Mentink and Australian Maritime Safety Authority

[2006] AATA 132

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 132

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/666

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WILFRED JAN MENTINK

Applicant

And AUSTRALIAN MARITIME SAFETY AUTHORITY

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date17 February 2006  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

....................Signed..........................

Deputy President

CATCHWORDS

FREEDOM OF INFORMATION – application for internal review – whether to remit fee for application – financial hardship – general public interest

Freedom of Information Act 1984 ss 30A, 54

Patterson and Australian Bureau of Statistics (1994) 33 ALD 635

Re Herald and Weekly Times and Secretary, Department of Finance and Administration (2000) 31 AAR 251   

REASONS FOR DECISION

17 February 2006 Deputy President P E Hack SC    

1.This case is about $40.00. That is the fee prescribed by regulation 5(b) of the Freedom of Information (Fees and Charges) Regulations for an internal review, pursuant to section 54 of the Freedom of Information Act 1982 (the FOI Act), of the decision made by an agency in relation to access to documents. The applicant, Mr W J Mentink, says that the fee that he would otherwise be required to pay ought to be remitted pursuant to section 30A of the FOI Act. The Agency, the Australian Maritime Safety Authority (the Authority), determined that the fee ought not be waived and affirmed that decision on internal review.

2.It is necessary to set out some little detail of the background against which this matter is to be considered. Mr Mentink says that he was, and, despite the events that have happened, is still, the owner of the vessel Larus II. The vessel was registered on the Australian Register of Ships and, up until 11 August 2004, was registered in Mr Mentink’s name. On that day the registration was “closed”, that is, the registration of the vessel was not continued. That was because the Authority, which maintains the Register, was satisfied by one or more documents produced to it, that the vessel had been sold to a non-Australian resident.

3.Mr Mentink says that this person is a thief and a forger who has stolen the vessel from him and, by fraudulently applying a copy of Mr Mentink’s signature on relevant documents, has effected the deregistration of the vessel. Necessarily, I do not decide that issue in these proceedings.

4.In January 2005 Mr Mentink sought access to documents relating to the vessel and held by the Authority. He sought a waiver of any fees that might apply. There was correspondence between him and the Authority on the subject of this waiver. Mr Mentink said that he had been in long term unemployment, that he was in receipt of Centrelink benefits and that his major asset and home, the vessel, had been stolen. He provided documentary evidence of the fact that he was receiving Newstart allowance.

5.On 29 March 2005 the Authority wrote to Mr Mentink and told him that as “there may be a degree of hardship” the application fee, an amount of $30.00, and any further charges (associated with the process of releasing the documents) would be waived. The application by Mr Mentink was then processed by the Authority and Mr Mentink was given access to most documents. However two documents were not released and certain deletions were made to other documents on the basis of various exemptions claimed by the Authority. Again, I do not decide in these proceedings the correctness of the approach taken by the Authority.

6.The documents were provided to Mr Mentink in three tranches on 5 April 2005, 20 May 2005 and 12 July 2005. Having received the letter of 20 May 2005 Mr Mentink, by letter dated 26 May 2005, sought internal review of the decision made on 20 May 2005 to release subject to exemptions. Internal review of a decision under s 30A relating to remission of an application fee is available under section 54(1) of the FOI Act. Mr Mentink’s letter asked the Authority “to waive the fee on the same grounds as the initial application”. By letter dated 13 July 2005 the Authority advised Mr Mentink that it had been decided not to remit any part of the application fee of $40.00. It is this decision which is in issue in these proceedings.

7.After some delay, caused by Mr Mentink mistakenly commencing proceedings in this Tribunal to review the decision, he applied, by letter dated 30 August 2005, for,

·   internal review of the 13 July 2005 decision,

·   waiver of the fee payable in respect of this internal review, and

·   (implicitly) an extension of time in which to seek that internal review.

8.On 27 September 2005 the Authority determined to extend the time for Mr Mentink’s application for internal review and to waive the fee payable in respect of that internal review but decided to confirm the 13 July 2005 decision, that is, the decision under s 30A of the FOI Act refusing to remit the application fee of $40.00 payable in respect of an application for internal review of the earlier decisions of 5 April 2005 and 20 May 2005.

9.The terms of s 30A need now be noted. It provides, so far as is presently relevant, that were a request is made under s 54(1) of the FOI Act for a review of a decision relating to a document and there is an application fee, an agency may remit the fee or part of it where,

“(b) the Agency …. considers that the fee or a part of the fee should be remitted for any reason, including either of the following reasons:

(i) the payment of the fee or of the part of the fee would cause….. financial hardship to the applicant… [or]

(iii) the giving of access is in the general public interest or in the interest of a substantial section of the public.”

10.By reason of s 61 of the FOI Act it seems to me, and Ms Pearson who appeared on behalf of the Authority seemed minded to accept, that the onus of establishing that the Tribunal should give a decision adverse to Mr Mentink lay on the Authority.

11.The arguments of the parties focused upon three issues,

·   whether payment of the fee would cause hardship,

·   whether access to the extent refused, was in the public interest,

·   whether the alleged “misconduct” of the Authority that Mr Mentink relies upon, in effect, the circumstances of the deregistration of the vessel, warranted remission.

12.Mr Mentink gave limited evidence in relation to the question of hardship. The evidence of his personal situation was limited to two matters, which I accept, (a) that he had been unemployed for a long period of time and (b) that he was in the receipt of Newstart allowance in the order $202.00 per week (or thereabouts). Despite being asked by me during the hearing whether he wished to provide any further evidence on this aspect, he chose to limit his evidence to that detail. He did not tell me, for example, what other expenses that he had nor whether, and, if so, to what extent, he had money available for discretion of expenditure. His contention seemed to be that because he had been earlier been granted fee exemption (in relation to the original application for access) he ought now be given remission of the fee for internal review.

13.Moreover, it ought be noted that in the interlocutory phase of the proceedings a Conference Registrar of the Tribunal made a direction that he provide “details of financial hardships”. He did not comply with that direction. I do not criticise him for not doing so, but in circumstances where Mr Mentink made a deliberate decision not to put on any other evidence, it is not possible to conclude that payment of a fee of $40.00 would cause him financial hardship. The amount of $40.00 is, with respect to Mr Mentink, quite modest even by reference to an income of $202.00 per week. On the material that I have before me I conclude that a payment of $40.00 would not cause financial hardship.

14.I turn then to the question of the public interest. Ms Pearson placed reliance upon the decision of the Tribunal in Patterson and Australian Bureau of Statistics (1994) 33 ALD 635 where at 641-2, paragraph [25] the Tribunal said,

“The scheme of the Act is to provide access to Government information subject to the provisions for exemption of certain classes of documents and the payment of application fees and charges. While there is a general public interest in the provision of access (see s 3) there is also to be considered the public interest in the release of the specific documents to which access is sought. That, in our view, is the relevant public interest for the purposes of remitting the application fee and charges otherwise payable in respect to the specific documents to which access is requested”.

15.Subsequently in Re Herald and Weekly Times and Secretary, Department of Finance and Administration (2000) 31 AAR 251 the President of the Tribunal at that time, O’Connor J, was called upon to consider the discretion in s 29(4) of the FOI Act to waive charges. In exercising that discretion the statute obliged the decision maker to take into account (albeit cumulatively) questions of hardship and public interest expressed in terms identical to ss 30A (1) (b) (i) and (iii). Her Honour was of the view that when exercising the s 29(4) discretion the Tribunal had to be satisfied “that the documents, if released, would come to the attention of the public or a significant section of the public, and also to come to the conclusion as to whether the disclosure would add to that which is already publicly known.” (at 268)

16.As it seems to me that principle could not be applied to the public interest issue that I am called upon to consider here. That must be so because a decision favourable to Mr Mentink would not, of itself, determine whether the documents are released. All a favourable decision would do would be to require the Authority to consider the question of exemption afresh and, if, having done, it so continues to claim exemptions, permit Mr Mentink to bring proceedings in this Tribunal for a review of the decision.

17.But even limited in this way I consider that the public interest that is relevant to be considered here must be beyond the private interest of Mr Mentink. There is, of course, a degree of tension in applying s 30A (1) (b) (iii) in its literal terms to a situation such as this where the waiver of fee is not directly concerned with the giving of access. Rather, as it seems to me, the exercise of the discretion conferred by s 30A (1) (b) and which may be exercised “for any reason” is informed by general public interest considerations. Subject to the discussion that follows on the third point in the case I do not consider that there is any general public interest in permitting waiver of fees in the present case, a fortiori, where I am satisfied that payment of $40.00 would not cause financial hardship to Mr Mentink.

18.I turn then to the principal case relied upon by Mr Mentink. His argument, as I understood it, and put in its simplest form, is that the Authority has been guilty of administrative misconduct in deregistering the vessel in the circumstances of which Mr Mentink complains. Mr Mentink says that by gaining access to the documents in their unedited state he will be able to expose that administrative misconduct and thus serve the public interest in that way. I am prepared to assume for the purposes of the argument (but make it clear that I do not find) that there was administrative misconduct of the type alleged by Mr Mentink in the registration or deregistration of the vessel. I am unable to accept that argument. If it be assumed favourably to Mr Mentink that his vessel was de-registered fraudulently he can, no doubt, make a complaint of that conduct to the appropriate police authorities. And, in those circumstances, any documents would, I assume, be made available by the Authority were it necessary to do so for the purposes of investigating the allegations.

19.The policy of the FOI Act seems to me to reflect as a starting point that a contribution will ordinarily be required from applicants for freedom of information access. But that fee may be waived where circumstances warrant that occurring. Section 30A instances two examples where the legislature considers that a remission may be warranted. Neither of those is satisfied here, the question is whether the matters particularly relied upon by Mr Mentink either alone or in combination with the other matters warrants remission.

20.In my view they do not. The fee sought is, as I have said, quite modest even by reference to a weekly income of $202.00. Mr Mentink has deliberately chosen not to put on evidence, which must be available to him, setting out his financial position. Mr Mentink seeks to pursue a private grievance. I am unable to conclude that the public interest would be served by waiving the application fee in the circumstances of this case.

21.It follows that I am satisfied that I should give a decision adverse to Mr Mentink and accordingly affirm the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ...................................Signed........................................
  Robert Hayes, Associate

Date of Hearing  8 February 2006
Date of Decision  17 February 2006
The Applicant appeared in person    
Solicitor for the Respondent    Ms B Pearson