Morris and Director-General, National Archives of Australia
[2016] AATA 679
•2 September 2016
Morris and Director-General, National Archives of Australia [2016] AATA 679 (2 September 2016)
Division
FREEDOM OF INFORMATION DIVISION
File Number
2015/5712
Re
James Morris
APPLICANT
And
Director-General, National Archives of Australia
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 2 September 2016 Place Brisbane I dismiss the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) without proceeding to review the decision as I am satisfied that the decision is not reviewable by the Tribunal.
..........................[Sgd]..............................................
Deputy President Dr P McDermott RFD
CATCHWORDS
Administrative Appeals Tribunal – Jurisdiction and powers – Review of decision – Applicant sought access to records on file – File did not contain records that he believes exist – Decision did not refer to records that the applicant believes exist – No provision in Archives Act 1983 (Cth) for review of such decision – Tribunal does not have jurisdiction – Archives Act 1983 (Cth) s 43(1) – Tribunal cannot exercise power under s 44(1) of the Archives Act 1983 (Cth) without having jurisdiction – application dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATION
Archives Act 1983 (Cth) ss 33, 40, 42, 43, 44
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 42A(4)CASES
Re Staats and National Archives of Australia (2009) 50 AAR 147
Re McKnight and Australian Archives (1992) 28 ALD 95
Staats and Australian Archives [1995] AATA 485REASONS FOR DECISION
Deputy President Dr P McDermott RFD
2 September 2016
INTRODUCTION
On 3 November 2015 Mr James Morris (“the applicant”) lodged an application with the Tribunal seeking a review of a decision of a delegate of the National Archives of Australia (“the respondent”) made on 21 September 2015. On that date the delegate decided to partially release the applicant’s record for public access with the exception of material which is exempt under paragraphs 33(1)(a), (d), and (e)(ii) and (e)(iii) of the Archives Act 1983 (Cth) (“the Act”).
The applicant seeks review of the decision of the respondent on the basis that he believes that there are records in existence that relate to his activities at University in 1977 which have not been released to him. I am required to consider whether the Tribunal has jurisdiction to review the decision of the respondent.
BACKGROUND
On 26 August 2014 the applicant lodged an application requesting access to an Australian Security Intelligence Organisation (“ASIO”) record relating to him pursuant to s 40 of the Act.[1] A delegate of the respondent made a decision in response to the application.
[1] A separate application was lodged in the preceding month but is not directly relevant to the application before the Tribunal.
On 25 August 2015 applicant applied for an internal reconsideration under s 42 of the Act. On 21 September 2015 a delegate of the respondent notified the applicant of the internal reconsideration decision. The effect of the decision was that the applicant’s record was a partially released record for public access with the exception of material which is exempt under paragraphs 33(1)(a), (d), and (e)(ii) and (e)(iii) of the Archives Act 1983 (Cth) (“the Act”).
On 3 November 2015 the applicant lodged an application for a review of the decision of the respondent. The applicant attached a document to the application for review in he noted that the delegate did not provide material on his activities at University in 1977. He stated that:
I consider that the records of my activities at university in 1977 exist as previously released records of my activities have been provided. I see no reason why I would not have been similarly reported on in 1977 as in previous years my activities were similar. They should be released as I expect that they have the character of previously released information. I think that consistency and precedence in decision making should be maintained for records of similar or some character. I don’t think a correct decision has been made as previously redactions were made to the records to meet the exemption provisions of the Archives Act whereas this time all of the records have been denied.
The respondent explained at the hearing that ASIO files are classified according to their subject matter or the persons to whom they relate. In the 1970s a file about the applicant was created. The respondent stated that the whole of the file has been provided by ASIO and a decision has been made on all records within that file. No whole records have been withheld from the applicant. In other words, the file does not contain any records of the applicant’s activities at University in 1977 that are sought by him.
CONTENTIONS
The applicant contends that there are records in existence which concern his activities at university in 1977. He bases this contention on the fact that he completed similar activities in different years and records have been made available to him concerning those years. He contends that evidence indicating the existence of further records includes:[2]
My own searching of the Australian Archives website, references to other files on my file and knowledge of statements to ASIO by fellow political activists of the time…
[2] Submission of Applicant dated 12 May 2016 at [29].
The applicant contends that the Tribunal must “resolve the question of the existence or non-existence of records in order to do its job and determine jurisdiction”.[3]
[3] Ibid at [28].
The respondent contends that the Tribunal does not have jurisdiction to inquire into the possible existence of other records. This contention can be divided into three parts. First, that the applicant has not sought review of any decision under s 43(1) of the Act. Secondly, that the Tribunal is not given jurisdiction under s 44(1) of the Act. Thirdly, the determination of whether the Tribunal has jurisdiction does not involve a consideration of whether the records exist.
The respondent concedes that records which contain the applicant’s name or other information about him may exist in either subject files or other individual files. However, it contends that the Tribunal should not direct that a search for records containing references to the applicant be undertaken. Rather that the applicant should make a further request for access to those files under s 40 of the Act.
CONSIDERATION
The Tribunal’s power to review decisions is set out under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) which 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.
Senior Member Constance (as he then was) explained in Re Staats and National Archives of Australia (2009) 50 AAR 147 at 149-150 that:
It is clear from the wording of section 25 of the Administrative Appeals Tribunal Act that the Tribunal can only review a decision if it is given the jurisdiction to do so by a specific provision of another enactment. It is essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought.
I will now consider ss 43 and 44 of the Act to review to consider whether the jurisdiction of this Tribunal extends to the particular decision in respect of which a review is sought.
Section 43
Section 43 of the Act sets out the Tribunal’s jurisdiction to review decisions made under the Act. Subsection 43(1) provides:
Subject to this section, an application may be made to the Administrative Appeals Tribunal for a review of a decision of the Archives in respect of access to a record, being:
(a) a decision refusing to grant to the applicant access to the record on the ground that the record is an exempt record or is a Commonwealth record to which Division 3 does not apply;
(b) a decision refusing to grant an extension of partial access to the record on the ground that the record is an exempt record and it is not practicable to make arrangements for giving the further access desired by the applicant in a form that would not disclose information or matter by reason of which the record is an exempt record;
(c) a decision refusing to grant to the applicant access to the record on the ground that the record has been withheld from public access pending examination of the record under section 35;
(d) a decision refusing to grant to the applicant access to the record on the ground that a determination has been made under section 37 that the record is to be withheld from public access or refusing to grant to the applicant access to the record otherwise than on specified conditions determined under that section;
(e) a decision refusing to grant to the applicant access to the record in a particular form by reason of paragraph 36(4)(a), (b) or (d); or
(f) a decision refusing to allow a further period for making an application under subsection 42(1) for a reconsideration of a decision.
The Tribunal does not have jurisdiction to review a decision of the respondent unless the decision relates to one of the categories referred to in s 43(1) of the Act. As Senior Member Constance (as he then was) explained in Re Staats and National Archives of Australia (2009) 50 AAR 147 at 151:
The Tribunal has been given the jurisdiction to review the decisions, and only the decisions, set out in subsection 43(1). They are all decisions relating to identified records. There is no reference to decisions relating to records which cannot be identified and consequently the existence or non-existence of records is not an issue for the Tribunal to consider.
The decision of the respondent dated 21 September 2015 was to partially release material with the exception of material which is exempt under paragraphs 33(1)(a), (d), and (e)(ii) and (e)(iii) of the Act. The Tribunal has jurisdiction to review the respondent’s refusal to grant to the applicant access to the record on the ground that the record is an exempt record. However, the applicant has repeatedly stated that he does not wish to seek access to exempted material.
What the applicant seeks is a review of the decision that certain documents do not exist. Unlike the Freedom of Information Act 1982 (Cth), the Act does not confer jurisdiction upon the Tribunal to review decisions that no documents have been found. None of the heads of jurisdiction conferred under s 43(1) of the Act relate to the existence of records. Nor do they provide for instances where a decision has not been made in relation to records. Therefore, the Tribunal does not have jurisdiction to review the decision on this basis.
Section 44
Section 44 of the Act confers powers upon the Tribunal in reviewing decisions of the respondent. Subsection 44(1) provides:
Subject to this section, in proceedings under this Division, the Tribunal has, in addition to any other power, the power to review any decision of the Archives upon an application for access to a record and to decide any matter in relation to that application that, under this Act, could have been or could be decided by the Archives, and any decision of the Tribunal under this section has the same effect as a decision of the Archives.
Deputy President Johnston held in Re McKnight and Australian Archives (1992) 28 ALD 95 at 114 that:
So far as the adequacy of search is concerned, I have found this the most problematic aspect of this application. I accept, in the first place, the general proposition advanced by Dr Flick that the adequacy of the filing system employed by ASIO is a matter properly within the consideration of the tribunal in order to make effective the right of a person to request access to archival matter available for public access pursuant to s 31(1) of the Act. I also accept that incidental to its review function under s 44(1) of the Act the tribunal has at its disposal such necessary powers vested in it by virtue of s 50(a) of the Act as the Director-General of the Archives could exercise under s 7 of the Act. This would entail a power to give directions relating to further searches if proper grounds exist. Not to be so armed would sterilise the tribunal's effective review of this application.
Similarly, it was held in Staats and Australian Archives [1995] AATA 485 that:
… s. 44 of the Act confers a general power on the Tribunal to review any decision of the respondent in relation to an application for access to a record.
The jurisdiction under subsection 44(1) of the Act was explained in Re Staats and National Archives of Australia (2009) 50 AAR 147. In referring to subsection 44(1), Senior Member Constance (as he then was) remarked at 150-151 that:
I accept the submission of the Archives that this subsection is a source of power for the Tribunal and is not a source of jurisdiction. The Tribunal can exercise the powers given once proceedings before it are properly instituted and within the jurisdiction given by section 43. If it was intended that the Tribunal have jurisdiction to review any decision of the Archives and provisions of subsection 43(1) would be unnecessary. The Act should not be interpreted so as to lead to such a result.
I respectfully agree with this conclusion of Senior Member Constance (as he then was) that subsection 44(1) of the Act is a source of power rather than a source of jurisdiction. I am unable to exercise the powers set out under this subsection as the Tribunal does not have jurisdiction under subsection 43(1) of the Act.
CONCLUSION
The applicant believes that records exist that relate to his activities at University in 1977. The respondent has stated that these records are not part of the applicant’s file and as such they did not form a part of the decision dated 21 September 2015.
The jurisdiction of the Tribunal under the Act is limited to the heads of jurisdiction contained in s 43 of the Act. None of these heads of jurisdiction concern records that have not been found to exist. As the Tribunal does not have jurisdiction under s 43 of the Act, I cannot exercise the powers set out under subsection 44(1) of the Act.
The respondent may have records relating to the applicant which are not contained in his file but are instead contained either in subject files or other individual files. As such, the respondent has appropriately suggested that the applicant should make a further request for access to those files under s 40 of the Act.
DECISION
I dismiss the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) without proceeding to review the decision as I am satisfied that the decision is not reviewable by the Tribunal.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD .........................[Sgd]...............................................
Associate
Dated 2 September 2016
Date of hearing 26 May 2016 Date final submissions received 10 June 2016 Applicant In person Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Judicial Review
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Standing
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Statutory Construction
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