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 |
| 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…
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Details
- Case
- [2019] FCCA 39
- Decision Date
CaseChat Overview and Summary
This matter concerned an application for judicial review of a decision by the Australian Information Commissioner (the Commissioner) not to continue an Information Commissioner review of a decision made by the Australian Human Rights Commission (AHRC) under the *Freedom of Information Act 1982* (Cth) (the FOI Act). The applicant had sought documents from the AHRC, which had refused part of the request. The applicant then sought review by the Commissioner. The Commissioner's delegate formed a preliminary view that it would be desirable in the interests of the administration of the FOI Act for the matter to be considered directly by the Administrative Appeals Tribunal (AAT), thereby allowing the applicant to bypass the Commissioner's review process and proceed directly to the AAT.
The primary legal issue before the court was whether the Commissioner's delegate had erred in law in deciding not to continue the Information Commissioner review. Specifically, the court was required to determine whether the delegate had correctly understood and applied the provisions of section 54W of the FOI Act, which outlines the circumstances in which the Commissioner may decide not to undertake or continue a review. The applicant contended that the delegate had failed to take into account relevant considerations and had misinterpreted the statutory framework.
Justice Jarrett held that the Commissioner's delegate had erred in law by failing to appreciate that a determination under section 54W of the FOI Act involves two distinct enquiries. The first step requires the Commissioner to make a finding of fact or reach the requisite state of satisfaction regarding the matters prescribed in section 54W(a) or (c), or section 54W(b). The second step involves a consideration of the exercise of the power conferred by section 54W, taking into account relevant factors. The court found that the delegate had incorrectly conflated these two steps and had wrongly asserted that the power not to continue a review was contained within section 54W(b), when that subsection merely prescribed one of the circumstances in which the power under section 54W might be exercised.
The court concluded that the Commissioner's decision not to continue the review was vitiated by an error of law. Consequently, the court set aside the decision of the Commissioner and remitted the matter to the Commissioner for reconsideration according to law.
The primary legal issue before the court was whether the Commissioner's delegate had erred in law in deciding not to continue the Information Commissioner review. Specifically, the court was required to determine whether the delegate had correctly understood and applied the provisions of section 54W of the FOI Act, which outlines the circumstances in which the Commissioner may decide not to undertake or continue a review. The applicant contended that the delegate had failed to take into account relevant considerations and had misinterpreted the statutory framework.
Justice Jarrett held that the Commissioner's delegate had erred in law by failing to appreciate that a determination under section 54W of the FOI Act involves two distinct enquiries. The first step requires the Commissioner to make a finding of fact or reach the requisite state of satisfaction regarding the matters prescribed in section 54W(a) or (c), or section 54W(b). The second step involves a consideration of the exercise of the power conferred by section 54W, taking into account relevant factors. The court found that the delegate had incorrectly conflated these two steps and had wrongly asserted that the power not to continue a review was contained within section 54W(b), when that subsection merely prescribed one of the circumstances in which the power under section 54W might be exercised.
The court concluded that the Commissioner's decision not to continue the review was vitiated by an error of law. Consequently, the court set aside the decision of the Commissioner and remitted the matter to the Commissioner for reconsideration according to law.
Orders
Orders of the court
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Background
Background to the litigation
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.BackgroundOn 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 courtBased 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 stepsPlease provide any comments on this view by 30 May 2017.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 54W of the FOI Act provides:54W Decision to review—discretion not to reviewThe 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); orb)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.
Ratio Decidendi
Legal Principle Established
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