NTKT and Australian Information Commissioner (Freedom of information)

In the matter of NTKT and the Australian Information Commissioner, the Administrative Appeals Tribunal (AAT) considered whether to remit decisions for reconsideration. The applicant opposed the remittal, while the respondent acknowledged that the decisions under review were flawed.

The primary legal issue before the Tribunal was whether it possessed the power to remit decisions for reconsideration to the original decision-maker, even without the consent of the parties, and if so, in what circumstances this power should be exercised. The Tribunal also considered the applicant's submission that remittal should not be used to shield a respondent or impede the review of their conduct, particularly concerning the adequacy of searches.

The Tribunal determined that its power to remit decisions under section 42D of the *Administrative Appeals Tribunal Act 1975* could be exercised without the consent of the parties. The discretion to remit is unfettered, to be exercised according to the specific circumstances of the case, with the overarching object of achieving the quick and efficient resolution of disputes. While certain circumstances, such as a decision-maker supporting their decision on a new basis or inadequate findings, might militate against remittal, the Tribunal found that the current situation, where the respondent acknowledged flawed decisions, was analogous to circumstances where remittal has been considered appropriate. This included situations where a decision-maker has not applied their mind to the matter or where a decision is considered a "sham," and importantly, where a respondent acknowledges a flawed decision at an early stage, making remittal a sensible course to save time and costs.

Accordingly, the Tribunal remitted the decisions the subject of review in proceedings 2022/5615 and 2022/5616 to the decision-maker for reconsideration.