal.
18.The Order made by Siopis J was that the decision be set aside and the matter be remitted to the Tribunal for reconsideration in accordance with law, without further evidence unless proper cause was shown to the Tribunal.
19.The error accepted by the Federal Court to have been made by Senior Member Walsh, constituting the Tribunal, was that of not considering and then determining whether or not to exercise the Tribunal’s powers under s 64 of the Freedom of Information Act 1982 to require production of the Contested Documents before making her decision.
20.It must be accepted in consequence of the Federal Court’s Orders that the Tribunal erred in law in failing to consider and determine whether to require production of the Contested Documents, given that the Senior Member constituting the Tribunal had been advised from the bar table that those documents could be produced if so required. The task of the Tribunal, as remitted to it by the Federal Court, will be to decide whether or not to require that course ‘without further evidence unless proper cause is shown to the Tribunal’.
21.Whether or not the Tribunal on remittal (however constituted) will decide to so require is a matter exclusively reserved to it; the outcome cannot be assumed.
22.Section 64 provides:
Production of exempt documents
(1) Sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 do not apply in relation to a document that is claimed to be an exempt document, but in proceedings before the Tribunal in relation to such a document, the Tribunal may, for the purpose of deciding whether the document is an exempt document, require the document to be produced for inspection by members of the Tribunal only.
(1AA) If, upon the inspection, the Tribunal is satisfied that the document is an exempt document, the Tribunal must return the document to the person by whom it was produced without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is:
(a)a member of the Tribunal as constituted for the purposes of the proceeding; or
(b)a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or
(c)in the circumstances permitted under paragraph 60A(6)(a)—the Inspector‑General of Intelligence and Security.
(1A) If, for the purposes of proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document, the document is voluntarily produced to the Tribunal, then only:
(a) the members of the Tribunal as constituted for the purposes of the review; or
(b) a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff;
may inspect, or have access to, the document.
23.I have taken into account the Outline of Submissions (the Outline) filed with the Federal Court on the Secretary’s behalf. The Outline is an annexure to the Secretary’s submissions to the Tribunal on the reconstitution matter. I am entitled to assume the Outline puts the Secretary’s case as it was presented. It states that in the proceedings before the Tribunal counsel for the Secretary twice indicated that the Contested Documents were available and has made submissions that the Tribunal should consider whether or not to require their production (Outline [17], referred to in submissions at [34]).
24.However there is nothing in the Outline (or any other material before me) to explain why, if counsel for the First Respondent believed it to be necessary for the Contested Documents to be inspected as part of the Respondent’s case, the Secretary did not make a formal voluntary tender of them to the Tribunal pursuant to s 64(1A). It is not suggested that their tender on that basis was rejected.
25.It may be accepted that cls 2.2 and 2.3 of the Tribunal’s ‘Freedom of Information Practice Direction’ constrained the Secretary from including the Contested Documents in the T-Documents lodged with the Tribunal under s 35 of the Administrative Appeals Tribunal Act1975 (Cth). That is because, as the Practice Direction refers, the terms of s 64 of the Freedom of Information Act differently provides for how such documents are to be dealt with. However nothing in the Practice Direction purports to, nor in law could, cut down or limit the right of a Respondent to voluntarily produce to the Tribunal for its inspection the documents over which a claim for exemption has been made pursuant to s 64(1A).
26.The forensic reason for the decision to invite the Tribunal to direct the production of the Contested Documents yet not to voluntarily produce those documents to the Tribunal as part of the First Respondent’s case is unclear. The materials before me suggest that it may have been as a result of a misunderstanding of the effect of cls 2.2 and 2.3 of the Tribunal’s ‘Freedom of Information Practice Direction’ (see 2(iii) and 2(iv) of the Outline).
27.Whatever the reason for that election, it having been so proposed, the Tribunal was obliged as a matter of procedural fairness to consider and determine whether it should itself require the production of the Contested Documents. That it failed to do. Doing so is the unperformed task the Federal Court has remitted to the Tribunal to undertake.
28.That will require the Tribunal to give consideration to whether, in the specific facts and circumstances of this case, the Tribunal has a duty to, or should, in order to reach the correct and preferable decision, require the production of materials over which a claim for exemption has been made that a party had the opportunity to, but has not, voluntarily produced to the Tribunal as part of its case.
29.I discern nothing in the manner in which the Tribunal’s findings of fact and reasons (including its earlier findings and reasons with respect to the waiver of charges) were expressed to suggest that that task is one which would be inappropriate to remit to the Tribunal as previously constituted. The Secretary accepts that previous findings in the course of the hearing which were adverse cannot itself be relied upon as giving rise to an apprehension of bias (submissions [33]).
30.Nor do I discern anything in the manner in which the Tribunal’s findings of fact were expressed, or the language of the reasoning, to suggest that if the Tribunal as previously constituted was to require the production of the Contested Documents and to inspect them for the purpose of deciding whether all or any of them was exempt, that the Tribunal would bring anything other than an open mind to that task.
31.The findings cited by the Secretary at [28] to suggest the contrary were self-evidently made by the Tribunal on the basis that, on the evidence then before it, the First Respondent had failed to establish certain matters.
32.That was in circumstances in which the Secretary had not tendered the Contested Documents as part of the First Respondent’s case and in the absence of the Tribunal itself having required the production of them.
33.It is impossible to read into s 64 of the Freedom of Information Act that one of the courses available under subsections (1) or (1A) must be taken. It is entirely open to a respondent party to advance its case on the bass that other evidence will sufficiently establish the merit of the claimed exemption.
34.If the Tribunal on remittal decides to require the production of the Contested Documents and undertakes their inspection (subject to the confidentiality regime provided for by s 62(2) of the Freedom of Information Act) what it may discern on their inspection may or may not require reconsideration wholly or in part of one or both of those conclusions. However there is nothing in the tenor of the Tribunal’s reasons that in my opinion would justify a fair minded lay observer apprehending that Senior Member Walsh, if the content of the Contested Documents does so require, might not bring an impartial and unprejudiced mind to the task of finalising the review having regard to what they reveal.
35.There is nothing in the nature of the Tribunal’s findings that turns on the credit of witnesses nor anything intemperate in the manner of expression of earlier findings, made on the basis of those materials not having been before the Tribunal, relevant to that task to justify such an apprehension.
36.I place only the slightest of weight on the further alleged errors of law asserted by the Secretary as set out in the Outline (see submissions [12], [14] and the final paragraph of [28]).
37.Those asserted errors are not encompassed by the Orders for remittal made by Siopis J.
38.There may be rare instances in which, when a limited remitter is ordered by the Federal Court, other errors are so egregious or facially obvious in the Tribunal’s reasoning that the President would be justified in taking those factors into account in favour of remitting the matter to a different member. That in my opinion is not the present case.
39.Moreover, the President is not an additional court of appeal. It would be inappropriate for the President to substitute him or herself for the Federal Court for the correction of error. Submissions advanced on that basis are not to be encouraged. A decision on remittal by the President has no consequence beyond its terms. A different member constituted as the Tribunal might well commit the same (asserted) error. Error is for the Federal Court, not the President, to correct.
DECISION
40.For the reasons I have expressed above I intend to reconstitute the Tribunal to complete the review as previously constituted. While I do not regard it as a central component of my reasons, I also accept the Applicant’s submission that remittal to the same member would be the most expeditious way of bringing these proceedings to a timely conclusion. I note that Siopis J ordered that the constitution of the Tribunal to be determined by the President. I do not take the terms of His Honour’s Order to be indicative of a disposition that it be constituted as I have directed, but I am content it does manifest a view that such an outcome is not precluded.
| I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Justice D Kerr, President |
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Associate
Dated: 20 December 2016
| Date of Applicant’s submissions: | 16 December 2016 |
| Date of Respondent’s submissions: | 16 December 2016 |
| Solicitor for the Applicant: | Ms R Cosentino |
| Solicitor for the Respondent: | Ms C Bush |
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