Mulder and Centrelink

[2004] AATA 681

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 681

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/188

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JACK D. MULDER

Applicant

And CENTRELINK

Respondent

WRITTEN REASONS FOR ORAL DECISION

Tribunal Deputy President Don Muller

Date29 June 2004

PlaceBrisbane

Decision The Tribunal dismissed the application.

................SIGNED..............................

D.W. MULLER
  DEPUTY PRESIDENT           

CATCHWORDS

FREEDOM OF INFORMATION – decision received by Applicant within 3 days – no internal review – AAT has no jurisdiction – application dismissed

Freedom of Information Act 1982: ss15(5)(b), 54, 55, 56(i)

Administrative Appeals tribunal Act 1975

WRITTEN REASONS FOR ORAL DECISION

Deputy President Don Muller        

1. The Applicant, Jack Mulder, requested written reasons for a decision made by the Tribunal on 8 June 2004 to dismiss the application, pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 on the basis the Tribunal had no jurisdiction to review the decision.

2.      The Applicant stated in his application for review form dated 11 March 2004, received by the Brisbane Registry of the Administrative Appeals Tribunal on 12 March 2004, that he had made a Freedom of Information request to Centrelink on 4 February 2004 for:

“FOI Request access documents (form S1031.0012)

□        Those Manuals and Rules Centrelink used to make the decision.

□        Those documents to support the reason why NSA was cancelled.”

3.      The Applicant claimed in his application for review that he had not received a written decision within 28 days of his FOI request and that he was therefore entitled to make an application for review to the AAT.

4. The actual time limit set out in section 15(5)(b) of the Freedom of Information Act 1982 (the FOI Act) is “not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency”. In the Applicant’s case, where he submitted his request to Centrelink on 4 February 2004, the time within which he was to be notified pursuant to the FOI Act was on or before midnight on 5 March 2004.

5.      In the ordinary course of events an applicant must first seek an “internal review” of a decision on an FOI application before proceeding to seek review at the AAT (see sections 54 and 55 of the FOI Act).

6.      The Applicant did not seek an “internal review” because he claims that he did not receive a decision on his FOI request of 4 February 2004, within the time limit.  He claimed to be able to bypass the “internal review” because of s.56(1) of the FOI Act which provides:

“56 Application to Tribunal where decision delayed

(1)       Subject to this section, where:

(a)a request has been made to an agency or Minister in accordance with section 15;  and

(b)the period of 30 days, in relation to the request, mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), has expired since the day on which the request was received by or on behalf of the agency or Minister;  and

(c)notice of a decision on the request has not been received by the applicant;

The principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document.”

7.      The Tribunal received into evidence an affidavit by Michelle Ebbeck of Centrelink, who made a decision on 27 February 2004, to grant the Applicant full access to the documents he requested.  She said in her affidavit:

“On 7 June 2004, I Michelle Ebbeck of Centrelink Area Pacific Central in the State of Queensland, public servant, make oath and say:

1.        I am a Freedom of Information Officer of Centrelink in Area Pacific Central.  I have been a Freedom of Information Officer since November 2001.

2.        On 4 February 2004 the Applicant lodged a Freedom of Information request at IPSWICH Centrelink office requesting ‘those documents held by Centrelink to show those actions/decisions taken – what careful decisions made – what investigations done prior to decision made on or about 27/1/04 ‘cancel NSA, because we have been unable to contact you at the address you gave us’.

3.        On 27 February 2004 I made a decision granting access to the documents requested in full.

4.        I set out my decision in a letter addressed to the applicant ‘Mr JD Mulder 933 Reckumpilla Street MOUNT ALFORD QLD 4310’, the address which was given on the applicant’s request.  A copy of my letter, and the documents enclosed with it, are at T3 (pages 4 to 17) of the section 37 documents for these proceedings.  I also sent a second letter to Mulder on that day in relation to an earlier request for access to documents he had made on 14 January 2004 (now the subject of Tribunal proceedings Q2004/125).

5.        The procedure for despatch of mail from Centrelink Area Pacific Central is for it to be placed on the central mail desk of the Gold Coast Business Integrity section of Centrelink, which is situated approximately 25 metres from my desk.  The mail is then cleared daily and taken to the post office between the hours of 3pm to 4pm.  A mail roster has been established for each team within Gold Coast Business Integrate and mail responsibilities are rotated on a weekly basis.  In this instance, the Tip-off team was responsible for mail despatch on 27 February 2004.

6.        I personally took my letter to Mr Mulder at approximately 2pm on 27 February 2004 and placed them on the mail desk in the pigeon-hole allocated to outgoing post office mail for despatch by ordinary post.  There was no indication that my letters were not despatched with all other office mail for that day.  They were never returned from the post office as undeliverable.

7.        On 1 March 2004 the Applicant contacted Centrelink, using Telstra’s reverse charge facility, claiming to be calling from a public phone.  The call came via the Telstra switchboard operator saying Mr Mulder was on the line wishing to speak to me and would I accept the reverse charges?  I replied, yes.  I have had no prior dealings with the applicant and do not believe he would have been able to ask to speak to me directly unless he had received my letters of 27 February 2004.

8.        We had a conversation which proceeded by reference to my two letters of 27 February 2004 and the documents enclosed with my letter regarding his request of 4 February 2004.  The conversation also related to another request for annotation of records which was received at Ipswich Centrelink office on 14 January 2004.  There is no doubt in my mind that the applicant was in possession of my two letters of 27 February 2004 when this conversation took place.”

8.      I accepted the contents of Ms. Ebbeck’s affidavit as being true and correct.  I concluded that the Applicant did in fact receive Ms. Ebbeck’s decision on or before midnight on 5 March 2004.

9.      The Applicant should have sought an “internal review” of the decision before making application to the AAT.

10.     The AAT has no jurisdiction to hear this matter, consequently the application was dismissed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
B. Hitchcock, Pers Asst

Date/s of Hearing  8 June 2004
Date of Decision  8 June 2004
Written reasons for decision     29 June 2004
Applicant   Mr. Mulder, himself

Solicitor for the Respondent      Mr. Peek, Australian Government Solicitor’s office