Parsonage v Office of the Board of Studies

[2007] NSWADT 10

CITATION:	Parsonage v Office of the Board of Studies [2007] NSWADT 10
DIVISION:	General Division
PARTIES:	APPLICANT Hugh Griffith Parsonage RESPONDENT Office of the Board Of Studies
FILE NUMBER:	063114
HEARING DATES:	8/08/2006
SUBMISSIONS CLOSED:	22 August 2006
DATE OF DECISION:	10 January 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 Interpretation Act 1987
CASES CITED:	Confidential and Industry Research and Development Board [2006] AATA 387 Druett v Director-General, Department of Community Services [2003] NSWADTAP 30 Hutchinson v Director General, Roads & Traffic Authority [2004] NSWADT 48 Morgan v Director-General, Department of Education & Training [1999] NSWADT 91
REPRESENTATION:	APPLICANT J King, Agent RESPONDENT N Perram, Barrister
ORDERS:	Mr Parsonage's application is dismissed for want of jurisdication

1 By letter dated 28 December 2005 Mr Parsonage applied to the Office of the Board of Studies (“the Board”) pursuant to the Freedom of Information Act 1989 ("the FOI Act") requesting access to documents pertaining to 50 persons. The status of the Board’s response and subsequent correspondence from Mr Parsonage is the subject of some contention.

Background

2 The Board’s Acting FOI Coordinator, Ms Anne Beevor, responded to Mr Parsonage’s application on 27 January 2006. In part, her response stated:

“While, as has been mentioned above, your letter of 28 December 2005 purports to be an application for access to documents under the Freedom of Information Act, in my view it constitutes 50 applications under that statute. The first such application is made by you for access to the documents referred to in para (A) and para (B) of your letter of 28 December last. Subject to what follows, the remaining 49 applications are made by the persons numbered 1-7 (both inclusive) and 9-50 (also both inclusive) whose names are set out on pages 2 and 3 of your letter of 28 December 2005. That this so is borne out by the fact that the numerous letters received from these persons under cover of your letter of 28 December make it plain that those persons constituted you as their agent for the purposes of making these applications. Further, in the final paragraph on the first page of your letter of 28 December 2005, in substance you undertake to OBOS that, should access to the documents referred to in para (A) be granted to any of your principals, such documents will be passed on by you to the principal to whom they relate and to no one else. Accordingly, and again subject to what follows, the result of the above is that you have been constituted as an agent for 49 disclosed principals for the purpose of making applications on their behalf for access to documents under the Freedom of Information Act.

The qualification referred to in the preceding paragraph is that, as no correspondence or other documents have been received by the Office from principals [three named persons] as was promised in your letter of 28 December last, I infer that these persons have terminated your appointment as their agent for the purpose of making Freedom of Information applications on their behalf.

The consequence of the above is that of the applications received by the Office on 4 January 2006, three of them ought to be taken as having been withdrawn, and 46 of them are incomplete in that the s. 17(c) application fee has not been received in respect of them. Moreover, in so far as an application fee has been received in respect of one such application, it is not clear to me in respect of which one of the 47 that amount has been paid.

In the circumstances, and subject to what follows, it will be necessary for you to contact each of your principals who wishes to proceed with his or her application and ask that they forward the relevant $30 s. 17(c) application fee to the Office. Upon receipt of each such application fee the application to which it relates will be considered by OBOS in accordance with applicable provisions of the Freedom of Information Act. The qualification is that it will be necessary for OBOS to be advised to which of the 47 applications that remain current the $30 received with your letter of 28 December 2005 ought to be applied.”

3 Mr Parsonage replied by letter dated 6 February 2006. He accepted that the named individuals had not provided the promised correspondence but he denied that their permission had been withdrawn. Mr Parsonage stated that he disagreed with the assertion that his FOI request constituted multiple and separate applications under the FOI Act. He asserted that the objects of the FOI Act support his position. He further asserted that notwithstanding any relationship of agency extant between himself and his principals, his application is a single application.

4 In part he wrote:

“I reiterate that I have filed only a single application for many documents. That my application referred to multiple students' records or that multiple principals have constituted me as their agent is immaterial. I expect you to make a determination of my FOI request forthwith. I remind the Board that, if it is of the opinion that advance deposits are necessary pursuant to provisions of the FOI Act, it must cause written notice of that fact to me and, therein, "set out the basis on which the amount of the deposit has been calculated" (s 21(4) of the FOI Act). That said, the design of the application was made so that the processing of the request would be as standardised and straightforward as possible; I expect the Board to offset fees accordingly.”

5 The Board responded by letter dated 22 February 2006 from another Acting FOI Coordinator, Mr Geoff Carroll. In part Mr Carroll’s letter stated:

“After having given consideration to the matters raised by the third and succeeding paragraphs of your letter, I adhere to the views expressed in the second paragraph of the Office's Acting FOI Co-ordinator, Ms Beevor's letter to you of 27 January 2006.

That said, in view of the terms of the enclosures received with your letter of 6 February 2006, I shall regard only the foreshadowed application of [a named individual] as having been withdrawn.

The result is that I regard 48 of the 49 applications now received by me as being inadequate in that the s. 17(c) application fee has not been received in respect of them. Again, in so far as one s. 17(c) application fee has been received, it is not clear to me in respect of which of the 49 applications received that that sum has been paid.

Subject to changing the reference to "47" in its second last line to "49", I reiterate what was said in the final paragraph of Ms Beevor's letter to you of 27 January 2006.”

6 Mr Parsonage asserted that as he made his original application by letter dated 28 December 2005 the Board’s response by letter dated 27 January 2006 was outside the 21 day period prescribed by section 24(2) of the Freedom of Information Act 1989 with the consequence that the application is taken to have been rejected. I disagree with this argument. The Board received the application on 4 January 2005. Section 24(2) of the FOI Act makes the date of receipt the date from which time runs. The 21-day period therefore expired on 26 January 2006. However, 26 January 2006 was Australia Day and was a public holiday for the purposes of the law of NSW. Consequently, the provision of section 36(2) of the Interpretation Act 1987 applied and the Board was at liberty to respond to the application until the end of 27 January 2006. In my view the Board’s response by letter dated 27 January 2006 was within the 21-day period required by section 24(2) of the FOI Act.

Jurisdiction: lack of internal review

7 The Board contends that Mr Parsonage's right to apply to this Tribunal is conferred by section 53(1) of the FOI Act and nowhere else. It says that it is doubtful that there was in fact a reviewable decision that would ground an application. However, it argues that even if there was a reviewable decision, the right conferred by section 53(1) must be read in light of the usual requirement that applicants should exhaust internal review rights before troubling the Tribunal. Section 34 is the provision that erects the regime for internal review of a decision in relation to access to documents. The consequence of section 53(2) is that no appeal lies to the Tribunal whilst it is possible to apply for an internal review; or it is no longer possible to apply for a review and the time for applying for one has expired. The Board contends that Mr Parsonage has never made an application for internal review.

8 The Board contends that Mr Parsonage’s letter of 6 February 2006 cannot be said to be an application for an internal review under section 34. Not only did it not purport to be such, it was not accompanied by any of the indicia referred to in section 34(2). The relevant $40 fee did not accompany it nor was it addressed to the Departmental Head. Finally, the person who made the determination that led to the application for internal review could not carry out an internal review.

9 The Board submits that Mr Parsonage has failed to apply for an internal review. If the determination to treat Mr Parsonage's letter as 47 separate applications were a decision that could be reviewed under section 24, the inevitable consequence would be that Mr Parsonage was entitled to an internal review under section 34. He did not avail himself of that right and it follows that section 53(2) bars his right to apply to this Tribunal.

10 Mr Parsonage contends that he requested a review of the original determination. He argues that his letter of 6 February 2006 clearly criticized the position of the Respondent in respect of dealing with his application, clearly sought a review of the original decision and offered arguments in support of a change in determination. He submits that it would be manifestly unreasonable to construe this letter as not being a request for a review of the original decision.

11 He further submits that the failure to comply with any preconditions for internal review is irrelevant from the viewpoint of a tribunal once the agency has made a factual decision. He relies on the Commonwealth Administrative Appeals Tribunal decision in Confidential and Industry Research and Development Board [2006] AATA 387 where Deputy President Walker considered section 39T of the Commonwealth Industry Research And Development Act 1986 which provided for the review of decisions by that tribunal. The Deputy President stated at [40] – [41]:

40. While s 39T does contemplate a three-tier hierarchy of decision-making, the failure to comply with any preconditions for internal review becomes irrelevant from this tribunal’s viewpoint once the Board has made a factual decision, as it has in this case. Contrarily to the applicant’s submission, it is not the tribunal’s function to determine whether the internal review decision was correct. It has long been held that the tribunal’s proceedings are de novo and that it stands in the shoes of the original decision-maker, exercising the same powers in accordance with its own conclusions of law and fact (Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, 203-204). It can if it sees fit set aside a reviewable decision that contains no error, or affirm a decision that does contain an error.

41. To decide otherwise would be to fall into the error against which the Full Court of the Federal Court cautioned in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 at 353:

... There is no reason why the Act, which provides for a full merits review by the Tribunal of decisions which may be brought to it, should impose upon the Tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker. That would impose an unnecessary additional complexity upon the merits review process. Moreover, it may expose the Tribunal’s decision as to the existence of a valid delegate’s decision (as jurisdictional fact on the appellant’s argument) to review by a court even where (as here) the Tribunal has fully reviewed the decision on the merits. Administrative convenience strongly points to an alternative conclusion to that urged by senior counsel of the appellant. ...”

12 Mr Parsonage contends that it is therefore irrelevant that no fee was paid in respect of seeking an internal review, as the Board in fact determined or purported to determine the review application. He says that this is clear from Mr Carroll’s letter dated 22 February 2006. He says that it is plainly a review and affirmation of the original decision.

13 In the alternative, Mr Parsonage contends that the Board failed to determine the review application in the 14 day period allowed by section 34(6) of the FOI Act. Accordingly, he argues, the Board is to be taken to have made a determination refusing access to the document to which the application relates. This is sufficient to enliven the jurisdiction of this Tribunal.

14 At the hearing of the matter on 8 August 2006 Mr King argued that the Board in fact never determined Mr Parsonage’s application. He submitted that therefore, pursuant to section 24(2) of the FOI Act, the application is taken to have been determined by refusing access to the document to which it relates. He further submits that in that circumstance Mr Parsonage has a right to apply to the Tribunal, regardless of whether his application for an internal review of was competent.

15 He relies on the decision of the Tribunal’s President in Morgan v Director-General, Department of Education & Training [1999] NSWADT 91. His Honour stated at [3] - [4], and [16]-[19]

“16 Absence of Internal Review by Department : On 17 November, a few days after the 21 day period had passed, the applicant advised the Department that she regarded the absence of a reply as a deemed refusal, and applied for internal review. As noted the Department contended that, in its view, the request for amendment had not conformed to s 40. It is not clear when it first conveyed that opinion to the applicant. In relation to the request for amendment of the Minister's records, the applicant received a reply dated 4 January 1999 and lodged a request for internal review. She received no response. (As noted, there is no right to internal review in respect of amendment requests to Ministers.)

17 Normally an application can not proceed if there has been no internal review and there is such a right: see Tribunal Act, s 55(1)(b). The Tribunal may permit an application to proceed in the absence of internal review where "it is necessary for the Tribunal to deal with the application in order to protect the person's interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned": s 55(2)(c).

18 There was no objection from the Department to the matter proceeding without actual internal review and no active pursuit by either of the respondents in relation to their contention as to the adequacy of the applicant's requests for amendment (a matter to which I return at paras 41-42 below). The absence of internal review by the Department was briefly alluded to at the directions hearing on 1 March 1999.

19 The norm set by the Act is that there be internal review, a practice adherence to which is vital in procuring good standards of primary decision-making. But given the long and complex history of this matter, the attitude of the parties and the desirability of final resolution of the dispute, I am satisfied that in this particular case it is acceptable for the dispute to proceed to the Tribunal without internal review. I have also taken into account that in the circumstances of this case, the exercise of the right of internal review did not have the potential to dispose completely of the dispute because the right is only available in relation to Departmental records.”

16 Mr King also relies on the decision of the Tribunal’s Appeal Panel in Druett v Director-General, Department of Community Services [2003] NSWADTAP 30. The Appeal Panel stated at [3]-[4]:

“3 The Crown Solicitor, on behalf of the agency, provided the Appeal Panel with short informative submissions explaining the background to the decision under appeal. We agree with the fundamental proposition those submissions advance, and which commended itself to the Tribunal, that the requirement to pay the application fee is mandatory (see s 17(c) of FOIA; see also Freedom of Information (Fees and Charges) Order 1989).

4 The agency had not made a determination on the request for documents at the time the proceedings were before the Tribunal on 10 April 2002. The Tribunal accepted the agency's explanation for not having done so, in particular that the required fee had not been paid. Therefore it was not a case of a deemed refusal, which would found the Tribunal's jurisdiction. Otherwise the Tribunal's jurisdiction is only founded if there has been a determination made in relation to the request, and there has been an internal review. Mr Druett at the hearing of the appeal acknowledged that no determination or internal review had occurred at that time.”

17 Mr King also sought to draw a comparison with the provisions of the FOI Acts of the Commonwealth and other States. He submits that pursuant to section 54(3)(b) of the Freedom of Information Act 1982 (Cth) (“the Cth Act”) no internal review is required where a decision to refuse access is deemed to have been made pursuant to s 56(1) of the Cth Act. Section 56(1) of the Cth Act provides that a deemed refusal shall be taken to have been made by the 'principal officer' of the agency. Under s 54(1) of that Act, there is no right to internal review of such decisions. He submits that similar provisions appear in Freedom of Information legislation in the majority of States. He urgesd an interpretation of the FOI Act that reached a consistent approach to that in the Cth Act.

18 He concedes that section 24(2) of the FOI Act does not state by whom any deemed refusal shall be taken to have been made. However, he argues that if the relevant decision-maker is in fact taken to be the principal officer of the agency, any avenue for internal review that might have otherwise been available will be closed by operation of section 34(3)(b) of the FOI Act. Thus, Mr Parsonage would have a right to apply to the Tribunal, regardless of whether his application for an internal review was competent.

19 Mr King sought to distinguish the decision in Hutchison v Director General, Roads & Traffic Authority [2004] NSWADT 48 on the basis that it did not involve a deemed refusal, and therefore is not on point.

Applicable legislation

20 Section 17 of the FOI Act provides for applications for access to agencies' documents and the manner in which an application is to be made.

17 Applications for access to agencies' documents

An application for access to an agency's document:

(a) shall be in writing, and

(b) shall specify that it is made under this Act, and

(c) shall be accompanied by such application fee as the agency may determine, and

(d) shall contain such information as is reasonably necessary to enable the document to be identified, and

(e) shall specify an address in Australia to which notices under this Act should be sent, and

(f) shall be lodged at an office of the agency,

and may request that access to the document be given in a particular form referred to in section 27.

21 Section 24 of the FOI Act provides for the determination of applications.

24 Determination of applications

(1) After considering an application for access to a document, an agency shall determine:

(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and

(b) if access to the document is to be given - any charge payable in respect of the giving of access, and

(c) any charge payable for dealing with the application.

(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates.

(2A) Nothing in subsection (2) prevents an agency from determining that access should be given to the document even though more than 21 days have elapsed after the application was received by the agency. Sections 64 and 65 apply to access given pursuant to such a determination in the same way as they apply to access given pursuant to any other determination under this Act.

(3) This section does not require an agency to determine an application that the agency has transferred to another agency under section 20 or has refused to continue to deal with under section 22.

22 Section 34 of the FOI Act provides for an internal review of a determination. It provides:

34 Internal review

(1) A person who is aggrieved by a determination made by an agency is entitled to a review of the determination.

(2) An application for review of a determination:

(a) shall be in writing, and

(b) shall be accompanied by such application fee as the agency may determine, and

(c) shall be addressed to the principal officer of the agency, and

(d) shall specify an address in Australia to which notices under this Act should be sent, and

(e) shall be lodged at an office of the agency:

(i) if notice of the determination was given to the applicant - within 28 days after that notice was given, or

(ii) if no notice of the determination was given to the applicant - within 49 days after the application was received by the agency, or

(iii) in any case, within such further time as the principal officer of the agency may allow.

(3) A person is not entitled to a review of:

(a) a determination of an application made under this section, or

(b) a determination that has been made by the principal officer of an agency.

(4) An application under this section shall be dealt with in accordance with this Part as if it were an application under section 17.

(5) An application under this section shall not be dealt with by the person who dealt with the original application under section 17 or by a person who is subordinate to that person.

(6) An agency that fails to determine an application made under this section within 14 days after it is received by the agency shall, for the purposes of this Act, be taken to have made a determination under section 24 refusing access to the document to which the application relates.

(7) For the purposes of this section, a person is aggrieved by a determination:

(a) if the determination relates to an application made by the person under section 17 and is to the effect that:

(i) an agency refuses to give the applicant access to a document, or

(ii) access to a document is to be given to the applicant subject to deferral, or

(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the applicant, or

(iv) access to a document is to be given to the applicant subject to a charge for dealing with the application, or for giving access to a document, that the applicant considers to be unreasonable, or

(v) a charge for dealing with the application is payable by the applicant, being a charge that the applicant considers to have been unreasonably incurred, or

(b) if the determination relates to an application made by some other person under section 17 in respect of a document to which one or more of the provisions of Division 2 applies and:
(i) an agency should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or

(ii) an agency should have, and has, taken such steps, but the determination is not in accordance with the views of the person, or

(c) if the determination relates to an application made by the person under section 17 and is a determination that was taken to have been made by virtue of section 24 (2) (which provides that an agency that fails to determine an application within 21 days after the application was received by the agency is taken to have determined the application by refusing access to the document to which it relates).

(8) Subsections (3) (b) and (5) do not apply to the internal review of a determination that was taken to have been made by virtue of section 24 (2).

23 Section 53 of the FOI Act provides for an application to the Tribunal for a review of a determination.

53 Right to make a review application

(1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.

(2) A review application may not be made:

(a) while the determination is subject to a right of review under section 34 or 47, or

(b) if the determination has been subject to a right of review under section 34 or 47 but no application for such a review of the determination was made while it was subject to that right, or

(c) while any relevant complaint is being investigated by the Ombudsman.

(3) For the purposes of this section, a person is aggrieved by a determination:

(a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36 - if the determination is to the effect that:

(i) an agency or Minister refuses to give the person access to a document, or

(ii) access to a document is to be given to the person subject to deferral, or

(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or

(iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or

(v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred, or

(b) in the case of a determination that relates to an application made by some other person under section 17, 34 or 36, in respect of a document to which one or more of the provisions of Division 2 of Part 3 applies - if:
(i) an agency or Minister should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or

(ii) an agency or Minister should have, and has, taken such steps but the determination is not in accordance with the views of the person, or

(c) in the case of a determination that relates to an access application made by the person under section 40, 47 or 49 - the determination is to the effect that an agency or Minister refuses to amend the agency's records or that Minister's records, as the case may be, in accordance with the application,

and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections.

(4) In relation to decisions under this Act that are reviewable decisions under the Administrative Decisions Tribunal Act 1997:

(a) the procedures for internal reviews provided by this Act apply to the exclusion of section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997, and

(b) any reference in the Administrative Decisions Tribunal Act 1997 to an internal review of a reviewable decision under that Act is taken, in its application to a decision made under this Act, to be a reference to an internal review under this Act.

(5) The provisions of this Division apply to a review application to the exclusion of section 55 (1) (d), section 58 and Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.

24 I have indicated above that I consider that the Board’s letter of 27 January 2006 was within the 21-day period required by section 24(2) of the FOI Act. There is some doubt about whether that letter is in fact a reviewable determination for the purposes of the FOI Act. Section 34(7) of the FOI Act sets out the types of determinations that can be the subject of an internal review application.

25 Mr Parsonage’s argument is essentially that Ms Beevor's imposition of the fee for lodging the application was the determination of a charge "for dealing with the access application that the person considers to have been unreasonably incurred". If this were the case the determination would be within the ground found in section 34(7)(a)(v) of the FOI Act.

26 Ms Beevor's letter makes reference to an ‘application fee’ payable under section 17(c). She makes no mention of a ‘charge’. I agree with the Board’s submission that the ground found in section 34(7)(a)(v) of the FOI Act is directed at something other than the fee for lodging an application. However, in my view, the practical consequence of her determination that Mr Parsonage had lodged 47 applications rather than a single application is that he was required to pay significantly more than the $30 application fee.

27 The Board’s submission is that Mr Parsonage's real complaint is that Ms Beevor has made an error of law. It argues that there is no provision in the FOI Act which provides for an appeal from that determination to this Tribunal. I am inclined to agree with that submission. However, if I am wrong on that point, it is my view that Mr Parsonage's application must fail in any event because of the failure to apply for an internal review of Ms Beevor’s determination.

28 I agree with the Board’s submission that Mr Parsonage's letter of 6 February 2006 does not satisfy the requirements of section 34 of the FOI Act. In my view it is not an application for review of a determination but a request for the original determination of the application. More significantly, the letter was not accompanied by any fee. Section 34(2)(b) requires that an application for review ‘shall be accompanied by such application fee as the agency may determine’. It is clear from the paragraph 3 of Druett that the Tribunal’s Appeal Panel considered that the requirement to pay the section 17(c) application fee is mandatory. In my view, the requirement to pay the section 34(2)(b) fee is also mandatory.

29 It is by no means clear whether or not Mr Carroll is ‘a person who is subordinate to’ Ms Beevor. I note they both held ‘Acting FOI Co-ordinator’ positions. In any event, I do not agree that Mr Carroll’s letter dated 22 February 2006 is a determination of a review application. He clearly indicated that the section 17(c) application fee had not been received. If he were purporting to make a determination of an internal review application, the relevant fee would have been payable under section 34.

30 In my view, the decision of Judicial Member Higgins in Hutchinson v Director General, Roads & Traffic Authority correctly states the law in regard to the requirement an internal review. The Judicial Member stated at [31]-[36]:

31 For the reasons stated above, the Tribunal finds that the decision of the RTA that is the subject of review in this external review application is a decision coming within the terms of sub section 53(1) of the FOI Act. However, sub section 53(2) of the Act qualifies sub section 53(1) in that an application for review cannot be made while the decision is subject to a right of internal review under s.34 (s.53(2)(a)), or where the decision was the subject to an internal review and no application for review was made during the time prescribed for such an application (s53(2)(b)). In this case, there is no dispute that an application for internal review was not requested and the time for such a request has long expired. This would appear to have arisen as a result of the parties’ misunderstanding as to the effect of the orders that were made in the first internal review application.

32 As the period for an application for an internal review has expired (see s.34(2)(e)(i) FOI Act) and no provision is made for the extension of that period, in this case, Mr Hutchinson’s application for external review was made prematurely.

33 This leaves the parties’ application under sub section 55(2) of the [Administrative Decisions Tribunal Act 1997 (“the ADT Act”)] and whether that sub section can be invoked to give the Tribunal jurisdiction to hear and determine this external review application. Given the history of this matter, this could be seen as being the most practical approach. However, the Tribunal cannot give itself jurisdiction to hear and determine an application for review on this basis.

34 The Tribunal’s jurisdiction to review the decision of an administrator is found in sub section 38(1) of the ADT Act. That section only gives the Tribunal jurisdiction to review a decision of an administrator where an Act, other than the ADT Act, makes provision for the review of decisions made under that Act. That is, the Tribunal’s jurisdiction to review a decision of an administrator must be found in an Act other than the ADT Act. In this case, the relevant Act is the FOI Act and while sub section 53(1) of that Act provides for applications to the Tribunal to review the decisions made by the RTA the subject of this external review application, such applications can only be made where an internal review has been requested pursuant to section 34 of the FOI Act.

35 The fact that sub section 55(2) of the ADT Act makes reference to the Tribunal being able to deal with an application notwithstanding the fact that an internal review has not taken place is of no assistance, as the "internal review" referred to in that section is the internal review mechanism contained in section 53 of the ADT Act. This section is of general application to all decisions that are reviewable by the Tribunal and is arguably a procedural step that must be taken before an applicant is able to make an application for review. However, the "internal review" requirement under sub section 55(2) of the FOI Act is a threshold that must be met before a decision under the FOI Act is reviewable by the Tribunal. That is, it goes directly to the question of the Tribunal’s jurisdiction to hear and determine an application for review of a decision under that Act. If the FOI Act internal review requirement is not satisfied then the Tribunal has no jurisdiction to hear and determine an application for review.

36 Accordingly, as Mr Hutchinson failed to request an internal review of the RTA’s decision of 16 June 2003, the Tribunal has no jurisdiction to hear and determine his application for review.

31 I do not agree with Mr King’s submission that Hutchinson has no application because there was no deemed refusal in that matter. In my view, if Ms Beevor’s determination was in fact a reviewable determination, Mr Parsonage has failed to request an internal review of the determination and therefore the Tribunal has no jurisdiction to hear and determine his application for review.

Order

Mr Parsonage ’s application is dismissed for want of jurisdiction.