NTKT and Australian Information Commissioner (Freedom of information)
[2023] AATA 2766
•29 August 2023
NTKT and Australian Information Commissioner (Freedom of information) [2023] AATA 2766 (29 August 2023)
Division:Freedom of Information Division
File Numbers: 2022/5615; 2022/5616
Re:NTKT
APPLICANT
Australian Information CommissionerAnd
RESPONDENT
DECISION
Tribunal:Senior Member C. J. Furnell
Date:29 August 2023
Place:Melbourne
Pursuant to s 42D(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal remits the decision the subject of review in each of proceeding 2022/5615 and proceeding 2022/5616 to the decision-maker for reconsideration.
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Senior Member C. J. Furnell
Catchwords
PRACTICE AND PROCEDURE – Administrative Appeals Tribunal Act 1975, s 42D – whether decisions should be remitted to decision-maker for reconsideration – where Applicant opposes remittal – where respondent acknowledges that the decisions the subject of review are flawed – consideration of power to remit – appropriate to exercise discretion to remit the decisions in the circumstances – decisions remitted to decision-maker for reconsideration
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)
Cases
N1112/00A v Minister for Immigration and Multicultural Affairs [2000] 32 AAR 76
Browne v Cmr of Taxation [2013] AATA 866
Kupara and National Disability Insurance Agency [2022] AATA 3091
Lavery and Registrar, Supreme Court of Queensland (No 2), Re (1996) 23 AAR 52
NT98/41–48 and Commissioner of Taxation [1998] AATA 311Pelovski and National Disability Insurance Agency [2022] AATA 3380
REASONS FOR DECISION
Senior Member C. J. Furnell
29 August 2023
On 1 August 2023, the respondent in two proceedings before the Tribunal (numbered 2022/5615 and 2022/5616) sought to have the Tribunal remit the decision the subject of review in each proceeding for reconsideration.
The Tribunal has power to so remit decisions the subject of its review “[a]t any stage” of the review proceeding.[1]
[1] Administrative Appeals Tribunal Act 1975, s 42D.
The question now in issue is whether that power should be exercised in relation to each relevant proceeding.
I have decided that it should, for the reasons which follow.
Proceeding 2022/5615
In proceeding 2022/5615, eight documents were identified by the Office of the Australian Information Commissioner as falling within the scope of an access request made by the applicant under the Freedom of Information Act 1982 (the Act).
Pursuant to the decision the subject of review in the proceeding, access was given to four of the documents. As to each of the other four documents, access was given to an edited copy of the document, deleting matter considered by the respondent to be:
(a)exempt by reason of s 47E(d) of the Act (ie, matter the disclosure of which would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of an agency); or
(b)irrelevant to the applicant’s access request.
In an email of 1 August 2023, the respondent advised that due to “…the passage of time, the reasons for the application of the exemption over the material no longer exist. Consequently, the respondent no longer wishes to maintain the exemption claim and is prepared to release the documents in issue to the applicant (excluding matter that is irrelevant on the terms of the FOI request).”
Given its preparedness to provide access to all documents identified as falling within the scope of the applicant’s access request (but omitting material regarded as irrelevant), the respondent submits that a remittal of the decision the subject of review is appropriate.
The applicant disagrees.
Proceeding 2022/5616
In proceeding 2022/5616, the applicant requested access to “any OAIC created document involving policy views on methods of collection of FOI charges by FOI agencies - whether those policy views are recommendations, about standardising practices or other regulatory guidance/views.”.
Access was refused on the basis that a practical refusal reason existed in relation to the applicant’s request.[2] It was said that processing the request would result in a substantial and unreasonable diversion of the respondent’s resources.
[2] See the Act, s 24.
In an email of 1 August 2023, the respondent advised that in “…June 2023, after the commencement of the AAT process, the respondent determined that it would be practicable to process the request and undertook fresh document searches. As a result of those searches, it identified 6 documents that could be considered to fall within the scope as they may relate, in summary, to methods of collection of FOI charges, which was broadly the subject matter of the applicant’s FOI request.”
In that email, the respondent proposed that its access refusal decision be remitted to enable it “…to make a fresh decision on the FOI request, involving the assessment of the documents and the making of a substantive access grant or refusal decision.”
Clearly, the respondent contemplates that, on remittal, the decision the subject of review would be substituted by another decision granting or refusing access to each of the six identified documents. That substitute decision would then be the decision the subject of review in the proceeding. The applicant would then elect to proceed with the review of the substitute decision or withdraw his review application.[3]
[3] Administrative Appeals Tribunal Act 1975, s 42D(4).
Applicant submissions
In an email of 1 August 2023, the applicant submitted that non-consensual remittal “is an exceptional discretion” and “three factors …must be met before non-consensual remittal could be considered” and none of them “apply”:
(a)“The case before the Tribunal is one arguing over the reasons for a decision, but not the decision itself…”
(b)“The case is brought solely to have the Tribunal provide reasons for an uncontested decision.”
(c)“That where factors a and b are true, it would be neither fair, just, economical, informal or quick for the Tribunal to proceed with the matter.”
The applicant contends that none of these factors apply in the circumstances.
In particular, it is said that:
(a)the respondent “still contests the release of documents” and that the respondent “does not intend to give any access grant decisions, but only possibly vary its access refusal decisions.”
(b)“It would be neither fair, just, economical, informal or quick for the Tribunal to non-consensually remit the case… especially given the delay by the Respondent in bringing this s 42D application just before a direction hearing for setting the matter for hearing.” In this regard, it is said that a remittal will inevitably cause delay.
In addition, the applicant submits that it is not the purpose of the remittal power “to be deployed in late stage cases to shield a respondent” and that non-consensual remittal “will impede review of” the respondent’s conduct in not having carried out reasonable searches.
Consideration
The Tribunal’s power to remit for reconsideration a decision the subject of its review may be exercised without the consent of the parties concerned.[4]
[4] Pelovski and National Disability Insurance Agency [2022] AATA 3380 at [21]; Kupara and National Disability Insurance Agency [2022] AATA 3091 at [67].
It is not the case that, absent consent of the parties, the remittal power ought only be exercised where the three factors identified by the applicant apply.
The circumstances in which it is appropriate to exercise the power have not been generally (let alone exhaustively) defined. According to DP Frost in Browne,[5] the “…statute leaves the discretion unfettered, to be exercised according to the circumstances of the particular case, having regard to any considerations thought by the Tribunal to be relevant, and confined only by the subject matter and object of the section. That object being to help the Tribunal to achieve the quick and efficient resolution of disputes.”
[5] Browne v Cmr of Taxation [2013] AATA 866.
While the remittal power may be open-ended, there have nevertheless been several decisions identifying particular circumstances where the power should not be exercised and particular circumstances where it was felt appropriate to exercise the power.
As for circumstances where it has been suggested that the power ought not be exercised, they include where the remittal is sought “simply because inadequate findings of fact, references to evidence or reasons have been given” or “…because a decision-maker supports his, her or its decision on a basis different from that originally put forward.”[6]
[6] Re Lavery and Registrar, Supreme Court of Queensland (No 2) (1996) 23 AAR 52 at 56-57.
They are not the circumstances in which the respondent now seeks remittal of the proceedings.
As for circumstances where it has been suggested that it may be appropriate to exercise the power, they include “where the reasons [for the decision the subject of review] are so unsatisfactory that it is fair to infer that the decision maker has not applied his or her mind, or where the reasons are indeed aptly categorised as a “sham”…”.[7]
[7] NT98/41–48 and Commissioner of Taxation [1998] AATA 311 at [12].
Of particular relevance to these proceedings, however, is another circumstance where the exercise of the power was considered to be appropriate. In N1112/00A,[8] Emmett J endorsed an exercise of the power at an early stage of a proceeding to correct what the respondent acknowledged to be a flawed decision. His Honour stated that:
…while the object of s 42D is not entirely clear, it would apply where, at an early stage in a proceeding before the Tribunal, it was apparent that the respondent acknowledged that a decision was flawed. In order to save the time of the Tribunal and the costs that would be involved in a proceeding before the Tribunal, it may well be appropriate in such circumstances, that the Tribunal, even though not by consent, remit a matter back to the decision maker.
[8] N1112/00A v Minister for Immigration and Multicultural Affairs [2000] 32 AAR 76 at 82.
An exercise of the power to correct a flawed or erroneous decision was also endorsed by DP Frost in Browne. There, a submission that the respondent should be “explicitly denied the opportunity to correct what he now sees as an erroneous decision” was characterised as a “perverse notion”.[9]
[9] Browne v Cmr of Taxation [2013] AATA 866 at [25].
Here, the respondent acknowledges that the decisions the subject of review are flawed. As to:
(a)2022/5616, contrary to its decision, the respondent now considers that a practical refusal reason does not exist in relation to the applicant’s request; and
(b)2022/5615, contrary to its decision, the respondent now considers that the documents in question are not conditionally exempt under s 47E(d) of the Act.
Moreover, each proceeding is at an early stage. No directions to bring the matters to a hearing have been made.
As for the applicant’s contention that the respondent “still contests the release of documents,” that does not appear to be the case. Even if it was, however, why that should preclude a remittal is unclear.
The applicant invokes the objective to be pursued by the Tribunal in carrying out its functions when contending that it “would be neither fair, just, economical, informal or quick for the Tribunal to non-consensually remit the case.”[10]
[10] Administrative Appeals Tribunal Act 1975, s 2A.
To the contrary, as I see it, to have the Tribunal continue to review the decisions which the respondent now accepts are flawed would be contrary to that objective. In particular, it would not be fair and economical, and nor would it promote public trust and confidence in Tribunal decision-making, to have it continue to review a decision when:
(a)at an early stage of the proceeding, both parties accept is wrong;
(b)insofar as issues remain in dispute between the parties, those issues are not reflected in the decision currently the subject of review; and
(c)there is a realistic prospect that a decision made on reconsideration will resolve any issues that remain in dispute between the parties.
As DP Frost stated in Browne, “[o]ne of the aspirations of the executive arm of government should be to make correct decisions in relation to the affairs of individuals and organisations; it makes no sense to stand in the way of a decision-maker who is trying to do precisely that.”[11]
[11] Browne v Cmr of Taxation [2013] AATA 866 at [25].
Decision
The Tribunal remits for reconsideration the decision the subject of review in each of proceeding 2022/5615 and proceeding 2022/5616.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell
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Associate
Dated: 29 August 2023
Hearing: On the papers Applicant: Self-represented Solicitors for the Respondent: The Australian Government Solicitor
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