PAUL FLINTOFT and CENTRELINK

[2009] AATA 787

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 787

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3692

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL FLINTOFT

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date14 October 2009

PlaceBrisbane

Decision The Tribunal decides it does not have jurisdiction to review the application.

....................[Sgd]..........................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – Review of decision under Freedom of Information Act – Whether there has been valid interval review – Application fee not paid – Application fee subsequently paid – No valid internal review – Whether Tribunal has jurisdiction to review a decision where no valid internal review – No jurisdiction

Freedom of Information 1982 (Cth) ss 54, 55

REASONS FOR DECISION

14 October 2009 Senior Member Bernard J McCabe         

1.      Mr Paul Flintoft has asked the Tribunal to review a decision of Centrelink to refuse him access to certain documents under the Freedom of Information Act 1982 (“the Act”). Centrelink has questioned whether the Tribunal has jurisdiction to review a decision in circumstances where there is some doubt over whether there has been a valid internal review of the decision. Sections 54 and 55 of the Act effectively require that an applicant obtain an internal review before approaching the Tribunal. Has there been a valid internal review that would authorise the Tribunal to review the decision?

2.      The difficulty in this case is that Mr Flintoft did ask Centrelink to undertake a review when he did not get satisfaction following the initial decision. He was not asked to pay an application fee in connection with the request for reconsideration when it was lodged, although I infer he must have been aware that an application fee was payable. He was subsequently asked to pay an application fee or seek a waiver before the application could be processed. That request was made by internal reviewer, Ms Kathryn Johnson, in an email from her to the applicant dated 3 April 2009. Mr Flintoft points out that the note from Ms Johnson did not indicate the quantum of the application fee. Mr Flintoft responded by email on 2 June 2009. His email asked for a waiver. He did not pay an application fee at the time. He did not hear back from Ms Johnson, and he said he assumed his request for a waiver had been granted. (I note Ms Judy Moller, the officer who had dealt with his initial request, apparently waived the application fee associated with his original application. That is apparent from the hand-written comments on Mr Flintoft’s letter to Ms Moller of 19 November 2008.) In the time that followed, Mr Flintoft said he emailed Ms Johnson on several occasions, but he again heard nothing. After sufficient time had elapsed, he assumed the reconsideration was not resolved in his favour and he commenced these proceedings.

3.      After the respondent raised the question over the absence of the application fee and its implications for the Tribunal’s decision, Mr Flintoft paid the $40 application fee. But the respondent said that may not cure the defect. It has subsequently prepared a reconsideration decision, but said it cannot formally reach or implement that view while the Tribunal proceedings are on foot.

4.      The respondent did not respond to the applicant’s correspondence in a timely way. If it had, and if the officers concerned had been explicit in their advice, we might not have reached this point. But I must reluctantly accept that the reconsideration process did not begin until the applicant’s cheque in payment of the fees was received or a decision was made to waive the requirement. It follows there is no reviewable decision before the Tribunal.

5.      I am satisfied the Tribunal does not have jurisdiction to deal with the application. Mr Flintoft’s filing fee should be refunded.

I certify that the 5 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:...............................[Sgd]...............................................
  Michael Buckingham, Associate

Date of Hearing  15 September 2009
Date of Decision  14 October 2009   
Solicitor for the applicant          Self-represented
Solicitor for the respondent      Australian Government Solicitor