Re Cuthbertson;
[2016] AATA 930
•22 November 2016
Cuthbertson; Secretary, Department of Immigration and Border Protection and [2016] AATA 930 (22 November 2016)
Division: FREEDOM OF INFORMATION DIVISION
File Numbers: 2016/4873, 4874 and 4956
Re:SECRETARY, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION
APPLICANT
And:ALEX CUTHBERTSON
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 22 November 2016
Place Melbourne
The Tribunal decides to:
extend the time within which the applicant may apply to the Tribunal for review of the Australian Information Commissioner’s decision dated 18 March 2016 to 14 September 2016.
………[sgd]…………….
Deputy President
CATCHWORDS – PRACTICE AND PROCEDURE – application for extension of time to apply for review – applicant mistakenly closed file after decision of acting Australian Information Commissioner (AIC) – application for review not lodged within time period – respondent requested documents from applicant five months after AIC decision – principles relevant to extension of time to apply are no different from application by non-agency party – substantial delay in seeking to review decision – no evidence of intentional delay on part of applicant – no prejudice for respondent if extension of time were to be granted – review raises significant issues of public interest – extension granted
LEGISLATION
Administrative Appeals Tribunal Act 1975; ss 25(1), 25(6), 29, 29(1), 29(1)(d), 29(2), 29(7)
Freedom of Information Act 1982; ss 3(1), 3(4), 4(1), 11A, 11A(5), 11B, 23, 33, 34, 37, 38, 42, 47F(1), 57A, 57A(1), 57A(2), 55K
Judiciary Act 1903; ss 77E, 77G
Privacy Act 1988; s 6(1)CASES
Alex Cuthbertson and Department of Immigration and Border Protection [2016] AICmR 20
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441; 119 ALR 85; 18 AAR 366
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479; 64 ALJR 458
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Re Australian Broadcasting Tribunal v Bond Corporation Holdings Limited; Dallhold Investments Pty Limited and Alan Bond [1989] FCA 44
Re Australian Telecommunications Commission and Schmidt (1986) 4 AAR 388
Re Coshott and Commissioner of Taxation [2013] AATA 822; (2013) 140 ALD 436; 96 ATR 967
Re Department of Employment, Education and Training and Secretary, Department of Social Security Secretary, Department of Social Security and Brian Hughes [1994] AATA 19
Re The Trustee for the Confidential Trust and Commissioner of Taxation [2013] AATA 682; (2013) 138 ALD 409; 61 AAR 215; 92 ATR 730SECONDARY MATERIAL
Legal Services Direction 2005
REASONS FOR DECISION
The Secretary of the Department of Immigration and Border Protection (Department) has applied for an extension of the time within which to apply for review of a decision of the then acting Australian Information Commissioner (AIC) dated 18 March 2016. He has done so after discovering that the AIC’s decision had been overlooked in his Department. In essence, he seeks to have the time extended so that he can put the case that the documents sought are exempt under the Freedom of Information Act 1982 (FOI Act) as disclosing information that would, or could reasonably be expected to damage the international relations of the Commonwealth within the meaning of s 33(a)(iii) or under the personal privacy exemption in s 47F. Ms Cuthbertson questions the cogency of the evidence put in support of the Secretary’s application, underlines the five month delay in making the application and emphasises the diminution of her rights. For the reasons I give below, I have decided that it is appropriate to extend the time within which the Secretary may apply for review until 14 September 2016.
BACKGROUND
On 7 July 2015, DIBP received a request made by Ms Cuthbertson under the FOI Act. She sought access to the following documents:
“… any document which records the number of persons who, having been determined as having refugee status, have been settled in Nauru pursuant to the offshore processing arrangements between Australia and Nauru and whose religion is identified as Christian or Orthodox Christian.”
If the information she sought was not available in written documents, Ms Cuthbertson asked that the Department produce a document containing the information in discrete form. She also stated that she requested access only to de-identified information and did not request personal information relating to any individual.
On 8 September 2015, an authorised officer under s 23 of the FOI Act identified one document coming within the terms of Ms Cuthbertson’s request. She decided to release, in part, the documents within the scope of Ms Cuthbertson’s request. In relation to those parts of the documents to which access was not granted, the authorised officer decided that they were exempt from disclosure having regard to the provisions of ss 4(1), 11A, 11B 47F(1) of the FOI Act. Section 47F provides that, if disclosure of a document would involve the unreasonable disclosure of personal information, it is conditionally exempt. The expression “personal information” is defined in s 4(1) to have the same meaning as it does in the Privacy Act 1988. Section 6(1) of that Act defines the expression “personal information” to mean:
“… information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.”
Even though the decision-maker found that those parts of the document were conditionally exempt from disclosure under s 47F, the Department could only refuse access to them if, on balance, access would be contrary to the public interest.[1] Section 11B sets out factors that are to be regarded as favouring access and those that are to be regarded as irrelevant factors in deciding whether access would be contrary to the public interest.
[1] FOI Act; s 11A(5)
The Department gave access to a document containing 17 pages. Each page was headed “Refugees in Nauru” and then divided into three columns headed “Nationality”, “Language” and “Stated Religion”. All of the information on the 34 lines following those headings on pages 1 to 16 and on 19 lines on page 17 was deleted. A date of “5/08/2015 2:13PM” appeared at the bottom of each page as did the words “Released by DIBP under the Freedom of Information Act 1982”.
Ms Cuthbertson applied to the AIC for review of the decision. On 18 March 2016, the then acting AIC set aside the Department’s decision and substituted his decision that the document is not exempt.[2] The heart of his reasons lies in the following paragraph:
“I do not accept that individuals are reasonably identifiable from information in relation to the number of persons of Christian/orthodox Christian religion that had been determined as having refugee status and resettled in Nauru because refugee advocacy groups may already hold such information. Even if a member of the public who is involved with a refugee advocacy group that holds such personal information in relation to religion of the individuals in question could piece together such information such that it is technically possible to identify an individual from the information in question, in my view, as outlined in the APP Guidelines, doing so is so impractical that there is almost no likelihood of it occurring. …”[3]
[2] [2016] AICmR 20
[3] [2016] AICmR 20 at [16] (citation omitted)
Part VIIA of the FOI Act provides that a person may lodge an application in the Tribunal for review of, among others, a decision made by the AIC under s 55K following an IC review.[4] An IC review is a review of the sort conducted by the acting AIC on this occasion.[5] The period of time within which such an application may be made is set out in s 57A(2) which provides:
“Despite subsection 29(2) of the Administrative Appeals Tribunal Act 1975, for the purposes of paragraph 29(1)(d) of that Act, the prescribed time for a person to lodge an application for review of an IC reviewable decision mentioned in paragraph (1)(b) of this section is the period:
(a)starting on the day on which the decision by the Information Commissioner under paragraph 54W(b) of this Act is made;
(b)ending on the 28th day after the day on which notice of the decision under paragraph 54W(b) was given to the person under section 54X of this Act.”
The Department did not lodge an application for review in the Tribunal within this period which would have ended on or about 15 April 2016.
[4] FOI Act; ss 57A and 55K
[5] FOI Act; s 57A(1) when read with s 55K
On 18 August 2016, Ms Cuthbertson wrote to the Department referring to the AIC’s decision and asking that it immediately provide her with access to an unredacted version of the document identified by the Department in its decision.[6]
[6] Affidavit of Ms Cuthbertson sworn on 15 November 2016 at Exhibit AJC-4
THE POWER TO EXTEND TIME
Legislative source of power
Applications for review are not made under the Administrative Appeals Tribunal Act 1975 (AAT Act) but under another enactment providing that applications may be made for review of decisions made in the exercise of powers conferred under that or another enactment.[7] Section 29 of the AAT Act sets out the way in which an application for review may be made. It prescribes, for example, that, in cases other than those heard in the Social Security and Child Support Division, the application must be in writing, must be accompanied by the prescribed fee, if any, and must be lodged within the prescribed time.[8] In the case of a decision set out in writing and given to a person, s 29(2) provides that the prescribed time is generally 28 days from the date on which the written decision was given. Section 29(7) provides for an extension of that time:
“The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”
[7] AAT Act; s 25(1)
[8] AAT Act; s 29(1) and particularly s 29(1)(d)
The AAT Act recognises that the framework that it provides may not be suited to the review of all types of decisions. Therefore, s 25(6) provides that:
“If an enactment provides for applications to the Tribunal:
(a)that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 29AB, 29AC, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and
(b)those sections and subsections have effect subject to any provisions so included.”[9]
[9] I concluded in Re The Trustee for the Confidential Trust and Commissioner of Taxation [2013] AATA 682; (2013) 138 ALD 409; 61 AAR 215; 92 ATR 730 at [21]-[28]; 415-418; 221-224; 737-739 that the nomination of particular provisions in s 25(6) of the AAT Act does not prevent Parliament from making adding to, excluding or modifying the operation of other provisions of the AAT Act. See also the same conclusion reached by Deputy President Tamberlin in Re Coshott and Commissioner of Taxation [2013] AATA 822; (2013) 140 ALD 436; 96 ATR 967 at [18]; 439; 971.
The FOI Act is an enactment that provides for applications to the Tribunal. Section 57A(2) provides that, despite s 29(2) of the AAT Act and for the purposes of s 29(1)(d), the prescribed time for a person to lodge an application for review of an IC reviewable decision ends 28 days after the day on which notice of that decision was given to the person.[10] The qualification that s 57A(2) makes to s 29(2) is quite specific and cannot be read as suggesting that any other provision of s 29 of the AAT Act is modified or qualified. Therefore, the provisions of s 29(7) of the AAT Act continue to apply in relation to applications made for review of decisions of the IC under the FOI Act.[11]
[10] FOI Act; s 57A(2)
[11] Contrast a provision such as s 347 of the Migration Act 1958. The Migration Act does not acknowledge s 25(6) of the AAT Act, but deals in s 347 with substantively the same issues as are addressed in s 29 of the AAT Act but in a different way. It is clearly intended to replace s 29 rather than to modify it. Therefore, it is not possible to take the view that those issues dealt with in s 29 but not in s 347 are intended to remain in force. Section 29(7) is such a provision and the consequence is that the time limit prescribed in s 347 cannot be extended.
Principles guiding the exercise of the power
Section 29(7) does not give any indication of the criteria that might be relevant in deciding whether it is “reasonable in all the circumstances” to extend time. In considering the manner in which the discretion to grant an extension should be exercised, regard is frequently paid to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[12] (Hunter Valley), which was decided in the context of an application under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). Section 11(1)(c) permits an application to be lodged “… within such further time as the court concerned … allows.” After noting that s 11 does not set out any criteria to be followed in exercising the Court’s discretion and that there had been a number of decisions of judges of the Federal Court all sitting at first instance, he distilled six factors that are relevant in deciding to exercise the discretion. The first factor[13] was modified by the Full Court of the Federal Court in Comcare v A’Hearn[14] in the context of an application to extend time lodged under the AAT Act. Allowing for that modification, the factors were summarised by Federal Magistrate McInnis, as he then was, in Phillips v Australian Girls’ Choir Pty Ltd & Anor[15] when he said:
[12] [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
[13] It read in part that “It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time …”: (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315 at 348; 310-311; 320
[14] [1993] FCA 498; (1993) 45 FCR 441; 119 ALR 85; 18 AAR 366
[15] [2001] FMCA 109
“ In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The ‘prescribed period’ of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).
3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287).
4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”[16]
[16] [2001] FMCA 109 at [10] In Budd v Secretary, Department of Education, Employment and Workplace Relations, Cowdroy J approved and applied these factors in the context of s 44(2A)(a) of the AAT Act: [2008] FCA 1540 at [19]. Section 44(2A) provides that an appeal instituted under ss 44(1) or (2) shall be instituted within the time set out in s 44(2A)(a) and in such manner as is prescribed by the Rules of Court made under the Federal Court of Australia Act 1976: AAT Act; s 44(2A)(b).
Principles of this sort are relevant when considering whether to extend the time within which an application may be made to the Tribunal but, in Hunter Valley, Wilcox made it clear that he did not intend to set out an exhaustive statement of the principles to be considered. A few years earlier, the Full Court of the Federal Court had underlined the need to bear a similar sentiment in mind when considering the extension of time provisions in section 92FAB(9) of the Broadcasting Act 1942.[17] Those provisions were concerned with asset divestment requirements and related to the transfer of the licence of a radio station. If the assets were not divested within time, the applicant committed an offence. The Australian Broadcasting Tribunal had refused to grant the application for an extension of the time within those requirements had to be met. Justice Burchett, with whom Sheppard and Beaumont JJ agreed, referred to a guideline referring to the exercise of the discretion. He said:
“ But the greater vice in the guideline and the reasons is the proposition that the discretion is conditioned upon the showing of a necessity for an extension. The discretion is conferred by the Act in the widest terms. It can only be read down by reference to the subject matter, scope and purpose of the statute (see Minister for Aboriginal Affairs v. Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 40). Having regard to considerations already discussed in these reasons, an examination of s. 92FABsuggests that the discretion to extend the period was conferred upon the Tribunal because it was impossible for Parliament to legislate precisely in respect of all the various situations that would arise. The task of balancing the public and private interests involved in each individual case was therefore left to the Tribunal. It would be quite inconsistent with this statutory scheme to permit the Tribunal to attempt itself the task which Parliament eschewed of laying down a rigid rule governing all cases. Section 92FABcannot be read as excluding what is reasonable in the circumstances actually arising in a particular case, in favour of an insistence upon a criterion of necessity. Nor, where the result of the decision will be the crystallisation of a serious criminal offence (quite apart from the effect upon rights to property), can the Tribunal properly fail to have regard to the fairness, in all the circumstances, of that crystallisation occurring at a particular time. Its duty in this respect is emphasized by s.89W.”[18]
[17] Re Australian Broadcasting Tribunal v Bond Corporation Holdings Limited; Dallhold Investments Pty Limited and Alan Bond [1989] FCA 44; Sheppard, Beaumont and Burchett JJ
[18] [1989] FCA 44 at [25]
In light of these principles, it can be seen that considerations of the sort set out in Hunter Valley and Phillips v Australian Girls’ Choir Pty Ltd & Anor may well be relevant but a view as to whether or not they are relevant depends on a consideration of them in light of the matter, scope and purpose of the enactment conferring power on a decision-maker to extend a time limit. Whether they are the only criteria that are relevant depends upon the same consideration but also upon a further principle that underpins all of the principles. That principle is that the extension of time provisions are intended, as in a court:
“… to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties …”.[19]
[19] Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479; 64 ALJR 458 at 480; 459 per McHugh J
In the case of the FOI Act, s 3(1) expresses that its object is to:
“… give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)requiring agencies to publish the information; and
(b)providing for a right of access to documents.”
The remaining provisions of s 3 go on to explain what Parliament intends to be the outcome of pursuing these objects and that it:
“… also intends that functions and powers given by this Act are to be performed and exercised as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.”[20]
[20] FOI Act; s 3(4)
When read on its own, s 3 might be thought to give members of the public unrestricted access to information held by Government. In its earlier form, the opening words of s 3(1) were that “The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth …” (emphasis added). Despite their omission in more recent years, the public’s right to access to information held by Government is indeed limited to what is “possible”. In broad terms, what is “possible” is identified by reference to what is and is not “exempt matter” or what is not an unreasonable impost on the resources of the Commonwealth. “Exempt matter” is “… matter the inclusion of which in a document causes the document to be an exempt document.”[21] An “exempt document” means:
“(a) a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B); or
(b)a document in respect of which by virtue of section 7, an agency, person or body is exempt from the operation of this Act; or
(c)an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.”[22]
[21] FOI Act; s 4(1)
[22] FOI Act; s 4(1)
Focusing on the exemptions provided for by Part IV, it is seen that it provides for exempt documents in Division 2 and conditionally exempt documents in Division 3. If a document meets a description of a document in Division 3, it will only be an exempt document if access to it at the time would, on balance, be contrary to the public interest.[23] Factors favouring access and those that are irrelevant in working out where the balance of public interest lies are set out in s 11B.
[23] FOI Act; s 11A(5)
If a document meets a description of a document in Division 2, it is exempt without further ado. Parliament has decided where the public interest lies and it lies against disclosure of documents coming within the description of documents specified in Division 2. Some of those documents have traditionally been exempt from production in court proceedings on a claim by the Crown of public interest immunity. Documents coming within that Division include, for example, Cabinet documents,[24] documents whose disclosure under the FOI Act would, or could reasonably be expected to, affect the enforcement of law and protection of public safety[25] and documents that would be privileged on the ground of legal professional privilege.[26] Others are concerned with other enactments in which Parliament has already restricted access to information by the use of secrecy provisions.[27]
[24] FOI Act; s 34
[25] FOI Act; s 37
[26] FOI Act; s 42
[27] FOI Act; s 38
Of relevance in this case is s 33, which provides that:
“A document is an exempt document if disclosure of the document under this Act:
(a)would, or could reasonably be expected to, cause damage to:
(i)the security of the Commonwealth;
(ii)the defence of the Commonwealth; or
(iii)the international relations of the Commonwealth; or
(b)would divulge any information or matter communicated in confidence by or on behalf of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
Note:See also subsection 4(10).”
CONSIDERATION
I agree with Ms Arduca, who represented the Secretary, that the principles relevant to considering the Department’s application for an extension of time are no different from those applying to an application by a non-agency party.[28] A delay of some five months, she acknowledged, is substantial and I also agree with her submission in that regard. The explanation for the delay is set out in the affidavit of Ms Karen Tulloch, who is the Assistant Director of the Freedom of Information Section, Information Management of the Department. In that role, she is responsible for the management of FOI requests, internal reviews and the coordination of external reviews received by the Department.
[28] I reached the same conclusion in Re Department of Employment, Education and Training and Secretary, Department of Social Security Secretary, Department of Social Security and Brian Hughes [1994] AATA 19 at [31] citing Re Australian Telecommunications Commission and Schmidt (1986) 4 AAR 388, Deputy President Jennings.
Ms Tulloch explained that an email had been received by the Department from the Office of the AIC in its generic inbox for the receipt of Freedom of Information (FOI) related matters. Ms Tulloch continued:
“I am not able to precisely say what occurred, but I believe that the email was accessed by a junior officer of the Department, working within the FOI and Reviews Section of the Branch. Instead of referring the decision to a Review and/or Privacy senior officer in the Branch, the officer mistakenly took the Commissioner’s decision to mean that the request could be closed. An unidentified officer proceeded to close the file inadvertently on the Department’s database system.
The closure of the case was an oversight and the decision should have been referred onto a senior officer for appropriate action.
The decision of the Commissioner was to set aside the Departments [sic] decision and required that access to the documents should be granted and copies of the documents to be provided to the respondent.
As the file was mistakenly marked as closed, it did not come to the attention of the FOI section, as requiring action.”[29]
[29] Affidavit sworn 15 November 2016 at [5]-[8]
While it is true, as Ms Bennett of counsel submits on behalf of Ms Cuthbertson, that Ms Tulloch has speculated about how the file came to be put away, her affidavit does support my finding that the file was put away without the AIC’s decision being brought to the attention of the appropriate officers. Putting aside any suggestion of improper motive, and I will come to that, there is nothing to be gained by conducting an enquiry as to why an officer, junior or otherwise, took that course of action. As in any organisation, large or small, mistakes do happen. What is more important is whether there were improper motives in making the decision to close the file. Improper motives in a case such as this would include those intended to defeat or delay the entitlement of Ms Cuthbertson to access to the documents in accordance with the AIC’s decision.
Ms Tulloch addressed matters having some relevance to this issue in her affidavit when she said:
“On 18 July 2016, the Assistant Secretary, Information Management Branch informed senior staff during a meeting, the Branch would undergo an internal restructure of the FOI Reviews function within the Branch. This restructure was discussed later that day during a further meeting with the FOI Director.
On 5 August 2016, I attended a meeting with the current Reviews and Privacy Assistant Director, who was responsible until that date for the current management of all FOI reviews. The meeting was a discussion regarding the formal handing over to the FOI Section, of any ongoing or outstanding FOI or IC Reviews for future management.
As part of that discussion, we reviewed the Weekly Report to discuss all current cases and any appropriate actions. The Weekly Report did not cover the three FOI Requests made by the respondent, nor was there any discussion of these cases in general.
On 18 August 2016, I received the email from the respondent requesting access to copies of the documents.
I then accessed the relevant file and realised that it had been incorrectly marked as closed and that the decision of the Commissioner had not been actioned. When I read the decision and discussed further with a colleague, I realised that the decision to give access to the documents concerned documents that contained information about from the Nauruan Government.
I discussed this matter with my colleagues in the Pacific and Transnational Issues Branch, the Regional Processing Programmes Support section and the Nauru Desk, International Division. From those discussions, I am aware that there is a high degree of sensitivity with the disclosure of any information obtained from, or concerning, the processing of protection claims by the Government of Nauru.
I believe the documents in issue in these proceedings contain information relevant to the processing of protection claims by the Government of Nauru.”[30]
[30] Affidavit sworn 15 November 2016 at [9]-[15]
Ms Bennett referred to evidence given by Ms Cuthbertson in her first affidavit that she was concerned that the Department is seeking to delay giving access to information relating to asylum seekers and refugees located on Nauru. She relied on an article published in The Guardian on 2 November 2016 recording that the:
“… department has been ‘freezing’ the release of documents about asylum seekers at in its offshore detention centre on Nauru, according to a [sic] internal email, suggesting it has been deliberately breaching freedom of information laws.”
The email to which The Guardian referred was an email sent by Mr Ian Campbell, the Department’s FOI Officer, to two other officers. As published in the article, the email read:
“We note that our Nauru-related FOI cases (ie summary incident reports, health data set and several others) continue to be on hold pending confirmation from you about when we can proceed to finalise them.
Are you able to please give us an update/indication of when you consider we will be able to proceed?
There are some risks associated with not proceeding these FOI requests.
Rather than freezing the processing of these cases for several more weeks or months, we might be better off releasing the documents sooner, with the Nauru information fully exempted under grounds of international relations. This is something we’d want to discuss with Susan [Mathew] given the concerns previously expressed about such an approach.”[31]
[31] Affidavit of Ms Cuthbertson sworn on 15 November 2016 at [10]-[11] and Exhibit AJC-7
Ms Cuthbertson draws from this email and the article in The Guardian that she is concerned that the Department is seeking to delay giving access to information relating to asylum seekers and refugees located on Nauru including information sought in her requests. I do not draw the same conclusion. The crucial part of The Guardian article is the recitation of the email. It is written by an FOI Officer, Mr Campbell, and not by an officer with line responsibility in a policy or operational area in the Department. The email shows that Mr Campbell was concerned to process the FOI requests. If there was delay, it was in the area of line responsibility in the Department and not in the FOI section. The email does not lead me to the conclusion that the Department’s FOI Section was the instigator of that delay. It does not lead me to take the view that the premature closure of the file was anything other than an unfortunate error.
Even when that unfortunate error was discovered, Ms Bennett correctly observes that there was another month or so between the Department’s discovering its error and its lodging an application for an extension of time. Ms Arduca referred to the Legal Services Direction 2005 as amended and to the time that its processes take. While I accept that there are processes to be followed, a month does seem a somewhat lengthy period when taken alone but not so long in the overall context.
Ms Bennett submitted that her client, Ms Cuthbertson, is prejudiced by the delay. Certainly, Ms Cuthbertson is entitled to have her request resolved as quickly as possible having regard to the review processes. She played no part in the unfortunate closure of the file but she did not seem unduly anxious to receive the documents after the AIC had given his decision. His decision was given on 18 March 2016 and Ms Cuthbertson could have expected to receive those documents at least by the conclusion of the 28 day period in which the Department could have applied to the Tribunal for review i.e. by mid April 2016. She did not ask for the documents at that time but waited until 18 August 2016 to enquire about their whereabouts. That does not excuse the Department for its oversight but any prejudice to Ms Cuthbertson is not as acutely apparent as it might have been had she enquired earlier.
Ms Bennett said that the information was required if one of Ms Cuthbertson’s clients were to receive notice that the Department proposed to take certain action. Her client would be given 72 hours’ notice of that action but if and when it would be taken was not known. If it were taken, Ms Cuthbertson’s client would take action in the High Court. Ms Bennett acknowledged that ss 77E and 77G of the Judiciary Act 1903 (Judiciary Act) give the High Court power to require persons to produce books and to give evidence in any suit or cause pending before it but looks to the material sought under her FOI request. Ms Cuthbertson has been given no indication that the Department is about to take action affecting her client. I do not have sufficient evidence to come to any conclusion on this aspect other than to note that any applicant is entitled to have the resolution of his or her application resolved as quickly as the resources of the Tribunal reasonably permit.
The merits of the Department’s application, if it is permitted to make it, are difficult to assess when I do not yet have access to the versions of the original documents without redactions. Where the information in those documents comes from is also unknown. As Ms Arduca has stated that the Department is wishing to claim that s 33(a)(iii) applies, it is to be presumed that at least some of the information relates to the Nauruan Government. Whether such a claim or that under s 47F relating to personal privacy have reasonable prospects of success is not a question that I can begin to answer without the relevant documents.
Even though I cannot come to a view about the reasonable prospects of success of any application for review, I am satisfied that the Department’s application for an extension of time should be granted. The Department should be given an opportunity to raise sensitive issues raised by s 33 even though it is significantly out of time. The explanation of the delay is understandable and the issues raised by a review of a decision made under the FOI Act are very much concerned with public interest. The exemptions are shaped by the public interest and the role of the Tribunal on review is to reach the correct or preferable decision at the time it is made.[32] In another case, that delay might be fatal but there are several factors that weigh against its being so in this. Although I understand that her client lives each day with the possibility that the Department may take action in relation to her, it has not done so. In so far as the resources of the Tribunal enable expedition, the matter can be expedited. The High Court’s processes would be also be available to Ms Cuthbertson and her client if the Department were to act. The integrity of the FOI Act requires that access to information held by the Commonwealth Government be determined on the evidence and according to law and not as a consequence of a most unfortunate and hopefully isolated oversight by the Department. Against this background and given that there is an explanation for the delay and the prejudice to Ms Cuthbertson can be mitigated, the justice of the case lies with my granting the application for an extension of time.
[32] See Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 636 per Brennan J, President.
For these reasons, I grant the Department’s application for an extension of the time within which to lodge an application for review of the AIC’s decision dated 18 March 2016.
I certify that the preceding thirty-one paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.
Signed: ……………............[sgd]...................................
Associate
Date of Extension of Time Hearing 16 November 2016
Date of Decision 22 November 2016
Solicitor for the applicant Ms E. Arduca
Australian Government Solicitor
Counsel for the respondent Ms E. Bennett
Solicitor for the respondent Ms A. Cuthbertson
Allens Lawyers
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