Powell v Australian Information Commissioner
[2019] FCCA 39
•9 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| POWELL & ANOR v AUSTRALIAN INFORMATION COMMISSIONER & ANOR | [2019] FCCA 39 |
| Catchwords: ADMINISTRATIVE LAW – Freedom of information – review of decisions – Commonwealth – decision not to continue with review. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5(1), 5(2), 16 Freedom of Information Act 1982 (Cth), ss.24AA, 54W, 54W(b), 54X(2), 55B(3), 57A, 70 |
| Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 | ||
| First Applicant: | JACKSON POWELL | |
| Second Applicant: | CALUM THWAITES |
| First Respondent: | AUSTRALIAN INFORMATION COMMISSIONER |
| Second Respondent: | AUSTRALIAN HUMAN RIGHTS COMMISSIONER |
| File Number: | BRG 550 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 12 September 2017 |
| Date of Last Submission: | 12 September 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 9 January 2019 |
REPRESENTATION
| Counsel for the First and Second Applicants: | Mr Morris QC - direct brief |
| Solicitors for the First Respondent: | Holding Redlich |
| The Second Respondent entering a submitting appearance |
ORDERS
The decision of the first respondent made on 5 June, 2017 not to continue to undertake an IC review (as that term is defined in the Freedom of Information Act 1982 (Cth)) between the applicants and the second respondent be set aside with effect from the date of this order;
Remit the matter to which the decision the subject of order 1 hereof relates, to the first respondent for further consideration and determination according to law;
The first respondent pay the applicants’ costs of and incidental to the application to be agreed between the parties and failing agreement to be fixed by the Court and for that purpose, in the event that the parties are unable to agree on the amount of the costs within 28 days of the date of these orders:
(a)the applicants shall file and serve written submissions as to the amount of the costs sought by them and the basis upon which the amount sought is calculated;
(b)the respondents shall, within 14 days thereafter, file and serve written submissions as to the amount of the costs sought by the applicants; and
(c)the fixing of such costs be undertaken by the Court without any further oral hearing unless the parties notify the Court of the requirement of a further oral hearing on the question of the amount of the costs within seven days of the filing of the respondents’ submissions on costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 550 of 2017
| JACKSON POWELL |
First Applicant
| CALUM THWAITES |
Second Applicant
And
| AUSTRALIAN INFORMATION COMMISSIONER |
First Respondent
| AUSTRALIAN HUMAN RIGHTS COMMISSIONER |
Second Respondent
REASONS FOR JUDGMENT
Pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) the applicants seek judicial review of a decision of the Australian Information Commissioner made on 5 June, 2017. That decision, purportedly made pursuant to s.54W(b) of the Freedom of Information Act 1982 (Cth), was to discontinue a review by the Information Commissioner of an earlier decision of the Australian Human Rights Commission to refuse the applicants’ access to certain documents they had requested as part of a freedom of information request that they made on 1 August, 2016.
In these proceedings, and by way of very brief summary, the applicants argued that the Information Commissioner’s decision should be set aside and an order should be made that the Information Commissioner proceed to hear and determine the review, because:
a)the Information Commissioner, in making the decision, breached the rules of natural justice when:
i)his delegate formed a “prejudgement” as to what course the Information Commissioner should take regarding the review based on the history of the proceedings. Moreover, he did so without affording the applicants the opportunity to make submissions to change the delegate’s view, but only the “opportunity to comment”;
ii)his delegate failed to deal with the applicants’ complaints in a manner as described in what is described in argument as the “website commitment”;
b)the Information Commissioner’s delegate, in making the decision by, improperly exercised the discretionary power under s.54W(b) of the FOI Act by:
i)taking irrelevant considerations into account;
ii)failing to take relevant considerations into account;
iii)exercising the power for a purpose other than that for which the power was conferred;
iv)exercising the power in bad faith;
v)exercising the power in a way that was so unreasonable that no reasonable person could have so exercised the power; and
vi)exercising the power in a way that constituted an abuse of the power.
The second respondent did not appear in these proceedings. The first respondent appeared and opposes the application. In summary, the first respondent submitted:
a)the Information Commissioner, in making the decision, did not breach the rules of natural justice when:
i)his delegate formed a “prejudgement”. The first respondent contended that the expression of a “view” by the delegate was not tantamount to a “prejudgement” but was “merely a catalyst to obtaining further information” that would then, along with all other information, be “take[n] into account… before making a final decision.”;
ii)his delegate failed to deal with the applicants’ complaints as described in the “website commitment,” as the “commitment” was outdated and not reflective of Information Commissioner procedure. But in any event the website commitment was relevant to complaints made to the Office of the Information Commissioner about other agencies and not to complaints made about the Office of the Information Commissioner;
b)the Information Commissioner, in making the decision, did not improperly exercise the discretionary power under s.54W(b) in any of the ways contended for by the applicants.
Background
On 1 August, 2016 the applicants through their senior counsel Mr Morris QC, made a request for documents from the AHRC relating to certain previous activity involving the AHRC. The request sought the production of eight categories of documents. The initial response from the AHRC indicated that the officer authorised to determine the request intended to refuse access to documents in five of the nominated categories because the work involved in processing the request in its then form would substantially and unreasonably divert the resources of the AHRC from its other operations due to the scope of the request. Such a reason to refuse a request was provided for in s.24AA of the FOI Act. There was correspondence between the applicants’ senior counsel and the AHRC with a view to narrowing the scope of the applicants’ requests.
By 30 August, 2016 the AHRC had released to the applicants documents within three of the eight categories requested. As for the remainder, there had been no agreement reached about narrowing the scope of the applicants’ requests and the AHRC asserted that the work involved in processing the request would substantially and unreasonably divert their resources due to the scope of the request. A delegate of the AHRC decided to refuse access to those categories of documents on that basis.
The relevant categories of documents subject to the refusal decision were:
(2) Documents recording each instance on which the AHRC has, in the case of a respondent other than an employee respondent [as defined in the applicants’ request] or a wayward respondent, [as defined in the applicants’ request] either:
a. given the respondent no opportunity to respond to a complaint (other than a decidedly unmeritorious complaint [as defined in the applicants’ request]); or
b. allowed to the respondent less than 21 days to respond to a complaint (other than a decidedly unmeritorious complaint).
(3) In respect of each instance mentioned in paragraph (2), documents explaining, recording, reflecting or discussing the reasons why the AHRC either (as the case may be):
a. gave the respondent no opportunity to respond to the complaint; or
b. allowed to the respondent less than 21 days to respond to the complaint.
(5) Documents recording each instance on which the AHRC has, in the case of a respondent other than an employee respondent or a wayward respondent, and in the case of a complaint other than a decidedly unmeritorious complaint:
a. failed either to inform the respondent, or to ensure that the respondent was informed by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the complaint against the respondent; or
b. failed either to notify the respondent, or to ensure that the respondent was notified by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the conciliation conference; or
c. first informed the respondent of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to a conciliation conference in respect of the complaint against the respondent; or
d. first notified the respondent of a conciliation conference in respect of a complaint against the respondent, or caused or allowed the respondent to be first so notified, less than 21 days prior to the conciliation conference.
(6) In respect of each instance mentioned in paragraph (5), documents explaining, recording, reflecting or discussing the reasons why the AHRC either (as the case may be):
a. failed either to inform the respondent, or to ensure that the respondent was informed by somebody other than the AH RC, prior to a conciliation conference in respect of a complaint against the respondent, of the complaint against the respondent; or
b. failed either to notify the respondent, or to ensure that the respondent was notified by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the conciliation conference; or
c. first informed the respondent of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to a conciliation conference in respect of the complaint against the respondent; or
d. first notified the respondent of a conciliation conference in respect of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to the conciliation conference.
(8) Documents illustrating, by comparison or contrast with the complaint lodged by Ms Prior with the AHRC on or about 27 May 2014, the parameters of what is meant by the expression, “complaints ... that require a response to long and detailed allegations”.
On 30 August, 2016 the applicants applied to the Office of the Australian Information Commissioner for a review of the AHRC’s decision to refuse access to the five categories of documents the subject of the AHRC’s refusal. The Office of the Information Commissioner emailed the applicants on 1 September, 2016 acknowledging that it had received the application. The email also informed the applicants that the application would be assessed and they would be advised of the next steps within 21 days.
On 11 October, 2016 the applicants wrote to Ms Nicolaou, a delegate within the Office of the Information Commissioner who was dealing with the review. The applicants sought an update on the progress of the Information Commissioner review.
This is the first of a long series of correspondence regarding the progress of the review which was characterised by two things: the legal representative for the applicants expressing growing frustration about the progress of the review and officers of the Office of the Information Commissioner apologising for the delay and informing the applicants of the imminence of progress.
Between 11 October, 2016 and 20 October, 2016 correspondence passed between the applicants, the AHRC and Ms Nicolaou about narrowing the scope of the applicants’ request in respect of the five disputed categories of documents. On 19 October, 2016 the AHRC wrote to Ms Nicolaou expressing its view that, even if the scope was narrowed, the applicants’ request would still substantially divert the resources of the AHRC. This view was not communicated to the applicants at the time.
On 7 December, 2016 and again on 9 December, 2016 the applicants emailed Ms Nicolaou enquiring as to the progress of the review. In response, on 13 December, 2016 Ms Nicolaou apologised for the delay and confirmed the matter had been allocated to Ms Harlock, who is described in the materials before me as the “case review officer”.
On 30 December, 2016 the applicants emailed Ms Nicolaou informing her they had yet to hear from Ms Harlock.
On 5 January, 2017 Ms Harlock emailed the applicants informing them that she had prepared a “preliminary view” after reviewing the application and the AHRC’s submissions. The applicants responded on the same date, expressing surprise at the “radical change in direction”. Ms Harlock responded on the same date stating that the applicants’ revised request had been forwarded to the AHRC and informed the applicants of the AHRC’s view that the applicants’ request was still too large to process. The applicants’ senior counsel responded on the same date asking for details of the AHRC’s response. To that point, the AHRC’s response had not been shared with the applicants.
On 16 January, 2017 the applicants emailed Ms Harlock seeking an update on the progress of the Information Commissioner review. On 17 January, 2017 Ms Harlock and the AHRC corresponded regarding the scope of the applicants’ request and the AHRC’s electronic document management system. Also on 17 January, 2017 Ms Harlock wrote to the applicants informing them that, before providing her “preliminary view” to them, the Information Commissioner had asked the AHRC for further information about the electronic document management system and its reporting capacity. She also informed the applicants that once the information was in her possession the Information Commissioner would consider the position and advise the applicants accordingly.
On 18 January, 2017 the AHRC responded to Ms Harlock’s queries regarding its electronic document management system. The applicants were not party to the communications between the AHRC and the Ms Harlock and copies of that correspondence were not at that time provided to them.
On 20 January, 2017 Ms Harlock provided her “preliminary view” to the applicants. The view expressed was:
I have formed the preliminary view, as case officer in this matter, that the AHRC has no documents falling within the scope of your request. I therefore intend recommending to the Information Commissioner that the decision under review should be affirmed.
…
My preliminary view
Accordingly, it is my preliminary view that the AHRC does not hold the documents you seek and cannot produce them using a computer or other equipment ordinarily available for retrieving or collating stored information.
Next steps
In light of the above, can you please let me know in writing whether you wish to withdraw this application for Information Commissioner review by close of business on Friday 3 February 2017.
If you wish to proceed with your application for Information Commissioner review, please provide submissions in response to the above by close of business on Friday 3 February 2017. If this matter proceeds to a decision by the Information Commissioner, a recommendation in line with this preliminary view will be provided to him.
On 27 January, 2017 the applicants, by their senior counsel, emailed submissions to Ms Harlock in response to her “preliminary view”. Amongst other arguments, the applicants contended that the Information Commissioner’s delegate had misapprehended both the nature and scope of the applicants’ requests and had misinterpreted the applicants’ indication that they might be willing to modify the scope of their request. The applicants received an automated email stating Ms Harlock would return from leave on 30 January, 2017.
On 15 February, 2017 the applicants wrote to Ms Harlock seeking an update on the progress of the review. Not getting a response, the applicants wrote a further email on 1 March, 2017. On the same date, Ms Harlock responded, apologising for the delay as she had unexpectedly been out of the office and would not return until 2 March 2017. She also informed the applicants she would provide a substantive update the following week.
On 12 March, 2017 the applicants complained, pursuant to s.70 of the FOI Act, to the Office of the Information Commissioner in relation to the progress of the review and its handling by Ms Harlock.
The applicants also requested access to communications between the AHRC and the Office of the Information Commissioner relating to the review, as well as documents relating to the handling of the review. That is to say, the applicants made a freedom of information request to the Office of the Information Commissioner in respect of the review that it was then undertaking. After emails to the Office of the Information Commissioner on 22 March, 2017 and 24 March, 2017 from senior counsel for the applicants about issues concerning the response or acknowledgement of the complaint and request, Mr Solomon, a delegate of the Information Commissioner sent an email on 29 March, 2017 seeking to address the complaint and the various allegations concerning Ms Harlock’s conduct.
On 4 April, 2017 Ms Harlock wrote to the applicants stating “that the matter would shortly be subject to a decision by the [Information Commissioner]”.
On 4 April, 2017 and 12 April, 2017 the applicants responded to Mr Solomon’s email of 29 March, 2017. Receipt of the emails was acknowledged by him on 6 April, 2017 and 12 April, 2017.
In their email of 4 April, 2017 to Mr Solomon, the applicants also applied for what was subsequently treated by the Information Commissioner as, a “formal and open” hearing of the matter. That has been treated by the parties as a request pursuant to s.55B of the FOI Act.
Section 55B of the FOI Act provides for a review party to make an application to the Information Commissioner requesting that the Information Commissioner hold a hearing “for the purposes of the IC review.” If the Information Commissioner decides to hold a hearing, then he “must give all review parties a reasonable opportunity to make submissions on the application”: FOI Act s.55B(3). The review parties in this matter were the parties to the FOI request subject to the review, i.e. the applicants and the second respondent.
The correspondence from senior counsel for the applicants demonstrates that the applicants sought a hearing because they were concerned the “preliminary view” formed by Ms Harlock was influenced by “private correspondence with the AHRC”. They were of the opinion that the only way to avoid “a palpable denial of natural justice” was “for the Commissioner to conduct a formal and open hearing”.
On 11 April, 2017 Ms Harlock informed the AHRC of this and invited them to make submissions.
On 19 April, 2017 the AHRC wrote to the Office of the Information Commissioner and submitted that it was neither necessary nor appropriate for the Information Commissioner to undertake the hearing requested by the applicants.
On 27 April, 2017 Ms Harlock wrote to the applicants providing the AHRC’s submissions to the hearing request and asking that any further submissions regarding the s.55B application be provided by close of business on 3 May, 2017. The applicants responded to Ms Harlock on the same date. They also wrote to Mr Solomon complaining that Ms Harlock had been privy to their complaint and the s.55B application.
On 16 May, 2017, Mr Solomon sent letters to the applicants (by their senior counsel) and the AHRC providing the Information Commissioner’s preliminary view about the initial review (as opposed to the request for a hearing as part of that review). That view was that that the interests of the administration of the FOI Act made it desirable that the AHRC’s FOI decision of 30 August, 2016 be considered by the Administrative Appeals Tribunal and that under s.54W(b) of the FOI Act the Office of the Information Commissioner’s Information Commissioner review be finalised. That would allow the applicants to directly seek review in the AAT of the AHRC’s FOI decision. The applicants and the AHRC were invited to provide any comment on that view “prior to any decision being made”. I have set out the terms of this letter more fulsomely later in these reasons.
On the same date, the applicants submitted their response to the “preliminary decision”. On any view of it, it was not particularly helpful.
On 19 May, 2017 the applicants’ senior counsel emailed Mr Solomon seeking an update on any finalisation of the review. Mr Solomon responded and told him that the Office of the Information Commissioner would make a decision after the time allowed for the AHRC to make any submission in response to the “preliminary view” had passed.
On 22 May, 2017 the applicants (by their senior counsel) made a complaint to the Commonwealth Ombudsman regarding the Office of the Information Commissioner’s handling of the review.
The Office of the Information Commissioner received the AHRC’s submissions in response to the “preliminary view” on 30 May, 2017. The AHRC urged the Information Commissioner to finalise the review because, amongst other reasons, the review was likely to be close to finalisation in any event.
On 31 May, 2017 the applicants emailed Mr Solomon asking if the AHRC’s submissions had been received, if they could have a copy, and whether a decision would soon be reached. The Office of the Information Commissioner obliged by providing a copy of the AHRC’s submissions and informed the applicants that a decision would likely be made the next day.
On 5 June, 2017 Mr Solomon, as delegate of the Information Commissioner sent letters to the parties setting out his decision as delegate of the Information Commissioner. The decision was not to continue to undertake the review then before the Information Commissioner. I have set out the terms of this letter later in these reasons.
On 9 June, 2017 the applicants emailed Mr Solomon informing him that they were withdrawing the complaints that they had made to the Ombudsman. The applicants did so via email on the same date.
On 13 June, 2017 the applicants filed this application, in which they seek judicial review of the 5 June, 2017 decision of the Information Commissioner’s delegate. The applicants seek that the decision be either declared void or set aside, and that the Information Commissioner be ordered to proceed to hear and determine the review of the AHRC’s refusal to provide documents within the five disputed categories of documents I have identified earlier in these reasons.
A preliminary matter – the “Hardiman Principle” – should the submissions of the first respondent be considered by this Court?
The applicants describe the first respondent’s participation in these proceedings as “plainly and grossly inappropriate”. To make that submission, they rely upon what fell from the High Court of Australia in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13.
However they accept that non-compliance with the Hardiman principle does not, in itself, give rise to an error of law. It is for that reason, the applicants argue, that they “will be relying on that non-compliance only to the limited extent, and for the limited purposes, reflected in paragraphs 7 and 8 of the Applicants’ Submissions filed on 1 September 2017.” But paragraphs 7 and 8 of the applicants’ submissions filed on 1 September, 2017 do not identify any purpose, limited or otherwise, for which the applicants rely upon the first respondent’s asserted non-compliance with the Hardiman principle. The applicants’ position is, in this respect, confused and confusing.
Nonetheless, and because it was the subject of argument between the parties, it is I think necessary to form a view about whether any submissions made by the first respondent ought to be entertained.
The Hardiman principle has been held to require that the “usual course” when an administrative decision is subjected to judicial review “is for a tribunal to submit to such order as the court may make” and that “other than in exceptional cases, a tribunal should not take an active role in judicial review proceedings challenging its decisions:” Hardiman (1980) 144 CLR 13, 35-36; Geographical Indications Committee v The Honourable Justice O’Connor and Ors (2000) 64 ALD 325, 330-340; Ogawa v Australian Information Commissioner [2014] FCA 229 at [22]. In the latter case Greenwood J said:
22. The applicant contends that the first respondent ought to be restrained from putting on submissions on the substantive matters on the basis of the observations of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13. Normally, when a decision of an administrative decision‑making tribunal is subject to challenge on grounds of jurisdictional error under s 39B of the Judiciary Act or under one of the grounds contained in the ADJR Act, the tribunal submits to any order the Court might make. Such a tribunal does not normally become a contradictor in the proceeding to agitate in favour of the legality of its own decision‑making. The first respondent accepts that this principle extends to administrative decision‑makers generally and not just administrative tribunals, although the principle is said not to have been applied uniformly (see Community Television Sydney Ltd v Australian Broadcasting Authority (No.2) (2004) 136 FCR 338; TXU Electricity Ltd v Office of the Regulator‑General (2001) 3 VR 93).
23. The first respondent contends, correctly in my view, that a number of authorities recognise that the application of the Hardiman principle requires some adapted flexibility to the particular circumstances which present themselves to the Court for consideration.
24. For example, where there is no active contradictor to frame propositions concerning the legality of the decision‑making, the Court might well elect to entertain submissions from the decision‑maker. Sometimes, the tribunal in question is exercising a jurisdiction to review a decision of a Minister’s delegate and the tribunal in that role exercises all of the powers conferred upon the Minister under the Act. Whilst the tribunal might be joined in the proceedings, the principal respondent is the Minister under the relevant Act who acts as a contradictor. In those circumstances, the tribunal makes a submitting appearance only and takes no active role in the proceedings. A similar position prevails when the Attorney‑General elects to intervene and becomes the contradictor.
25. The first respondent correctly identifies that the proceedings before the decision‑maker in this case were not inter‑parties proceedings and the Attorney‑General has not elected to represent the public interest on the question of the legality of the first respondent’s decision‑making. Since there is no person present before the Court who can otherwise address the legality of the first respondent’s decision‑making (in addressing the public interest in determining the legality of that decision‑making) it is desirable that submissions be entertained from the first respondent in assisting the Court to determine the legality of the decision‑making under challenge (see Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; Giniotis v Human Rights and Equal Opportunity Commission [2000] FCA 1954).
Whether or not it is correct for an administrative decision-maker to make submissions and for the Court to consider them, is dependent on the statutory scheme under analysis and the circumstances of each case: Geographical Indications Committee at 337; Ogawa at [23]; Commissioner of Police, New South Wales Police Force v Fine (2014) 87 NSWLR 1 at 18-19.
The matters that might be relevant to whether the Court should refuse to consider the submissions of the decision-maker, without intending to be exhaustive, will include:
a)the “exceptional” nature of the proceedings;
b)the adjudicative nature of the prior proceedings;
c)the absence of a contradictor; and
d)the nature of the decision-maker’s submissions.
I have concluded that it is appropriate that the Court consider part of the submissions made by the first respondent for the following reasons:
a)The proceedings before this Court are of an exceptional nature. The allegations pleaded in the applicants’ statement of claim that the decision to discontinue was an abuse of power predicated on ceasing discomfiture, criticism or embarrassment on the part of the Office of the Information Commissioner, as similarly alleged in Community Television Sydney Ltd v Australian Broadcasting Authority (No.2) (2004) 136 FCR 338, are sufficient to constitute an exceptional circumstance warranting “a need to respond” on the part of the Office of the Information Commissioner: Community at p.341.
b)Though it is true that in this case the review itself involved proceedings inter partes, it is the making of the decision to discontinue which is the subject of this judicial review application. It was a decision for which neither party contended and which was arrived at by the decision-maker on his own initiative. If anything, one might have expected that if the AHRC had taken an active role in these proceedings, it might have supported the applicant’s position given its opposition to the decision to terminate the review. In the absence of participation by the first respondent, there is no active contradictor. The Attorney-General has not elected to represent the public interest and there is no other person present before the Court who could otherwise address the legality of the first respondent’s decision-making. There is no other obvious contradictor: R v Gough; Ex parte Key Meats Pty Ltd (1982) 148 CLR 582, 597-598. The decisions in Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; Giniotis v Human Rights and Equal Opportunity Commission [2000] FCA 1954 and Ogawa make it clear that in those circumstances it is desirable that submissions be entertained from the first respondent to assist the Court to determine the legality of the decision-making now under challenge.
c)The substantive issue involves an allegation of the denial of natural justice and other alleged decisional impropriety by the first respondent. The arguments between the applicants and the second respondent about the applicants’ request for access to documents are largely immaterial to the determination of this issue. The parties were not apart on the exercise of the power conferred by s.54W of the FOI Act and, having had the opportunity to consider the applicants’ statement of claim the second respondent has chosen not to participate in these proceedings. In those circumstances that the impugned decision arose from proceedings inter partes should not preclude this Court from entertaining submissions from the first respondent as to the proper construction of s.54W: cf. Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Anor (1998) 152 ALR 182, 206-207.
d)The first respondent has a legitimate interest in the nature and extent of the discretion provided under s.54W(b) of the FOI Act, that discretion being vested in the first respondent alone. That renders the first respondent the natural contradictor: Community at [11]-[12]; Macedon Ranges Shire Council v Romsey Hotel Pty Ltd and Anor (2008) 19 VR 422, 431-432.
Only those submissions of the first respondent which bear upon the proper construction of the relevant provisions of the FOI Act ought be considered. Indeed, the first respondent submits that he only intends to make submissions on the facts as they are relevant to the application of the powers and procedures contemplated by the statutory scheme established by s.54W and more generally by the FOI Act. The first respondent does not resist the applicants’ claim by addressing and attempting to refute each of the allegations in the statement of claim.
I am cognisant that the applicants seek an order that the impugned decision be set aside and the Information Commissioner be directed to hear and determine the principal review that was not continued by the decision under review. The possibility that such an order might be made might be seen as a reason for concluding that permitting a decision-maker to make submissions on an application such as the present will endanger the impartiality which is expected in the subsequent process which may take place if and when the requested relief is granted: Hardiman at 35 – 36. But by taking the first respondent’s submissions into account in the limited way and for the limited purposes articulated by the first respondent will not, in my view, endanger that impartiality.
The proper construction of s.54W of the FOI Act
Section 54W of the FOI Act provides:
54W Decision to review—discretion not to review
The Information Commissioner may decide not to undertake an Information Commissioner review, or not to continue to undertake an Information Commissioner review, if:
(a) the Information Commissioner is satisfied of any of the following:
(i) the Information Commissioner review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;
(ii) the Information Commissioner review applicant has failed to cooperate in progressing the Information Commissioner review application, or the Information Commissioner review, without reasonable excuse;
(iii) the Information Commissioner cannot contact the Information Commissioner review applicant after making reasonable attempts; or
(b) the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the Information Commissioner reviewable decision be considered by the Tribunal; or
(c) the Information Commissioner review applicant fails to comply with a direction of the Information Commissioner.
Note 1: The Information Commissioner may make a decision under this section to review only part of an Information Commissioner reviewable decision (see section 54U).
Note 2: If the Information Commissioner makes a decision under paragraph (b), an application for review may be made to the Tribunal for review of the Information Commissioner reviewable decision (see section 57A).
Note 3: Division 1 of Part VIII sets out the circumstances in which a vexatious applicant declaration may be made in relation to a person. A declaration may permit the Information Commissioner to refuse to consider an Information Commissioner review application if the person makes the Information Commissioner review application under this section without the written permission of the Information Commissioner.
Section 54W provides for a two-step approach to determining whether a review ought not to be conducted or a review ought to be brought to an end. The first step is the decision maker:
a)making a finding of fact about one of the matters specified in ss.54W(a)(i), (ii) or (iii) or 54W(c); or
b)reaching the requisite state of satisfaction about the matters prescribed by s.54W(b).
For present purposes, in the absence of the Information Commissioner being satisfied of the matters prescribed by s.54W(b), no occasion for the exercise of the power arises. But if a relevant finding is made or the Information commissioner achieves the requisite satisfaction, the second step required by s.54W is for there to be a consideration of the exercise of the power conferred by that section, including the relevant factors that will inform the exercise of that power.
Contrary to the position adopted by the first respondent in his delegate’s preliminary view and in the decision now under review, the power not to continue to undertake an IC review (as that term is used in the FOI Act) is not contained within s.54W(b). The only work done by that subsection is to prescribe one of the circumstances in which the power contained within s.54W might be available for exercise by the first respondent. This is important because, it seems to me that the Information Commissioner’s delegate has not appreciated that a determination under s.54W involves two distinct enquiries.
Much of the argument before me focussed upon the meaning to be ascribed to s.54W(b) of the FOI Act and in particular what was meant by the phrases, “the interests of the administration of [the FOI] Act” and “make it desirable that the IC reviewable decision be considered by the Tribunal”. But both parties agree that the words in s.54W(b) bear their ordinary meanings. The applicants argue that the provision is clear on its face and bears its ordinary meaning which can be divined without recourse to any extrinsic material. They argue that s.54W(b) of the FOI Act is an:
… ordinary statutory conferral of a discretionary power, which must be exercised:
(a) for a proper purpose;
(b) in a manner consistent with the expressed statutory objects;
(c) on the basis of relevant considerations;
(d) without regard to irrelevant considerations; and
(e) in accordance with established principles of natural justice.
The first respondent argues that “the meaning of s.54W(b) is plain on its face”. According to the first respondent’s argument the discretion is engaged where the Commissioner is satisfied that the interests of the administration of the FOI Act make it desirable that the Information Commissioner reviewable decision be considered by the AAT.
There is nothing ambiguous or obscure about the discretion to be exercised once it is enlivened by the Information Commissioner reaching the relevant state of satisfaction. There is nothing unclear or obscure about the nature or scope of the discretion. Once enlivened, the Information Commissioner may decide not to undertake an Information Commissioner review, or not to continue to undertake an Information Commissioner review already commenced. The discretion is unfettered in its terms.
The argument about the interpretation of s.54W(b) of the FOI Act and the assistance with that issue that might be derived by reference to certain extrinsic material is unhelpful and unnecessary. The argument is unnecessary because neither party suggested that the occasion for the exercise of the discretion had not arisen. That is to say, neither party argued that the relevant satisfaction required by s.54W(b) to enliven the discretion to not deal with the review had not been reached by the Information Commissioner or his delegate. The matters pleaded by the applicants in their statement of claim and the arguments articulated by senior counsel for the applicants go to the exercise of the discretion so enlivened, rather than to the antecedent finding or state of satisfaction necessary to enliven the discretion.
Notwithstanding the apparent unfettered nature of the discretion involved, there are limits. One is that the power conferred by s.54W must be exercised reasonably. Another is that the exercise of such a power is usually conditioned by an obligation to afford procedural fairness. I have set out the authorities for these basal propositions later in these reasons.
Moreover, both parties approached this case on the basis that the impugned decision is a decision to which the ADJR Act applies. Thus, in the context of the present matter, the limits on the power conferred by s.54W can be found, in part at least, in the grounds of review established by s.5 of the ADJR Act. Section 5 of the ADJR Act provides:
5 Applications for review of decisions
(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
Of these grounds, the applicants rely upon:
a)s.5(1)(e) read with s.5(2)(g) – unreasonableness;
b)s.5(1)(e) read with s.5(2)(b) – failure to take into account a relevant consideration;
c)s.5(1)(e) read with s.5(2)(a) – taking into account irrelevant considerations; and
d)s.5(1)(a), 5(1)(e), 5(2)(d) and 5(2)(j) – prejudgment and apprehended bias.
The decision
The decision the subject of the present application was preceded by notification from the decision maker of a “preliminary view” on 16 May, 2017. Relevantly, that notice (provided in the form of a letter) said:
…
I am writing to advise that it is now the Office of the Australian Information Commissioner (Office of the Information Commissioner)’s view that the interests of the administration of the FOI Act make it desirable that the AHRC’s FOI decision of 30 August 2016 be considered by the Administrative Appeals Tribunal (the AAT). Under s 54W(b) of the FOI Act the Office of the Information Commissioner’s Information Commissioner review can be finalised, which would allow the applicant to directly seek review in the AAT of the AHRC’s FOI decision.
I am writing to both parties to offer each an opportunity to comment on this view prior to any decision being made.
Background
On 1 August 2016, the applicant made an FOI request to the AHRC for various documents across eight categories described in the request, on behalf of Mr Powell and Mr Thwaites.
On 19 August 2016, the AHRC issued a request consultation notice under s 24AB of the FOI Act in relation to categories 2, 3, 5, 6 and 8 of the request, on the basis that ‘the time and work involved in processing the request in its current form would substantially and unreasonably divert the resources of the Commission from its other operations’.
On 29 August 2016, the AHRC provided a proposed revision to the scope of the request and the applicant advised that he was ‘content to have the request dealt with in accordance with your proposed revision’, subject to a broader scope of documents being provided.
On that date, the AHRC released documents falling within categories 1, 4 and 7 of the request.
On 30 August 2016, the AHRC refused the remainder of the applicant’s request under s 24 of the FOI Act, on the basis of a practical refusal reason under s 24AA(1)(a)(i).
On 30 August 2016, the applicant sought Information Commissioner review of the ATO’s decision.
During the course of the Information Commissioner review, the Office of the Information Commissioner made enquiries with the AHRC and a preliminary view was provided by the case officer to the applicant on 20 January 2017.
On 27 January 2017, the applicant made submissions in response to the preliminary view and stated, ‘[a]s it now seems almost inevitable that this matter is going to end up before the AAT - if not a court - it would make my clients’ position very much easier if they have to challenge a decision which is self-evidently misconceived, rather than one which is remotely arguable.’
On 4 April 2017, the applicant made an application for a hearing under s 55B of the FOI Act.
Discretion to close application under s 54W(b)
Under s 54W(b) of the FOI Act, the Information Commissioner may decide not to undertake a review, or continue to undertake a review, if satisfied that the interests of the administration of the FOI Act make it desirable that the Information Commissioner reviewable decision be considered by the AAT.
The Information Commissioner may decide under s 54W(b) of the FOI Act not to undertake a review to allow a review applicant to apply directly to the AAT for review of an FOI decision.
The Office of the Information Commissioner has considered the history of this matter and the application for a hearing, and considers it may be desirable that the AHRC’s FOI decision be considered directly by the AAT given:
· the Information Commissioner review process is intended to be non-adversarial and as informal as possible (see FOI Guidelines [10.15])
· the applicant is seeking a hearing in this matter, and
· the applicant’s indication that he may seek review in the AAT or a court
Based on the information before the Office of the Information Commissioner, the Office of the Information Commissioner is of the view that it may be in the interests of the administration of the FOI Act that this Information Commissioner review be closed and the applicant thereby be provided the opportunity of applying directly to the AAT for review of the AHRC’s FOI decision of 30 August 2016.
That would allow the applicant the opportunity for a full merit review of the AHRC’s FOI decision in a more formal setting.
Next steps
Please provide any comments on this view by 30 May 2017.
It will be immediately apparent that the “view” upon which the comment was sought was stated and then restated in different ways. The first statement at the beginning of the letter was that it was the Information Commissioner’s view “that the interests of the administration of the FOI Act make it desirable that the AHRC’s FOI decision of 30 August 2016 be considered by the Administrative Appeals Tribunal (the AAT).” That is a statement that directly engages the factual enquiry posed by s.54W(b) of the Act. The restatement of the “view” occurred at the end of the letter and suggested that the view was “that it may be in the interests of the administration of the FOI Act that this Information Commissioner review be closed and the applicant thereby be provided the opportunity of applying directly to the AAT for review of the AHRC’s FOI decision of 30 August 2016”. However, nothing in ss.54W or 54W(b) provides authority to “close” a review because the Information commissioner takes the view that it is in the interests of the administration of the FOI Act to do so or that an applicant should be provided the opportunity of applying directly to the AAT. The restatement of the preliminary view misstates the effect of both s.54W(b) and s.54W more generally.
On either statement of the “view” it is apparent that the decision maker considered that a conclusion that it was desirable that the AHRC’s FOI decision of 30 August 2016 be considered by the AAT effectively determined the exercise of the power conferred by s.54W of the FOI Act. The second reformulation of the “view” makes it clear that the consideration leading to the decision maker determining to bring the review to an end was that it may be in the interests of the administration of the FOI Act to do so, so that the applicants might thereby be provided the opportunity of applying directly to the AAT.
After responses from each of the parties, the Information Commissioner’s delegate provided his decision on 5 June, 2017. Relevantly, the terms of the first respondent’s decision sought to be impugned in these proceedings are as follows:
…I provide my decision below.
Background
During the course of this Information Commissioner review, the Office of the Information Commissioner made enquiries with the AHRC and a preliminary view was provided by the case officer to you on 20 January 2017.
On 27 January 2017, you made submissions in response to the preliminary view and stated, inter alia, ‘I have been proceeding on the assumption that my clients are unlikely to obtain satisfaction at a bureaucratic level, and must accept as a real prospect the need to seek judicial or quasi-judicial intervention to enforce their statutory rights’ and later ‘ ... it now seems almost inevitable that this matter is going to end up before the AAT - if not a court ... ‘
On 4 April 2017, the case officer advised you that this matter would shortly be subject to a decision by the Commissioner. On that date, you responded in separate emails indicating that “[my clients] will have to use their actual names, in any event, when this matter (inevitably) progresses to judicial proceedings” and subsequently made a request for a hearing under s 558 of the FOI Act.
In its correspondence of 19 April 2017 to the Office of the Information Commissioner, in response to your request for a hearing, the AHRC stated that it did not consider a hearing in this Information Commissioner review was necessary or appropriate.
Decision to close application under s 54W(b)
As a delegate of the Information Commissioner, I may decide under s 54W(b) of the FOI Act not to continue to undertake an Information Commissioner review, which allows a review applicant to apply directly to the AAT for merit review of an agency’s FOI decision.
The power in s 54W(b) of the FOI Act is available where I am satisfied that the interests of the administration of the FOI Act make it desirable that the Information Commissioner reviewable decision be considered by the AAT.
I have considered the history of this matter, including your request for a hearing and the AHRC’s response to that request. I find that the interests of the administration of the FOI Act make it desirable that the AHRC’s Information Commissioner reviewable decision be considered by the Administrative Appeals Tribunal (AAT) for the following reasons:
• the Office of the Information Commissioner review process is intended to be non-adversarial and as informal as possible subject to the requirements of law
• there is disagreement between the parties as to whether a hearing should be held in the Information Commissioner review process
• hearings are a regular feature of the process of merit review of FOI decisions in the AA T, whereas hearings are not a regular feature of the process of an Information Commissioner review and, in fact, no hearings have been held in Information Commissioner review matters to date, and
• the indication in your communications to this office in relation to this matter that your clients will seek further review in the AAT or a court.
Based on the above I am satisfied that the interests of the administration of the FOI Act make it desirable that the Information Commissioner reviewable decision be considered by the Administrative Appeals Tribunal (AAT).
Consequently, under s 54W(b) of the FOI Act, I have decided not to continue to undertake this Information Commissioner review.
You can now apply directly to the AAT, under s 57A(1)(b) of the Act, for merit review of the AHRC’s FOI decision of 30 August 2016.
You now have 28 calendar days to make an application to the AAT, in accordance with s 57A of the FOI Act.
Other matters
In relation to your complaints about the OAJC’s handling of your client’s Information Commissioner review application the Office of the Information Commissioner will provide its response to those complaints in conjunction with the Office of the Information Commissioner’s response to your complaint to the Commonwealth Ombudsman.
Some observations need to be made about this letter.
First, s.54X(2) of the FOI Act imposes an obligation upon the Information Commissioner to notify the parties to a review if the Information Commissioner decides not to undertake an Information Commissioner review, or not to continue to undertake an Information Commissioner review. Subject to some exceptions not presently relevant, the notice to be given to each party to the review must state the reasons for the Information Commissioner’s decision and if the Information Commissioner “makes a decision under paragraph 54W(b) – state that an application for review of the relevant IC reviewable decision may be made to the Tribunal under s.57A”: 54X(3)(b) of the FOI Act.
Second, the letter sets out an explicit finding that the interests of the administration of the FOI Act make it desirable that the AHRC’s decision the subject of the review before the Information Commissioner be considered by the AAT.
Third, the letter records the decision maker’s satisfaction to the same effect. Satisfaction on the part of the decision maker to that effect was necessary to enliven the power set out in s.54W. The decision maker gave some reasons for reaching that satisfaction. They are the four bullet points set out in the letter extracted above. But those matters relate to the finding and state of satisfaction to which I have just referred.
Fourth, on three occasions the decision maker suggests that the source of the power to make the decision he made was s.54W(b) of the Act. But that misapprehends the provision. As I have pointed out above, s.54W(b) does not provide that power. It supplies the factual circumstance that needs to exist before the power found in s.54W can be exercised. That misapprehension leads to the fifth observation.
Fifth, whilst the letter records the decision maker’s determination not to continue to undertake the review, no reasons for that decision are given. At best, the use of the word “Consequently” at the commencement of the sentence in which the decision is articulated and the words “under s 54W(b) of the FOI Act”, indicate that the only reason for which the impugned decision was made was because of the state of satisfaction reached about the pre-condition necessary to enliven the power. No separate consideration of the factors relevant to the exercise of the power appears to have been undertaken once the requisite state of satisfaction was reached for the purposes of s.54W(b).
Unreasonableness
It is beyond argument that “when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised”: per Brennan CJ in Kruger v Commonwealth (1997) 190 CLR 1 at p.36 citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234; and Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505. Only through the use of clear words in the legislation under consideration might that position be upset. Neither party suggested that was the case here.
Legal unreasonableness in the exercise of a discretion has received much attention in the context of the Migration Act 1968 (Cth). But the statements in those cases about the requirement to exercise a legislatively conferred discretion reasonably are of more general application. In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 the Full Court of the Federal Court said:
43. The conditioning of a power such as the one in s 363(1)(b) of the [Migration Act 1968] with a requirement of reasonableness occurs because of an implication concerning parliamentary intention in the conferral of such a power. There is, as the High Court said in Li 297 ALR 225; [2013] HCA 18, particularly at [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ, and at [88] per Gageler J, a presumption of law that Parliament intends an exercise of power to be reasonable. There is an analogy with the implication that Parliament intends an exercise of power to be conditioned by an obligation to afford procedural fairness: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J; Kruger v Commonwealth (1997) 190 CLR 1 at 36 per Brennan CJ; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [40] per Gaudron and Gummow JJ; Li 297 ALR 225; [2013] HCA 18 at [88]-[92] per Gageler J. Subject to any impinging Constitutional consideration, the presence of a clear statutory qualification or contrary intention may be capable of modifying or excluding either implication.
44. In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]):
“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221 [47].
There was no suggestion in argument that there is legislative intention present in the FOI Act so as to suggest that the power conferred by s.54W need not be exercised reasonably. So much seems to be accepted by both active parties to the present application.
Here, the decision maker’s reasons go no further than identifying the necessary pre-condition to the exercise of the s.54W power. The use of the word “Consequently” indicates that nothing other than that was considered when the discretion was considered, if the power to bring the review to an end was considered to be a discretion at all. However, s.54W requires consideration of matters that might inform the discretion conferred by it, separately to the finding about the pre-condition necessary to give rise to the occasion for the exercise of the discretion. That is not to say that the matters that inform a finding about the pre-condition will not be relevant to a consideration of the discretion, but if they were to be the only matters, it could be expected that legislation would have mandated a particular result, namely that the review be not proceeded with or terminated once the prescribed state of satisfaction has been achieved.
I am conscious that an administrative decision maker’s reasons must not be over zealously scrutinised with an eye acutely attuned to error, nor is an administrative decision maker required to set out in his or her reasons every matter or consideration raised by the matter with which they are dealing. But in the present case, the reasons of the Information Commissioner’s delegate demonstrate that the only matter of any significance considered by him was the finding that he was satisfied that the interests of the administration of the FOI Act made it desirable that the review then under consideration be considered by the AAT. There appears to have been no separate consideration of the power not to continue the review then before the Information Commissioner, nor any reasons why that course was taken.
In Singh (above), the Full Court continued:
45. In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.
The factual context in which the first respondent’s decision was made included the following matters:
a)the application for Information Commissioner review was lodged on 30 August 2016;
b)by 20 January 2017, the Information Commissioner review had progressed to the point that Ms Harlock was in a position to issue a “Preliminary View”;
c)on 4 April 2017, Harlock advised that “This matter will shortly be subject to a decision by the Information Commissioner”. The only additional information sought from the applicants at that point was for their senior counsel to “… advise whether your clients wish to be named in the published decision? If they do not want to be named, they will be assigned a two-letter pseudonym.”;
d)the first respondent’s delegate gave notice of a preliminary view on 16 May, 2017. I have set the terms of that out above.
e)the applicants responded on 16 May, 2017 and opposed the proposed discontinuance of the Information Commissioner review;
f)on 30 May 2017, the AHRC also provided submissions opposing discontinuance of the Information Commissioner review. Significantly, that response provided:
The Commission submits that it is appropriate for the Information Commissioner (Information Commissioner) to finalise its review of the AHRC’s decision in this matter. Such action will not remove any rights of the applicants to seek further review by the AAT should they decide to do so once they have received the benefit of a decision from the Information Commissioner.
Having engaged with the Office of the Information Commissioner on a number of occasions in relation to this review, and provided all information requested, the AHRC is aware that the Information Commissioner is likely to be close to making a final decision. A decision to not undertake a review would in fact be a decision not to continue to undertake a review which is close to finalisation.
As noted in the AHRC’s submission in response to the application for the Information Commissioner to conduct a hearing into this matter and as pointed out by you in your letter:
1. The Information Commissioner is under an obligation to conduct the review with as little formality and technicality as is possible, subject to requirements of law.
2. The Information Commissioner review process is intended to be non-adversarial and as informal as possible, declining to make a decision and thereby necessitating any review to be conducted by the AAT would appear contrary to such intention.
3. Nothing about the request or the AHRC’s decision is unusual or complex so as to require the expertise of the AAT.
4. In circumstances where all applicants have the right of review of an Information Commissioner decision by the AAT and many indicate that they will seek such review, the fact that these applicants have indicated they may seek review is not sufficient reason for the Information Commissioner to not finalise the review.
Having regard to the advice from Ms Harlock, it must have been the case that by 4 April, 2017 the review process was, in fact, near to completion and that a final decision by the Information Commissioner was imminent. The first respondent’s written submissions concede that was so. A preliminary view had been published and responses received in respect of that review.
However, none of these matters, or the reasons given by both parties in their responses to the preliminary view to discontinue the review feature in any depth in the reasons given by the first respondent’s delegate’s decision. In the uncontroversial factual circumstances just described, clear reasons for the decision to no longer continue the review could be expected. But there were none. All the statement of reasons suggests is that the requisite satisfaction was reached for the purposes of s.54W(b) and as a consequence – “Consequently” – the decision was made not to undertake the review.
Having regard to the decision when measured against the uncontroversial facts I have set out above and the opposition of both parties to the review to the bringing of the review to an end without a determination, the decision appears unreasonable. In those circumstances, any assumption that the decision maker addressed himself to the right question, correctly applied the law and took into account all relevant considerations and no irrelevant considerations must be false: Avon Downs Pty Ltd v Federal Commissioner for Taxation (1949) 78 CLR 353 at p.360.
In the absence of any reasons as to the exercise of the power beyond those given by the decision maker in this case, I conclude that the most likely explanation is that the decision maker did not address himself to the right question posed by s.54W. Rather than addressing the factual requirement of s.54W(b) and then addressing the exercise of the s.54W discretion separately, the decision maker has conflated the two distinct enquiries posed by s.54W(b) and s.54W. The reasons that have been given tend to show that he considered that a determination of the s.54W(b) issue also determined the discretion that he had determined for himself to exercise.
In those circumstances, the applicants’ make out their argument that:
a)the decision was legally unreasonable; and
b)the decision maker did not take into account relevant considerations.
The decision was legally unreasonable because the terms of the notification of the decision demonstrate that the decision maker must have misapprehended the task he had to perform and was distracted from the ultimate inquiry by the preliminary fact finding necessary for the purposes of s.54W(b). There are reasons for his factual determination, but no, or flawed, reasons for his ultimate decision.
The focus upon the determination of the factual inquiry required by s.54W(b) and the apparent significance of that to the ultimate decision demonstrates, in my view, that the decision maker did not take into account the matters set out above raised by each of the parties to the review. They were plainly important considerations which would inform, but not determine the exercise of the s.54W power. The peremptory way in which the parties’ responses to the “preliminary view” were passed over in the decision letter confirms the primacy of the decision maker’s satisfaction for the purposes of s.54W(b) over all other matters and tends to suggest that no consideration was given to those matters because they did not bear on the matter identified as the “view” in the letter notifying the preliminary view.
However, I do not consider that it follows that the decision maker has taken into account an irrelevant consideration, namely the fact that he had reached the requisite satisfaction required by s.54W(b) of the Act. That state of satisfaction, whilst the pre-condition to the exercise of the s.54W power, is also a matter relevant to the exercise of that power. But it is not the only matter as the decision maker has approached the matter.
Other matters
The applicants argue that the expression of a preliminary view by the decision maker bespeaks prejudgment on his part and constitutes a denial of natural justice and a failure to afford procedural fairness to the applicants.
However, I reject that argument. The making available to parties of a preliminary view and seeking their response to it is, generally speaking, an unobjectionable course provided that the view is a genuine preliminary view in the sense that the decision maker remains open to considering the merits of any responses to it: Richmond River Broadcasting v Australian Broadcasting Tribunal (1992) 106 ALR 671. That decision was applied in Minister for Immigration and Citizenship v MZXPA and Another [2008] FCA 185 where Sundberg J said:
15. … At common law (that is independently of the special features of the Act that bear on the ambit of apprehended bias), the courts have accepted that judges, tribunals and administrators may properly, and indeed sometimes should, express a preliminary view so as to alert a party to concerns they may have and thus afford the party an opportunity to rebut that view. Thus in Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 319 a Full Court (Lockhart, Pincus and Gummow JJ) said:
expression by a court or tribunal of its current view of an issue may be advantageous on occasions, rather than otherwise. The rules as to apparent bias must be balanced against the desirability of a thoroughly fair contest and the latter may positively favour a disclosure, without any equivocation, of an opinion held by the court or tribunal at a particular stage of the proceedings. In the absence of such disclosure, there may be a justified resentment on the losing side, based on their not having been made aware of the direction of the thinking of the court or tribunal on a particular issue and not having been given a fair opportunity to turn it into another path.
16. In Richmond River Broadcasting v Australian Broadcasting Tribunal (1992) 106 ALR 671 at 681 Wilcox J, after referring to the Kaycliff passage quoted at [15], said:
It is an everyday event for judges to indicate to counsel, during the course of a hearing, their impressions of a case, including their impressions of witnesses and of the facts. They do so to assist counsel. It is always an advantage for counsel to know the way in which the judge’s mind is working; submissions may be targeted to the aspect of the case which is troubling the judge. Where a judge takes this course nobody would suggest that the judge ought to be disqualified from concluding the case. The reason is that the judge is merely expressing a tentative view and inviting a response which he or she may take into account in determining whether to adhere to, or abandon, that view in the final decision. The readiness to listen and be persuaded is the critical matter.
17. The critical matter to which his Honour referred in the final sentence is reflected in the observations of Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1991) 170 CLR 70 at 100:
When suspected prejudgment of an issue is relied upon to ground disqualification of a decision maker, what must be firmly established is a reasonable fear that the decision maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion, irrespective of the evidence or arguments presented.
See also Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571, Glynn v Independent Commission Against Corruption (1990) 20 ALD 214 at 219 and Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 532, 564. As Dr Forbes puts it, there will be no apprehension of bias if a tribunal tries to assist the parties, or to enlighten itself, by indicating that it has a provisional view, subject to further evidence or argument: Justice in Tribunals 2nd ed (2006) at 301-302.
There is nothing in the evidence before me that suggests that the decision maker’s mind in this case was so prejudiced in favour of a conclusion already formed that he would not alter that conclusion, irrespective of the evidence or arguments presented by the parties.
Conclusion
For the above reasons, the applicants’ claim must succeed. The applicants seek orders comprising:
a)a declaration that the impugned decision is void, invalid, and of no effect;
b)alternatively, an order setting aside or quashing the impugned decision;
c)an order that the Information Commissioner proceed to hear and determine the review to which the applicants and the second respondent are parties, according to law.
Section 16 of the ADJR Act provides:
16 Powers of the Federal Court and the Federal Circuit Court in respect of applications for order of review
(1) On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:
(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;
(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
It is appropriate to make the second order sought by the applicants. Such an order is expressly authorised by s.16(1)(a) of the ADJR Act. In those circumstances, the first order sought is unnecessary.
No argument was addressed to the third order sought. I do not intend to make an order in those terms because it relates to the review itself, rather than the decision which is now under review. I intend to make an order remitting the matter to which the decision I have set aside relates (ie. the decision to no longer continue the principal review) to the person who made the decision for further consideration according to law. It is not appropriate to simply order that the principal review be determined, as sensible as that may seem. That is because the decision under s.54W is one for the Information Commissioner to make rather than this Court. Having said that, it would indeed be unfortunate if the parties to the principal review were put to further trouble and expense if that review was not concluded by a determination in respect of it.
Costs should follow the event. Costs in this Court are generally assessed according to Part 1 of Schedule 1 of the Federal Circuit Court Rules 2001. No submissions have been made about the fixing of costs pursuant to that schedule. I will make directions for that to happen.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 9 January 2019
25
27
3