Re Smith and Aboriginal and Torres Strait Islander Commission - [2000] AATA 512

CATCHWORDS – FREEDOM OF INFORMATION – ATSIC documents claimed to be exempt under sections 36, 41, 42 and 45 of The Freedom of Information Act 1982 – decision varied.

Aboriginal and Torres Strait Islander Commission Act 1989 – Ss 2, 3, 7, 14, 27, 30, 31, 33, 40, 41, 45, 56, 61, 75, 76, 78, 78A, 90, 91, 92, 94, 99, 102, 104, 113, 117, 119, 119A, 122, 122A, 128, 128A, 128B, 128C, 130,
Aboriginal and Torres Strait Islander Commission (No. 3) Act 1993 – s33
Aboriginal and Torres Strait Islander Commission Act 1996
Aboriginal and Torres Strait Islander Commission Amendment Act 1996 – S 28A
Crown Lands Act 1884
Crown Lands Act 1895
Freedom of Information Act 1982 – Ss 3, 11, 12, 36, 37, 38, 40, 41, 42, 43, 45
Freedom of Information Act 1991 – Ss 29, 38,
Freedom of Information Act 1992 (Qld) – S 46

Attorney-General v Cockcroft (1986) 64 ALR 97; (1986) 10 FCR 180; (1986) 12 ALD 468
Booker and Department of Social Security (unreported, Decision 6189, 13 September, 1990)
Corrs Pavey Whiting and Byrne v Collector of Customs, Victoria (1987) 13 ALD 254; (1987) 74 ALR 428; (1987) 14 FCR 434; (1989) 7 AAR 187
Goodwin v Phillips (1908) 7 CLR 1; (1908) 9 SR (NSW) 65
Harris v Australian Broadcasting Corporation and Others (1983) 5 ALD 545; (1983) 50 ALR 551; (1983) 78 FLR 236
Harris v Australian Broadcasting Corporation and Others (1984) 5 ALD 564; (1984) 1 FCR 150; (1984) 51 ALR 581
Marco Ascic v Australian Federal Police (1986) 11 ALN N184
Re B and Brisbane North Regional Health Authority (Decision No. 94001, 31 January, 1994, Mr Albietz, Information Commissioner)
Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626; (1985) 3 AAR 169
Re James and Others and Australian National University (1984) 6 ALD 687; (1984) 2 AAR 327; (1984) 2 AAR 327
Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64; (1984) 6 ALD 198; (1984) 54 ALR 285
Re Kamminga and Australian National University (1992) 26 ALD 585; (1992) 15 AAR 297
Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112; (1984) 1 AAR 419; (1984) 54 ALR 313
Re Waterford and Department of the Treasury (No. 2) (1984) 5 ALD 588; (1984) 1 AAR 1

DECISION AND REASONS FOR DECISION [2000] AATA 512

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1997/1219
GENERAL ADMINISTRATIVE DIVISION      )

Re WAYNE SMITH

Applicant

AndABORIGINAL & TORRES STRAIT ISLANDER COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 22 June, 2000

Place Brisbane

Decision The Tribunal:

1.affirms the decision of a delegate of the respondent dated 3 October, 1997 in so far as it decided, in relation to document 1.2 that:
(1)the information claimed to be exempt and described below is exempt pursuant to s. 36 of the Freedom of Information Act 1982:
(a)the information in the first two lines of text following the heading "Conclusion"…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] AATA 512
Decision Date: 22 June 2000

CaseChat Overview and Summary

This case involved an application for review of decisions made by a delegate of the Aboriginal and Torres Strait Islander Commission (ATSIC) to refuse access to certain documents under the Freedom of Information Act 1982. The applicant, Wayne Smith, sought access to reports resulting from special audits or investigations into allegations of misconduct, special audits and review into the Canteen Creek Owairtilla Association Incorporated, and reports relating to the construction of community houses at Bardi One Arm Point in Western Australia. The Tribunal considered whether specified passages in the documents were exempt from disclosure under sections 36, 38, 41, and 43 of the FOI Act. The Tribunal found that certain information was exempt from disclosure under sections 36 and 41 of the FOI Act, while other information was not exempt. The Tribunal affirmed the decision of the delegate in part and set aside the decision in part, ordering that the non-exempt information be released to the applicant.

Orders