Powell v Australian Information Commissioner

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.