Re Staats and National Archives of Australia - [2010] AATA 531

CATCHWORDS – SECURITY APPEALS DIVISION - ARCHIVES ACT – exemptions relating to breach of confidence, the proper enforcement or administration of the law and information relating to personal affairs – consideration of meaning of what amounts to a breach of confidence and what are personal affairs – differences between FOI Act and Archives Act lead to different interpretations – decision affirmed but a ground of exemption not accepted in relation to some folios.

PRACTICE AND PROCEDURE – powers of the Tribunal when an applicant fails to appear – dismissal for non-appearance – adjourn the application – hear and determine the application – principles guiding choice of power.

PRACTICE AND PROCEDURE – identifying appropriate respondent.

Administrative Appeals Tribunal Act 1975, ss 2A, 3, 19, 21AA, 21AB, 29, 30, 33, 34J, 35A, 39A, 42A, 44
Archives Act 1983, ss 2A, 3, 3C, 5, 7, 19, 22, 31, 33, 40
Australian Securities and Intelligence Organisation Act 1979, ss 4, 17, 18, 92
Freedom of Information Act 1982, ss 4, 11, 12, 33, 37, 38, 39, 40, 42, 43, 44, 45, 46, 58
Freedom of Information Act 1989 (NSW), s 6
Freedom of Information (Amendment) Act 1991, ss 3, 29, 32
Migration Act 1958, ss 353, 420, 424
Social Security (Administration) Act 1999, s 141

Administrative Appeals Tribunal Regulations 1976, r 15

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14
Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607; 13 ALD 195
Asrat v Vrachnas [1996] FCA 874
Attorney-General’s Department v Cockcroft (1986) 64 ALR 97
Bartlett v Secretary, Department of Social Security (1997) 49 ALD 380
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1
Commissioner of Police v Perrin (1993) 31 NSWLR 606
Corrs Pavey Whiting and Byrne v Collector of Customs of Victoria and Alphapharm Pty Ltd [1987] FCA 266; (1987) 14 FCR 434; 13 ALD 254
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Drake v Minister for Immigration and Ethnic Affairs
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300; 145 ALR 621
Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29
Goldie v MIMA [2002] FCAFC 367; (2002) 121 FCR 383; 72 ALD 652; 36 AAR 238
Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1
Haberfield v Department of Veterans’ Affairs [2002] FCA 1579; (2000) 121 FCR 233; 72 ALD 333
Hanlon v Law Society [1981] AC 124
Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; 67 ALJR 841
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 262 ALR 569; 113 ALD 1
Kumar and Minister for Immigration and Citizenship [2009] AATA 124
McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429; 83 ALJR 1123; 111 ALD 15
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; 78 ALJR 992; 78 ALD 224
News Corporation Ltd v National Companies and Securities Commission [1984] FCA 33; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83; 8 ACLR 593
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Re Aarons and Australian Archives [1986] AATA 380; 12 ALD 155
Re Chandra and Department of Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257
Re Dunn and Department of Defence [2004] AATA 1040; (2004) 84 ALD 419; 39 AAR 322
Re General Merchandise and Chief Executive Officer of Customs [2009] AATA 988
Re Kerferd and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1730
Re McKnight and Australian Archives (1992) 28 ALD 95
Re Millis and Australian Archives (1997) 47 ALD 427
Re Nitas and Minister for Immigration and Multicultural Affairs [2001] AATA 392
Re Petroulias and Commissioner of Taxation [2006] AATA 333; (2006) 62 ATR 1175
Re Slater and Cox and Director-General, Australian Archives (1988) 15 ALD 20
Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 32
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; 151 ALR 505
Throssell and Australian Archives (1987) 14 ALD 292; AAT 4000, 11 December 1987
Throssell and Department of Foreign Affairs (1987) 14 ALD 296; AAT 4001, 11 December 1987
Wiseman v The Commonwealth [1989] FCA 434
Yager v The Queen (1977) 139 CLR 28; 13 ALR 247

DECISION AND REASONS FOR DECISION [2010] AATA 531

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2008/1109

SECURITY APPEALS DIVISION )

Re:(MOHAMMED) STEVEN STAATS

Applicant

And:NATIONAL ARCHIVES OF AUSTRALIA

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 16 July 2010

Decision:The Tribunal decides to:

1.set aside that part of the decision of the respondent dated 29 February 2008 claiming that the folios numbered:
(1)73, 74, 75, 77, 82 and 88 are exempt records under s 33(1)(g) of the Archives Act 1988 in so far as they contain information that would identify an ASIO officer; and
(2) 7, 4, 6, 8, 37, 38, 41, 43, 52, 83, 84, 85 and 86 are exempt records under s 33(1)(g) of the Archives Act 1988 in so far as they contain information identifying a confidential source; and

2. otherwise affirm the decision of the respondent.

S A FORGIE
Deputy President

REASONS FOR DECISION

Under the Archives Act 1983 (Archives Act), Mr Staats applied to the National Archives of Australia (Archives) for access to documents, which are more than 30 years old and which relate to his activities or to those of his brother,
Mr Johannes Staats, or his father, Mr Jeles Staats. These were documents of the Australian Intelligence and Security Organisation (ASIO) and, for the purposes of the Archives Act, were Commonwealth records as they were the property of a Commonwealth institution.[1] As they were in the open access period for the purposes of the Archives Act, responsibility for deciding whether or not access may be given rests with Archives and not with ASIO.

[1] A “Commonwealth institution” includes “an authority of the Commonwealth” under s 3(1) of the Archives Act. As ASIO is a body or organisation established for a public purpose by or in accordance with the provisions of an Act (being the Australian Security and Intelligence Organisation Act 1979), it is an “authority of the Commonwealth” as that term is defined in s 3(1) of the Archives Act.

Archives indentified 92 folios or pages as coming within Mr Staats’ application for access and within the 30 year open access period under the Archives Act. They contained information relating to Mr Staats and his brother and father as well as relating to activities of the Communist Party of Australia (CPA) and/or people who shared its ideology. Of those folios, Archives released 61 without redaction i.e. without editing or omitting any words or passages. The remaining 31 were also released but certain pieces of information were omitted from them on the basis that it was exempt under ss 33(1)(a), (d), (e)(ii) or (g) of the Archives Act. Consequently, Mr Staats was given access to those 31folios in a redacted form. I have decided to set aside that part of the decision of the respondent dated 29 February 2008 claiming that the folios numbered 73, 74, 75, 77, 82 and 88 and folios numbered 7, 4, 6, 8, 37, 38, 41, 43, 52, 83, 85 and 86 are exempt records under s 33(1)(g) of the Archives Act but have otherwise affirmed its decision. In practical terms, this means that Mr Staats does not gain access to any further information than he did under Archives’ decision for the information that is not exempt under s 33(1)(g) is exempt under other provisions of the Archives Act.

THE APPLICATION FOR ACCESS

Under the Archives Act, Mr Staats applied to the Archives for access to “all ASIO … records and documents from 1952 onwards … until 1977 the end of the open period for such records on me Steven John Staats … and in relation thereto and in connection therewith all ASIO documents regarding me and Johannes Staats my half-brother from 1952-1977 and my stepfather Jeles Staats.” He did so on 5 August 2007.[2]
[2] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents), s 37

THE DECISIONS

On 24 January 2008, Archives advised Mr Staats that ASIO had transferred three files into its custody: one related to him (A6119.4269) and two related to his half-brother (A6119.4290 Volume 1 and A6119.4291 Volume 2). It advised him that some material on the files had been withheld from public access in accordance with the exemption categories in s 33 of the Archives Act.[3] Those three categories related to information or matter the disclosure of which under the Archives Act:
[3] T documents at 15-16
“… could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth”;[4]
[4] Archives Act, s 33(1)(a)
“… would constitute a breach of confidence”;[5]
[5] Archives Act, s 33(1)(d)
“… would, or could reasonably be expected to:
(i)…;
(ii)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law; or
(iii)…”[6]

“would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person);”[7]

Archives attached a document headed “Statement of reasons under section 40 of the Archives Act 1983” and dated 26 October 2007.[8]

[6] Archives Act, s 33(1)(e)(ii)

[7] Archives Act, s 33(1)(g)

[8] T documents at 21-22

In a letter dated 30 January 2008, Mr Staats asked Archives about three matters relating to his application. First, he asked it to confirm that file No. A6119.4269 contained an update of the folios that had been on the file when the 30 year open access period ended in 1976 rather than 1977 when he applied for access. He noted that the file had concluded at folio 910 in 1976.[9] He specifically asked for access to all material that had been found to be exempt in file No. A6119.4269 in any decision dated before 31 December 1996. In its letter to him dated 29 February 2008, Archives advised Mr Staats about file no. A6119.4269:
[9] Mr Staats’ letter dated 30 January 2008, T documents at 23-24
“This file consists of 92 pages, 61 pages are wholly open (have attracted no exemptions) and 31 pages are partially exempt. The exemptions are minor and no substantial information in relation to yourself has been exempted. The information exempted consists of:
·Source codes and file numbers
·ASIO officers’ names and signatures
·Names of agencies of foreign governments which provide information to ASIO in confidence
You mention in your letter that you had requested an update of the file”
A6119, 910, STAATS Jeles, STAATS Johanna, STAATS Steven John – Miscellaneous paper
This file is a collection of miscellaneous immigration papers which was all the open period information ASIO held in 1994. There is no material to update on this file. The file that has been transferred in response to your recent request (A6119, 4269) is the ASIO case file on yourself that was opened in 1969.
You also questioned the information that was exempted on A6119, 910. In 1994 you were mistakenly informed that A6119, 910 was partially exempt. This was an administrative error. A6119, 910 is wholly OPEN. No information has ever been exempted on that file.”[10]
[10] T documents at 29-30

Mr Staats also asked Archives to explain the delay between the preparation of the statement of reasons and the letter advising him of its decision. questioned the charges that it had calculated as payable by him before he could have access to the documents. The Statement of Reasons attached to its letter addressed the exemptions that it had claimed in relation to ss 33(1)(a), (d), (e)(ii) and (g) of the Archives Act.[11]
[11] T documents at 31-33

MR STAATS’ APPLICATION FOR REVIEW

On 14 March 2008, Mr Staats applied for review of the decision that Archives had made following its review of its earlier decision. His application was to review Archives’ decision “… not to provide the documents for which exemptions had been applied for allegedly pursuant to section 33 of the Act”.[12] His reason for asking for review of the decision was that the documents, for which exemptions are claimed, are linked to him. As I understand what Mr Staats wrote, he needs the documents in order to resolve certain matters that are of grave concern to him.
[12] T documents at 2

THE SECURITY APPEALS DIVISION

Mr Staats’ application is heard in the Tribunal’s Security Appeals Division[13] because s 19(6)(b) provides that the power conferred on it:
“the power under the Archives Act 1983 to review a decision of the Australian Archives in respect of access to a record of the Australian Security Intelligence Organisation;
may be exercised by the Tribunal only in the Security Appeals Division.”
[13] Established under s 19(2)(baa) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

Sections 21AA and 21AB make particular provision for the constitution of the Tribunal in the Security Appeals Division. Section 21AB is concerned with proceedings for review of decisions under the Archives Act in respect of access to an ASIO record. The Tribunal has been constituted in accordance with it.[14]
[14] AAT Act, s 21AB(2)(b)

Section 39A prescribes the procedure that the Tribunal must follow if an application is made for a review of a security assessment. That section has no application in a case such as this which is concerned not with the review of a security assessment but with a review of a decision under the Archives Act.

IDENTIFYING THE RESPONDENT: who is the decision-maker?

Section 30(1) of the AAT provides:
“Subject to paragraph 42A(2)(b),^[[15]] the parties to a proceeding before the Tribunal for a review of a decision are:
(a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;
(b) the person who made the decision;
(c) if the Attorney-General intervenes in the proceeding under section 30A—the Attorney-General; and
(d) any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A).”
[15] Section 42A(2)(b) provides that the Tribunal may direct that the decision-maker ceases to be a party to the proceeding if he, she or it fails to appear at a directions hearing, ADR proceeding or the hearing of the application.

At the hearing, Mr Berger submitted that the person who made the decision was the Director-General of Archives. Therefore, the Director-General should be identified as a party to the proceeding, rather than Archives, as the Tribunal’s Registry has done. Whether I agree with Mr Berger depends on whether the decision-maker is the Director-General or Archives. The answer to that question depends on the interpretation of the Archives Act.

The Archives Act confers powers upon Archives and imposes duties. Among them are duties such as giving all reasonable assistance to persons to enable them to make applications complying with s 40(1)(d). Once an application is made:
“… Archives shall take all reasonable steps to enable the applicant to be notified of a decision on the application as soon as practicable but in any case not later than 90 days after the day on which the application is received by the Archives.”[16]
[16] Archives Act, s 40(3)

Once those 90 days have passed and notice of the decision has not been received by the applicant, s 40(8) provides:
“… the Archives shall, for the purpose of enabling an application to be made to the Tribunal under section 43, be deemed to have made, on the last day of the period, a decision refusing to grant access to the record on the ground that the record is an exempt document.”

The 90 day time period may be varied by regulations made under s 40(4). Once an application has been made on the basis of a decision deemed to have been made under s 40(8), s 40(12) provides that:

“Before dealing further with an application made to it by virtue of subsection (8), the Tribunal may, on the application of the Director-General, allow further time to the Archives to deal with the application for access.”

The reference in s 40(12) to both the Director-General and Archives draws a clear distinction between the role of the Director-General and Archives. The role of the Director-General is in relation to an application to the Tribunal for more time. The role of Archives is to deal with the application for access.

Archives is an “organization” established under s 5(1) of the Archives Act. As such, it has no means of acting but s 7(2) provides the instrument through which Archives can exercise its powers and perform its duties under the Archives Act. That section provides:
“The Director-General, in addition to exercising powers or performing duties expressly conferred or imposed on him or her by this Act, may, in the name of the Archives, exercise any powers and perform any duties that are by this Act expressed to be conferred or imposed on the Archives.”

The Director-General may delegate the powers conferred on him or her under the Archives Act.[17] When exercised by a delegate, those powers are deemed to have been exercised by the Director-General.[18] When the Director-General, or a delegate, exercises powers conferred, or duties imposed, on Archives under the Archives Act, it is clear from s 7(2) that the Director-General acts “in the name of the Archives” and not in his or her own name. As s 40 imposes upon Archives the duty to make a decision on an application for access, it follows that the Director-General makes that decision in the name of Archives. The Director-General does not make the decision in his or her own name and the duty to make it is not imposed upon the Director-General but upon Archives. Therefore, Archives is the decision-maker and so, for the purposes of s 30(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act), a party to the proceeding that is Mr Staats’ application for review.

[17] Archives Act, s 8(1)

[18] Archives Act, s 8(2)

MR STAATS’ FAILURE TO APPEAR AT THE HEARING

When Mr Staats failed to appear at a hearing, there were three courses open to me. I will set out each of them and the consequences that follow each of them before giving my reasons for choosing to hear the merits of Mr Staats’ application.

A. Option A: dismiss Mr Staats’ application

Section 42A(2) of the AAT provides:
“If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at … the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant – dismiss the application without proceeding to review the decision; or
(b)…”

A person is taken to appear at a hearing if the Tribunal allows the person to participate by telephone, closed-circuit television or any other means of communication.[19] A “proceeding” is defined in s 3(1) to include “an application to the Tribunal for review of a decision”.[20] A person can only be said to have “failed” to appear, in the sense of “not bothering”[21] to appear if that person has not been given notice that the proceeding is to take place and so cannot make a conscious choice whether to do so or not. That this is so is confirmed by s42A(7) which provides that, before exercising its power under s 42A(2), the Tribunal must be satisfied that “appropriate notice was given to the person who failed to appear at the time and place of the directions hearing, conference, mediation or hearing, as the case may be.”

[19] AAT Act, s 35A(1) and see also s 42A(3)

[20] Paragraph (a) of the definition of “proceeding” in s 3(1)

[21] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

The power to dismiss given by s 42A(2) is discretionary but the section does not sketch any parameters within which it is to be exercised. Apart from the fact of the applicant’s failure to appear and the fact of notice having been given, it will be relevant to consider whether that notice allowed sufficient time for the person to receive it, whether the applicant gave any notice of non-availability, whether there is a history of non-appearance at the Tribunal or non-responsiveness to its directions.

It is also relevant to keep in mind that the Tribunal may reinstate an application that has been dismissed under s 42A(2) if it considers it appropriate to do so.[22] It may do so if the applicant applies to the Tribunal for reinstatement. The application must be made within 28 days of receiving notification that the application has been dismissed.[23] A person may be notified orally as well as in writing.[24] Section 42A(9) permits the Tribunal to reinstate the application if “… it considers it appropriate to do so …” and “… give such directions as appear to it to be appropriate in the circumstances.”
[22] AAT Act, s 42A(9)
[23] AAT Act, s 42A(8)
[24] Goldie v MIMA [2002] FCAFC 367; (2002) 121 FCR 383; (2002) 72 ALD 652; 36 AAR 238 at [24]; 388; 656-657; 242-243 per Wilcox and Downes JJ; Carr J dissenting

A separate power that the Tribunal may use to dismiss an application appears in s 42A(5) of the AAT Act:
“If an applicant for a review of a decision fails within a reasonable time:
(a)to proceed with the application; or
(b)to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.”

Whatever power the Tribunal has used to dismiss an application, it may also reinstate an application under s 42A(10) of the AAT Act but the basis differs from that provided in ss 42A(8) and (9). Section 42A(10) provides:
“If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding on or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.”

The error is not limited to an administrative error.[25] As Wilcox and Downes JJ said in Goldie:

“29 We do not think it is necessary, in order to enliven the Tribunal’s power under s. 42A(10), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor’s mistake induced the dismissal of the action, it could properly be said the application had been ‘dismissed in error’.”[26]

[25] [2002] FCAFC 367; (2002) 121 FCR 383; (2002) 72 ALD 652; 36 AAR 238 at [27]-[35]; 388-390; 657-659243-245 per Wilcox and Downes JJ; Carr J dissenting

[26] [2002] FCAFC 367; (2002) 121 FCR 383; (2002) 72 ALD 652; 36 AAR 238 at [29]; 388; 657; 243 per Wilcox and Downes JJ; Carr J dissenting

Once enlivened, the power to reinstate conferred by 42A(10) is a discretionary power. As with the power under ss 42A(8) and (9), the AAT Act does not set out any parameters guiding the exercise of that discretionary power. I considered those parameters in Re Kerferd and Secretary, Department of Families and Community Services and Indigenous Affairs[27] and I adopt them here:
[27] [2007] AATA 1730
“63.     I considered the limits of the discretion in Re Oates and Secretary, Department of Social Security[28] and in Re White and Department of Families, Community Services and Indigenous Affairs.[29] I adopt my reasons in those cases but for the purposes of this case, will summarise only the main principles that guide the exercise of my discretion.
[28] (1994) 37 ALD 241
[29] [2007] AATA 1712
64.      The first is that reinstatement applications begin from the premise that:
‘… the person whose proceedings have been dismissed should not be prevented from presenting his or her case provided the person’s misconduct has not prejudiced the other party.’[30]
65.      The second principle is that notions of fairness between the parties are also relevant:
‘(20)    When compared with applications for an extension of time, the group of persons in a position like that of an applicant seeking reinstatement of his application, will be substantially smaller. The group does not comprise those in respect of whom a particular type of administrative decision has been made but those who have actually sought review but failed to appear at the appropriate time and whose applications have been dismissed. Arguably, the public interest shifts from ensuring certainty in administrative decision making and consistency of treatment of those affected by decisions to ensuring the efficient operation of a case management scheme and consistency of treatment of those affected by that scheme. Having had regard to the cases of Davies v Pagett^[[31]] and Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,^[[32]] I do not think that the public interest in this sense is directly relevant in its own right. What will be relevant is the regard which the parties have paid to that case management system. It will be relevant in assessing whether the respondent has been prejudiced and whether the respondent is likely to be prejudiced again in the future by the applicants conduct.[33]’
66.      A further consideration is whether the application, if reinstated, would have merits. That does not require an exhaustive consideration of the merits but it does require a consideration of whether the application would have any chance of success if reinstated. To reinstate an application in circumstances in which there can be no chance at all of its being successful is to give false hope to an applicant as well as to waste the resources of both parties let alone of the Tribunal.
67.      Consideration of the merits of the substantive application, if reinstated, is also relevant. This does not mean that I should examine those merits in detail or make findings of fact and express views on the law. Clearly I should not as the issues have not been fully argued and the evidence not fully given. What I must do was set out by President Curtis in Re Emeco Australia (NSW) Pty Ltd and Commissioner for ACT Revenue[34] in the context of an application for an extension of time but no less applicable to an application for reinstatement:
‘… I think that the proper test is to be put no higher than that the applicant has or can have an arguable case.’[35]
The principles regarding the prospects of success or merits of the applicant’s case were stated in the context of applications for an extension of time but are equally applicable to an application for reinstatement. In both instances it is futile to reinstate an application when the Tribunal has no power to review the decision concerned.”[36]
[30] (1994) 37 ALD 241 at 246
[31] (1986) 10 FCR 226
[32] (1990) 27 FCR 388
[33] Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241 at 246-247
[34] (1993) 30 ALD 725
[35] (1993) 30 ALD 725 at 732
[36] [2007] AATA 1730

There is no power under ss 42A(8) and (9) to extend the 28 day time limit. If a person is outside that time limit and cannot establish an error of the sort provided for in s 42A(10), that is not necessarily an end of the matter. Even though the person’s application has been dismissed, the decision of which the person sought review remains unreviewed. The Tribunal has not begun to use its powers to review the decision let alone exhausted them. Therefore, in most cases, the Tribunal can still be asked to exercise them. Unlike the first time when the person presumably applied for review of the decision within the time limit specified in the AAT Act or other appropriate enactment, the person will almost invariably be out of time. Assuming that the AAT Act has not been modified by the enactment providing that an application may be made to the Tribunal, the person will be able to apply to the Tribunal for an extension of the time within which to make that application.
Assuming that it has not been modified by the enactment conferring power upon the Tribunal to review a decision, s 29(7) of the AAT Act is relevant. It provides:
“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.”

The time may be extended even though it has expired.[37]

[37] AAT Act, s 29(8)

The principles that are relevant were summarised by Federal Magistrate McInnis in Phillips v Australian Girls’ Choir Pty Ltd & Anor[38] when he said:
[38] [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).”[39]
[39] [2001] FMCA 109 at [10]

Cowdroy J approved and applied these factors in the context of s 44(2A)(a) of the AAT Act.[40] They are, however, not factors that are applied rigidly for it is apparent from other judgments of the Federal Court that they are factors or principles that must be shaped by reference to the legislative context in which the power is given.
[40]

B.Option B: adjourn the hearing of the application

Section 33(1) of the AAT Act provides that the Tribunal’s procedure in a proceeding is generally within its own discretion. Its discretion is subject only to the AAT Act and regulations made under it and to any other enactment. That power is wide enough to permit the Tribunal to adjourn the hearing of a proceeding such as an application for review.

C.Option C: hear the application

Section 34J enables the Tribunal to review a decision without holding a hearing but by considering the documents or other material lodged with, or provided to, the Tribunal but it may only do so if two conditions are satisfied. The first is that the Tribunal considers that the issues for determination can be adequately determined in the absence of the parties.[41] The second is that the parties consent to its being determined without a hearing.[42] Neither condition is satisfied in this case.
[41] AAT Act, s 34J(1)
[42] AAT Act, s 34J(2)

Nothing in the AAT Act requires that all the parties or their representatives be present at the hearing whether they participate in person or by a means permitted under s 35A of the AAT Act. What the AAT Act requires is that, subject to the confidentiality provisions in ss 35, 36 and 36B and in proceedings other than those in the Security Appeals Division to which s 39A applies:[43]
“… the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”[44]

Although a case in the Security Appeals Division, this is not a case in which s 39A applies. That section only applies if the application being heard in that Division is for a review of a security assessment. This is not such a case for it is a case which requires the Tribunal to use the powers conferred on it under the Archives Act to review Archives’ decision in respect of access to a record of ASIO.

[43] AAT Act, s 39(2)

[44] AAT Act, s 39(1)

In a case such as this, providing the Tribunal observes the requirements of procedural fairness whether given voice to in s 39(1) or under the general law, it can proceed to hear an application in the absence of one or other of the parties.

The consequences of hearing an application for review, whether in the presence of both parties or only one or neither of them is that, once the Tribunal has given its decision, it has generally exhausted its powers. It is said to be functus officio and cannot reopen the matter. It cannot hear it again. That is so even if it should turn out that, for example, the party did not receive notice of the hearing or, through no fault of his or her own, was prevented from attending the hearing. The only course open to the party is to lodge an appeal against the decision to the Federal Court on a question of law under s 44 of the AAT Act or to apply for judicial review under the Administrative Decisions (Judicial Review) Act 1977 or s 39B of the Judiciary Act 1901 on the grounds of administrative error.

C. Why I chose Option C over Options A and B

C.1 General principles

I am most reluctant to choose Option C as a rule for, in most cases, I do not think that it accords with my statutory duty under the AAT Act. That statutory duty has more than one aspect and I will start with what might be thought by some to be at its foundation. That is found in s 2A of the AAT Act which provides:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”

A very similar provision is found in s 141 of the Social Security (Administration) Act 1999 in relation to the Social Security Appeals Tribunal as well as in s 420(1) of the Migration Act 1958 (Migration Act) with reference to the Refugee Review Tribunal (RRT) and in s 353 of the Migration Act in relation to the Migration Review Tribunal.

In addition to these formulations, Parliament usually makes a further requirement regarding the way in which merits review tribunals are to proceed. Taking the RRT as an example, it is not bound by technicalities, legal forms or rules of evidence and must act according to the substantial justice and merits of the case.[45] The AAT’s proceedings, too, are to be:
“(b) ... conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”[46]
[45] Migration Act 1958, s. 420(2)(a) and (b)
[46] AAT Act, ss. 33(1)(b) and (c)

Section 420 of the Migration Act had been considered by the Full Court of the Federal Court but the judges had been divided as to its meaning.[47] Initially the Full Court of the Federal Court did not favour the interpretation adopted by judges such as Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs.[48] After noting internal inconsistencies in s 420, his Honour said:
“….. s 420 contains general exhortatory provisions, the terms of which do not conform to the common understanding of a ‘procedure’, which, to my mind, signifies the steps, more or less precisely identified, which are or may be involved in particular proceedings (cf ‘That which regulates the formal steps in an action or other judicial proceeding’: Black’s Law Dictionary (6th ed) sub tit ‘Procedure’). The distinction between ‘procedures’ and ‘standards’ drawn by O’Loughlin J in Asrat^[[49]], is that which I would make.”[50]

The High Court, on the other hand, did favour Lindgren J’s approach when it considered an appeal from a different judgment. That was in the matter of Minister for Immigration and Multicultural Affairs v Eshetu[51] when it decided that:

“… The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins^[[52]^]. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.”[53]

[47] See, for example, Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 in which Lindgren J said that s 420 does not establish procedures required by the Act to be observed. Hill J had expressed the same view in Eshetu v Minister for Immigration and Multicultural Affairs [1997] FCA 19; (1997) 142 ALR 474 at 484-485. On appeal in Eshetu v Minister for Immigration and Multicultural Affairs [1997] FCA 603; (1997) 71 FCR 300; 145 ALR 621, Davies J at 303; 624 and Burchett J at 314; 634 disagreed with that view saying that s 420 set out procedures with which the Refugee Review Tribunal is bound to comply and that, if it did not comply with them, the Court might set the decision aside. Whitlam J was in dissent. The Full Court, Wilcox, Burchett and North JJ followed the same approach in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; (1997) 81 FCR 71; 151 ALR 505 see, for example at 136-137; 564-565 per North J.

[48] [1997] FCA 324

[49] Asrat v Vrachnas [1996] FCA 874. In that case, O’Loughlin J said of s. 420 that it “… directs the [Refugee Review] Tribunal as to the manner in which it is to exercise its powers…”. A breach of the requirement that the Tribunal “must act according to the substantial justice and merits of the case” would not be a breach of procedure but “… would be a breach of the standards laid down in para 420(2)(b).”

[50] Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 per Lindgren J

[51] (1999) 197 CLR 611; 162 ALR 577

[52] (1992) 28 NSWLR 26

[53] [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577 at [49]; 628; 588 per Gleeson CJ and McHugh J and 659; 613 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at 635; 592-594

There is a question regarding the extent to which merits review tribunals are freed from the obligations applicable to the courts. There are two obligations from which it would seem that they are not freed. One is to ensure that the rules of procedural fairness are observed.[54] In fact, it is difficult to see how a merits review tribunal can be fair, just, economical, informal and quick without adhering to the rules of procedural fairness for:
“… adherence to the requirements of natural justice [or procedural fairness] will ultimately promote administrative efficiency because of the greater public satisfaction and the fewer grievances that will result from the higher quality of decision-making thereby produced.”[55]
[54] See, for example, Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 402-3; 342-343 per Deane J.
[55] Professor SD Hotop (now Deputy President Hotop), Principles of Australian Administrative Law, 6^th edition, 1985 at 171 referred to with approval by Lee J in Courtney v Peters & Ors (1990) 27 FCR 404; 98 ALR 645 at 411; 653

Another obligation from which the Tribunal cannot resile is to reach the correct or preferable decision if it reviews a decision. Bowen CJ and Deane J addressed that obligation in Drake v Minister for Immigration and Ethnic Affairs[56] when they distinguished its role from that of a court:
“ The function of the Tribunal is … an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative decision in a given case or, where a decision has been lawfully made in pursuance of permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists …, that regard must be had to the relevant considerations, and that matters ‘absolutely apart from the matters which by law ought to be taken into consideration’ must be ignored …”[57]
[56] (1979) 24 ALR 577; 2 ALD 60
[57] (1979) 24 ALR 577; 2 ALD 60 at 589; 68-69

This obligation remains relevant whenever the Tribunal conducts a review, whether in the normal way or on the papers under s 34J of the AAT Act, or it makes a decision by consent under s 42C under the AAT Act. It remains relevant under s 42C because the Tribunal cannot make a decision by consent unless, among other criteria, it is satisfied under s 42C(1)(c) that a decision in, or consistent with, the terms agreed by the parties, would be within the powers of the Tribunal. Given the Tribunal’s function, it cannot go outside the law in making its decision and, if making a discretionary decision, must exercise that discretion within the parameters drawn by the law.

Section 25(4A) provides that:
“The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.”

I do not think that this power can be read as overriding the Tribunal’s fundamental obligation to reach the correct or preferable decision. That is an obligation to do so on the material before it but it is an obligation that is shaped also by the Tribunal’s functions. In Haberfield v Department of Veterans’ Affairs,[58] Sackville J referred to them in the context of its duty to reach the correct or preferable decision:

“59 The application of the rule in Browne v Dunn as an aspect of procedural fairness must take account of the statutory functions of the AAT. The task of the AAT is not necessarily limited by the issues identified by the parties. As was said by Brennan J in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, at 425, in substance the AAT’s review of the primary decision is inquisitorial in character, with the AAT under a duty to arrive at the correct or preferable decision on the material before it. Subject to the rules of procedural fairness, the AAT is entitled to inform itself on any matters relevant to the pleadings in such manner as it thinks appropriate: s 33(1)(c).”

[58] [2002] FCA 1579; (2002) 121 FCR 233; 72 ALD 333

Sackville J referred to the inquisitorial powers available to the Tribunal but I note that they are not unlimited. Any that it has must be found in the powers that it has been given either under the AAT Act or under the enactment conferring jurisdiction upon it to review a particular decision. Under the AAT Act, the Tribunal has powers it can call upon both in the preliminary stages and at the hearing. Depending on the stage, the Tribunal may ask questions of those who are called to give evidence and ask questions of the parties about the evidence that is given and the documentary and other material that is produced. That is to say, part of its role is to test the evidence and the submissions. It can identify issues that the parties have not previously been identified and ask them to address them because this is part of its role. As the Full Court said in Grant v Repatriation Commission:[59]
“ An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the Tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15].”[60]
[59] [1999] FCA 1629; (1999) 57 ALD 1; Merkel, Goldberg and Weinberg JJ
[60] [1999] FCA 1629; (1999) 57 ALD 1 at [18]; 6

In doing so, the Tribunal may choose to ask the parties to produce further evidence or material that is relevant to the review of the decision or it may choose to direct them to do so using its power under s 33 of the AAT Act. Where the party is the decision-maker, it may do so using its power under s 37(2) but that would be limited to documents of the sort described in s 37(1) i.e. in the possession of the decision-maker or under the decision-maker’s control. On occasion, it may conduct its own research of, for example, the literature regarding a particular issue but, if it does so and proposes to rely on it, procedural fairness requires that it show the parties and give them a reasonably opportunity to consider it and, if they wish, rebut or support it.

The parties may ask the Tribunal to issue a summons under s 40(1A) directed to those who are not parties to give evidence, produce information, documents or things or to do both. Where the evidence or material is held by third persons or a witness is required, the Tribunal may exercise its power to issue summonses to persons to appear as witnesses on its own initiative rather than at the request of a party. It is unlikely to do so for two reasons. The first is that the Tribunal would have to meet the associated costs and the fiscal constraints within which it operates are such that it is unlikely to take that path. The second is that, apart from fiscal constraints, there are other constraints that are equally practical. It can never be as well placed as either or both of the parties in identifying information that is or may be relevant. As a rule, summonses are best left to be issued on the request of the parties. The third arises from the very recent case of Minister for Immigration and Citizenship v SZIAI,[61] in which the High Court said:
“… In the exercise of its review function, the [Refugee Review] Tribunal may obtain such information as it considers relevant[62]. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act[63].”[64]

As is apparent from the joint judgment of Gummow and Hayne JJ, with whom Gleeson CJ agreed, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB and to which the High Court referred in this passage, the Tribunal’s duty may be modified by specific provisions of the enactment conferring its review power.[65]

[61] [2009] HCA 39; (2009) 259 ALR 429; 83 ALJR 1123;111 ALD 15

[62] Migration Act, s 424

[63] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; 78 ALJR 992; 78 ALD 224 at [43]; 21-22; 999; 233-234 per Gummow and Hayne JJ with Gleeson CJ agreeing at [1]; 13; 992; 225

[64] [2009] HCA 39; (2009) 259 ALR 429; 83 ALJR 1123; 111 ALD 15 at [1]; 430; 1125; 16

[65] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; 78 ALJR 992; 78 ALD 224 at [43]; 21-22; 999; 234-235

It would seem, then, that the Tribunal cannot fall back on s 25(4A) to limit the questions of fact, the evidence and the issues that it considers if, in doing so, it fails to isolate issues or ignores questions of fact that it is required to decide in order to reach the correct or preferable decision. Having done that and having drawn them to the attention of the parties and tested the evidence and material as well as the submissions, it cannot be required to conduct its own independent enquiries. Despite that restriction upon its duty, I respectfully suggest that, if the existence of further relevant material were drawn to its attention and the parties (or one of them) were prepared to take steps (such as request a summons) to obtain it, s 25(4A) could not be called upon to support a decision to refuse the party to obtain it. There may be other grounds that would justify the Tribunal in refusing to accept the material but they would have to be formulated in light of the principles to which I will turn shortly.

The obligation to reach the correct and preferable decision in this way is clearly within the compass of fairness and justice referred to in s 2A but how is it balanced with the Tribunal’s carrying out its functions in a way that is also economical, informal and quick? Clearly, it is not always possible to achieve all five objectives in any one case for they will be inconsistent but does s 2A require that? Its “functions” are its purpose or duties.[66] The AAT Act does not prescribe the Tribunal’s functions but they may be thought of as being to provide the avenue by which an administrative decision may be reviewed on its merits. That avenue has various laneways in the sense that it is the Tribunal’s function to provide for merits review by means of a formal hearing but it is also part of its function to encourage the parties to review the decision themselves and to reach a negotiated settlement, with or without the Tribunal’s assistance, as to the terms of a decision that is within the Tribunals’ power to make. At times, a negotiated settlement may lead to an applicant’s withdrawing an application and the parties reaching an agreement that it does not ask the Tribunal to implement, in effect, by making a decision under s 42C of the AAT Act. At others, an applicant may decide that proceeding with the application is unlikely to lead to a favourable outcome and so withdraws the application.
[66] Chambers 21st Century Dictionary, Revised Edition, 1999

The function is to provide the avenue of review. Fulfilling that function will lead to the resolution of applications either by the Tribunal’s making a decision, the parties reaching a decision and seeking a decision by consent or the application’s being dismissed either by order of the Tribunal[67] or by the applicant’s withdrawing it.[68] They are outcomes of the Tribunal’s fulfilling its function and not a function in itself. That is to say, resolution of applications is an outcome and not a function. This distinction becomes relevant when considering how to balance the five objectives set out in s 2A and I return to this below.
[67] AAT Act, ss 42A(1) and (2) and s 42B
[68] AAT Act, ss 42A(1A) and (1B)

Also relevant in considering how to balance the objectives in s 2A may be case management considerations generally. These have been considered by the High Court when considering the way in which applications for adjournment or of amendment to pleadings had been decided at first instance. In the case of Aon Risk Services Australia Limited v Australian National University[69] (Aon), French CJ said:
“ In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed. The discretion of the primary judge miscarried.”[70]
[69] [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14
[70] [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 at [5]; 182; 17

His Honours’ view mirrored that expressed in the joint judgment of Brennan, Deane and McHugh JJ in Haset Sali v SPC Ltd[71] (Haset Sali) when they said:
“11. In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v. Rogers … [(1979) 27 ALR 330, at p.337] this ‘may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing’. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.”[72]

And later:

“ The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales … The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. Because these considerations are singularly within the knowledge of the court to which an application for an adjournment is made, there is an added reason why this Court should not interfere with a decision made on such an application.”[73]

[71] [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841

[72] [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841 at [11]; 629; 843-844

[73] [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841 at [23]; 636; 849

French CJ approved both passages in Aon.[74] He continued:
“ The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court’s lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn …”[75]
[74] [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 at [26]; 190; 24
[75] [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 at [27]; 190-191; 24-25; footnote omitted

It is clear from the judgments and from the context in which the High Court considered the relevance of case management in Aon that case management is not a deciding factor. It is, instead, a relevant factor and the weight it is accorded can only be determined when regard is had to all of the factors that are relevant. In that particular case, the factors that the High Court had to consider included those in Rule 21 of the Court Procedure Rules (ACT). That Rule provides:
“(1) The purpose of this chapter, and the other provisions of these rules in their application to civil proceedings, is to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense.
(2)Accordingly, these rules are to be applied by the courts in civil proceedings with the objective of achieving –
(a)the just resolution of the real issues in the proceedings; and
(b)the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
(3)The parties to a civil proceeding must help the court to achieve the objectives.
(4)The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.”

In their joint judgment, Gummow, Hayne, Crennan, Kiefel and Bell JJ weighed the objectives identified in Rule 21 when they said:
“97.     The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings^[[76]^] in mind. … The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.
98.      Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a ‘just resolution’ is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re‑pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
99.      In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith [[1884] 26 Ch D 700] Bowen LJ described an order for costs as a panacea that heals all …. Such a view may largely explain the decision of this Court in Shannon v Lee Chun …[(1912) 15 CLR 257 at 262-266; [1912] HCA 52], which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment …. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.
…
102.     The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill‑effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court’s discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.”[77]
[76] In Queensland v J L Holdings Pty Ltd [Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; 141 ALR 353; 71 ALJR 294, Dawson, Gaudron and McHugh JJ had decided that the trial Judge had erred in refusing an application by JL Holdings for leave to amend its defence saying at 155; 357-358; 297:
“… Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment ,such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. …”
[77] [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 at [97]-[99] and [102]; 213-215; 43-44 footnotes omitted

It is clear from this passage that their Honours saw a just resolution of proceedings as the paramount purpose of Rule 21 but it is equally clear that they recognised that justice does not take a single form. It is to be understood in, and take its form from, what is required to reach a just resolution of the “real issues” in the proceeding and what is required for the timely disposal of the proceedings and of all others. Those objectives are not to be attained at the expense of giving the parties the proper opportunity to present their case but what amounts to a proper opportunity is determined by reference to, among other relevant matters, the speedy and efficient disposition of the matter.

This approach is consistent with that adopted earlier by Brennan, Deane and McHugh JJ in Haset Sali. As they said, the “… contemporary approach to court administration …has put another consideration onto the scales …”. That was consideration of the whole system of case management in the particular court. They did not, however, say that it was the only consideration. Indeed, an examination of the majority’s judgment shows that they paid it no express regard in resolving the appeal. Instead, they had regard to the particular findings made by the Victorian Court of Appeal[78] when refusing to adjourn an appeal for a two week period rather than its system of case management or of case management principles. The Court of Appeal had refused after finding that the basis on which the application had been included an assertion that the Senior Counsel engaged by Mr Haset Sali required three months’ notice and was not available, that he had not attempted to obtain another Senior Counsel even though 29 appropriate Senior Counsel were available, that the application for adjournment was designed to stave off proceedings for sequestration of his estate, that the application was a tactic of delay and that the appellant did not want the appeal to go on at all. It is clear from the following passage from the judgment of the majority that the particular circumstances of the case, rather than case management principles and consideration, were the determining factors:
“19. Having regard to the findings of the Full Court, the appellant suffered no injustice when the Court refused to adjourn the hearing for two weeks. It is true that it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings. The members of the Full Court were, however, conscious of that fact. Thus, Tadgell J commented that it was, in his experience, ‘unique’ that the Full Court had had to refuse ‘an application for an adjournment of this kind’. Clearly, their Honours considered that the circumstances before them were both extraordinary and extreme. On the findings which they made, they were fully entitled to be of that view. On those findings, the appellant was the author of his own misfortune.”[79]
[78] Marks, Tadgell and Harper JJ
[79] [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841 at [19]; 631; 845

The principle that underlies both Haset Sali and Aon is that objectives of the sort set out in s 2A of the AAT Act, and that are applicable in a case management system, must be understood and applied in a particular case in light of the particular circumstances of that case and in light of the Tribunal’s functions and its duties. I have referred earlier to those functions and to the Tribunal’s duties to act with procedural fairness and to reach the correct or preferable decision.

Is the place of the Tribunal in the overall system of public administration a relevant consideration? Its decisions are one part only of the administrative decision-making process when Parliament has conferred power upon it to review the merits of a particular decision or class of decisions. This was explained by Davies J in Jebb v Repatriation Commission[80] when he said that “… the general approach of the tribunal has been to regard the administrative decision making process as a continuum and to look upon the tribunal’s function as part of that continuum …”.[81] It is a continuum that encompasses not only the role of the initial or primary decision-maker in making the initial decision but extends through the internal review processes provided for in the agency and to external review in the Tribunal. Parliament has provided for appeals on questions of law and for judicial review under the Administrative Decisions (Judicial Review) Act 1977 and under s 39B of the Judiciary Act 1903.
[80] (1988) 80 ALR 329
[81] (1988) 80 ALR 329 at 333

Given that the objective that s 2A requires the Tribunal to pursue is that of “providing a mechanism of review” that meets the five stated objectives, I do not think that the fact that the Tribunal’s decision may be reviewed either on appeal or on judicial review is itself a relevant factor. It is the “mechanism of review”, and not the outcome, that is relevant. Every application will be finalised at some stage but choosing a means to finalise it that, for all practical purposes, may restrict the parties’ opportunity to take advantage of the avenues of appeal or review of its decision may be a quick way of finalising an application and may even be an informal way but it may not be one that is fair or just. If the matter should go on appeal or judicial review, it may not even turn out to be economical. It may not be fair or just because it may make assumptions about, for example, the reasons for an applicant’s not attending a hearing of a proceeding or not complying with a direction in circumstances in which that person has been given reasonable notice of the hearing or of the direction but, unknown to the Tribunal, circumstances make it unreasonable to expect attendance or compliance. In such circumstances, it may be difficult to be satisfied that all the relevant information is available to the Tribunal or all relevant arguments known.

C.2 The background leading to the hearing

This is a case in which Mr Staats lodged his application on 14 March 2008 in Sydney. Mr Staats did not attend the first conference before a Conference Registrar listed for 20 May 2008. The second conference was listed for 14 August 2008 and he did attend that. The next was listed for 10 December 2008 and he attended that also. The Conference Registrar issued a direction dated 23 December 2008 requiring Archives to lodge certain documents in accordance with the President’s Practice Direction relating to applications to review decisions made under the Freedom of Information Act 1982. Archives was required to do so by 27 February 2009. Mr Staats was directed to lodge any additional material on which he wished to rely by 20 March 2009. Both were to advise the Registry of suitable hearing dates in April 2009. On 6 February 2009, Mr Staats advised that he was available for a hearing in Sydney on 28 April 2009. On 23 March 2009, Mr Staats telephoned to say that he had been hospitalised and that he would like an extension of the time with which to comply with the direction.

Another conference was held on 9 April 2009 and the direction was varied to give Mr Staats until 24 April 2009 to lodge further information. The varied direction was dated 23 April 2009 and it extended the time for Mr Staats’ compliance to 4 May 2009. In a telephone call, Archives asked that the hearing dates for this application and several others lodged by Mr Staats in the Sydney Registry at the time not be set down until the hearing of two others had been finalised. As it turned out, those two matters were among those ultimately heard and dismissed by Senior Member Friedman on 2 June 2010.

A file note dated 7 October 2009 refers to other applications that Mr Staats has made to the Tribunal and the fact that all were to be heard together. It also noted that Mr Staats had asked the Tribunal to issue a summons directed to the Director-General of ASIO. It may be that he made that request on 29 April 2009 but it is difficult to work that out precisely. The file note recorded that the summons was to be referred to the presiding member once a date for the hearing had been set.

Mr Staats encountered various difficulties including the theft of his mobile telephone. At his request, the application was transferred to the Melbourne Registry on 7 October 2009. A directions hearing was scheduled for 6 November 2009 but it was vacated after he advised that his documents relating to his applications in the Tribunal had been stolen and he had asked for copies of them. In a letter dated 30 October 2009, he asked that he be given further time to return the Hearing Certificate advising of his availability in this matter. He was advised by the Acting District Registrar when he telephoned on 5 November 2009 that the directions hearing had been vacated. At the time, he had left Melbourne and did not indicate when he would return. In letters dated 2 and 6 November 2009, the Tribunal sent him copies of his application, the T documents, correspondence he had written to the Tribunal and correspondence written on behalf of Archives to him. On 9 November 2009, Mr Staats advised that he was still in Sydney and provided an email address and did not advise of any change to his address shown on his application.

On 22 March 2010, the Registry wrote to Mr Staats at the New South Wales address advising him that his application would be heard at some time during the period April to July 2010. It asked him to complete a Hearing Certificate specifying the days on which he would be unavailable to attend the hearing. He was also advised:
“Any request to defer listing from the above period will only be considered in exceptional circumstances upon written request to the Tribunal and written notification, by you, to the other party or parties. You should also seek the consent of the other party or parties to this request.
Please note if you do not return the enclosed hearing certificate, the matters may be listed without further consultation.”

Mr Staats did not return a Hearing Certificate and the matter was listed for hearing on 1 June 2010 at the Tribunal’s Melbourne Registry.

It appears from the file that Mr Staats had asked in or about October 2009 that a summons be issued to Archives. He had lodged the summons and, on or about 30 April 2010, this was brought to the attention of Senior Member Friedman then constituted to hear this matter. He said that the summons should be issued and a return date of 24 May 2010 was allocated. The summons was directed to Mr Paul O’Sullivan, Director-General of ASIO requesting him to produce “All documents held by ASIO regarding my affidavit herein & herewith sent to AAT Sydney NSW 29 April 2009 of 8 pages”. Mr Staats’ affidavit addressed a number of issues relating to matters such as, in the barest summary, the alleged activities of his family members, his own upbringing and parentage and the activities of foreign dignitaries and powers.

Both Mr Staats and Archives’ solicitors were advised of the return date in a letter dated 4 May 2010. I understand that Registry practice in the Tribunal is to return the summons to the person requesting it by enclosing it in the letter advising the return date. It is also normal Registry practice not to include any information as to the fact that the party seeking the summons must serve the summons in accordance with

r 15 of the Administrative Appeals Tribunal Regulations 1976 (AAT Regulations). Regulation 15 (b) provides that a summons issued under s 40(1A):
“shall be served on a person by:
(i)delivering a copy of the summons to the person personally; and
(ii)showing the original of the summons to the person at the time at which the copy is delivered to him.”

While it is fair to expect that a legally represented party need not be given such advice, it is questionable whether it is fair not to mention it to an unrepresented party such as Mr Staats. Normal practice in the Melbourne Registry is to advise an unrepresented applicant of it should he or she seek advice about the summons procedure. In this case, Mr Staats did not make his initial request for a summons to the Melbourne Registry and I do not know of the informal practice in the Sydney and Canberra Registries which have also handled this matter. I have been unable to locate any note on the file that suggests that he was advised of his obligation if he wanted Mr Paul O’Sullivan, Director-General of ASIO to produce the documents he sought.

Having received the letter of 4 May 2010, Archives’ legal representatives, the Australian Government Solicitor (AGS) telephoned the Tribunal’s Registry to obtain a copy of the summons. This was followed by another call on
12 May 2010 and a copy of the summons was sent to AGS on 13 May 2010.

After AGS drew the attention of the Registry to s 21AB of the AAT Act, I was constituted to hear the matter in lieu of Senior Member Friedman. Section 21AB(2) provides that, in a case such as this relating to the review of an Archives’ decision refusing to grant access to a record in accordance with a request under s 40 of the Archives Act and claiming that it is an exempt record on the basis of ss 33(1)(a) or (b) of that Act, the Tribunal must be constituted by either three presidential members or one presidential member. A “presidential member” includes a Deputy President but it does not include a Senior Member.[82] The reconstitution was made on 13 May 2010. On the same day, Deputy President McDonald constituted himself to hear the return of summons on 24 May 2010.
[82] AAT Act, s 2(1)

On 13 May 2010, the Tribunal’s Registry advised Mr Staats that this matter would be heard on 1 June 2010 as previously advised and that his other applications, which continued before Senior Member Friedman, would follow. He was also advised that Archives had engaged counsel.

In a letter dated and received on 21 May 2010, AGS asked that the return of summons hearing be vacated. They had been instructed that Mr Staats:
“2.      … has not yet served any summons on the respondent or any other relevant party (eg. the Director-General of ASIO). As a result, in our view the respondent is not required to respond to the summons.
3.        …
4.        Due to the proximity of the return of summons hearing to the hearing in 2008/1109 and 4497 and jurisdictional hearing in 2008/4278, 4278, [sic], 4280 and 4282, the respondent intends to object to any summons unless narrowly confined and their probative value is significant to the hearing of the applications. Given the difficulty in getting these matters to hearing, the respondent would be most concerned if the hearing dates were jeopardised by the issue of summonses which are of no demonstrable value to the Tribunal’s review of these applications.
5.        …’

I do not understand why it should have been served upon them or their client, Archives. It was addressed to Mr Paul O’Sullivan, Director-General of ASIO and it was upon him that r 15(b) required it to be served. The documents sought by Mr Staats under the Archives Act were in the possession of ASIO but ASIO was not the decision-maker and not the respondent in this case.

[199] (1997) 47 ALD 427

[200] Re Nitas and Minister for Immigration and Multicultural Affairs [2001] AATA 392 at [20]

[201] (1997) 47 ALD 427 at 430

In Re Petroulias and Commissioner of Taxation,[202] I said:
“However described, the mosaic theory is not a rule of law determining an outcome. It is no more than a name given to the task of evaluating evidence in order to come to a decision when the evidence comprises that within the documents under consideration and other sources. The decision that is reached is, of course, formulated by the law or is a sub-set of that decision.”[203]

It seems to me that this remains the case.

[202] [2006] AATA 333; (2006) 62 ATR 1175

[203] [2006] AATA 333; (2006) 62 ATR 1175 at 1185; [30]

D.2 Section 33(1)(e)(ii): its application in this case

In view of the findings that I have made above regarding the application of the exemption in s 33(1)(d) to the documents, I am also satisfied that disclosure of the documents would enable the identification of those confidential sources who are named in the documents.[204] Even where the confidential sources are not named and are identified by a code, I am satisfied that disclosure of those codes in the context in which they appear could reasonably be expected to enable the confidential source to be identified. Identification may not be immediately apparent but, by piecing the codes with the context in which they appear together with other information that is available in the documents or that may be available elsewhere, I accept that it could reasonably be expected that the identity of a confidential source of information could be revealed.
[204] Folios 54, 74, 76, 88, 89 and 92

Those confidential sources are sources of information “in relation to the enforcement or the administration of the law”. It is ASIO’s responsibility to carry out its functions but there is a relationship or connection between ASIO and those confidential sources. Their presence and the possibility that they may communicate relevant information to it are part of the means employed by ASIO to obtain information. Information that they do impart to ASIO is part of the information which it may draw upon in carrying out its functions under the ASIO Act. It follows that I am satisfied that disclosure of the documents in so far as they would reveal the name of a confidential source are exempt under s 33(1)(e)(ii) of the Archives Act.

The other group of documents in relation to which Archives has claimed exemption under s 33(1)(e)(ii) are those in which codes have been used to identify a confidential source.[205] For the reasons that I have previously given, I am satisfied that disclosure of those codes could reveal a confidential source. The position of those confidential sources identified by codes is the same as those identified by name. They are confidential sources of information in relation to the enforcement or administration of the law for the same reasons and so are exempt under s 33(1)(e)(ii).

E. Section 33(1)(g): information relating to personal affairs

[205] Folios 52, 83, 84, 85 and 86

E.1Section 33(1)(g): its interpretation

Section 33(1)(g) refers to “personal affairs” and was not amended in 1991 when the reference in s 41 of the FOI Act to “personal affairs” in a similar exemption was amended to “personal information”.[206] The expression “personal affairs” was not defined in the FOI Act at the time just as that continues to be the case in the Archives Act now. In News Corporation Ltd v National Companies and Securities Commission[207] (News Corporation) Bowen CJ and Fisher J agreed with St John J that the expression “personal affairs” refers only to the affairs of a natural person and not to those of a corporation.[208] They and St John J recognised that both natural persons and corporations can have business affairs. They are the subject of a separate exemption in the FOI Act and it is found in s 43. In addition, St John J identified “… affairs relating to family and marital relationships, health or ill health, relationships with and emotional ties with real people.”[209] They were the affairs that came within the notion of “personal affairs” and led to Parliaments’ amending the FOI Act by inserting a broader expression of “personal information” i.e.
“personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”[210]
[206] Freedom of Information Amendment Act 1991; Act No.137 of 1991; ss 3(d) and 29
[207] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83; 8 ACLR 593; Bowen CJ, Fisher and St John JJ
[208] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83; 8 ACLR 593 at 73; 286; 91; 602
[209] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83; 8 ACLR 593 at 79; 293; 97; 608
[210] FOI Act, s 4(1)

The interpretation adopted by the Full Court of the Federal Court in News Corporation is consistent with that adopted almost ten years later by the New South Wales Court of Appeal in Commissioner of Police v Perrin[211] when interpreting cl 6(1) of Schedule 1 of the Freedom of Information Act 1989 (NSW). That section provides:
“A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).”
[211] (1993) 31 NSWLR 606

Kirby P canvassed the history of the legislation and various Commonwealth and State authorities. He concluded that “In its context, the words ‘personal affairs’ mean the composite collection of activities personal to the individual concerned.”[212] Mahoney JA placed some emphasis on the word “involve” saying:
[212] (1993) 31 NSWLR 606 at 625
“ In considering the effect of cl 6(1) it should be accepted that its operation is not narrow. It proscribes not merely the disclosure of a fact which is itself part of the personal affairs of a person but also the disclosure of information which will ‘involve’ the unreasonable disclosure of information concerning such personal affairs. The term ‘involve’ extends the operation of the clause.
It would, in my opinion, include the disclosure of X (not part of his private affairs) which, in the circumstances of the case, ‘would involve’ the
disclosure of information Y which is information concerning such personal
affairs. ‘Involve’ has been said to be a wide word: Regazzoni v KC Sethia

(1944) Ltd [1958] AC 301 at 303; see United City Merchants (Investments)

Ltd v Royal Bank of Canada [1982] QB 208 at 227. It does not, I think,
ordinarily extend to facts which are merely inferences or deductions from the
fact revealed and other facts: see Dawson v The Queen (1961) 106 CLR 1
at 9-10. But it would involve information directly involved or resulting from
what has been disclosed.
However, in construing or applying cl 6 it is unwise to deal in absolutes. Whether a fact is part of a person’s personal affairs may be affected by the circumstances of the case. The term is used in other portions of the Act: see, for example, s 16(2) and s 31. If it be assumed the term is used consistently throughout the Act its scope is not narrow. In s 16(2) the right to see documents extends to the documents of a local authority which ‘concern the person’s personal affairs’. The right to seek documents from a local
authority would on that basis, I think, include a document concerning, for
example, the value of his land, the cost of services supplied to him by the
local authority, and the like.
A person’s name would not, I think, ordinarily be, as such, part of his
personal affairs. It is that by which, not merely privately but generally, he is
known. In some circumstances, it may be personal in the sense of private but
[213] (1993) 31 NSWLR 606 at 637-638
that has not been shown to be the case here.”[213]

As to the disclosure of names of police officers and employees involved in preparing reports within the New South Wales Police, Kirby P concluded that disclosure could not disclose information concerning their personal affairs. They were undertaking their duties and the affairs disclosed were not their personal affairs but those of the agency. He distinguished personnel records, private relationships, health reports and perhaps private addresses and characterised them as attracting the exemption.[214] Mahoney JA emphasised that, in construing or applying cl 6(1), “it is unwise to deal in absolutes. Whether a fact is part of a person’s personal affairs may be affected by the circumstances of the case.”[215] Clarke JA illustrated that point beginning with the proposition that the words “personal affairs” should be given a wide, rather than a narrow, meaning:
“… Even on that basis I am unable to accept the proposition that the name of a person must necessarily be a matter concerning that person’s personal affairs. It seems to me that, generally speaking, the Act is concerned with ‘the affairs’ of individuals and that as a matter of ordinary English a person’s name would not be considered as falling within that concept. On the other hand it may be that in particular circumstances it may be right to conclude that a person’s name, or the particular name that that person was using at that time, was a matter concerning that person’s personal affairs. Those considerations lead me to conclude that whether in particular circumstances a person’s name concerned that person’s personal affairs is a question of fact and that it cannot be laid down as a matter of law that the name must always concern a person’s personal affairs.”[216]
[214] (1993) 31 NSWLR 606 at 625
[215] (1993) 31 NSWLR 606 at at 638
[216] (1993) 31 NSWLR 606 at at 644

Unlike the approach I have taken in relation to s 33(1)(d) of the Archives Act, I do not think that I can distinguish these cases. Instead, I must apply them. Although not decided in the context of s 33(1)(g) of the Archives Act, they have considered precisely the same expression and in a context that pays regard only to the law and so to the modern notions of the duties and responsibilities of administrative decision-makers.

The other aspect of the exemption, whether it be in freedom of information legislation or in s 33(1)(g) of the Archives Act is that disclosure under the relevant enactment would involve the “unreasonable disclosure” of information relating to personal affairs. This has been considered in the context of s 41(1) of the FOI Act. Beginning with Wiseman v The Commonwealth,[217] the Full Court of the Federal Court said of s 41(1) that “[w]hether or not disclosure would be ‘unreasonable’ is a question of fact and degree which calls for a balancing of all the legitimate interests involved”. A similar view had been expressed earlier by Deputy PresidentHallin Re ChandraandDepartment of Immigration and Ethnic Affairs[218] (Chandra) when he said:
“51. ... [I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what
s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
52. However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.”[219]

[217] [1989] FCA 434; Sheppard, Beaumont and Pincus JJ

[218] [1984] AATA 437; (1984) 6 ALN N257

[219] [1984] AATA 437; (1984) 6 ALN N257 at [51]-[52]; N259

Lockhart J also referred to the need to have regard to the stated object in s 3 of the FOI Act in Colakovski v Australian Telecommunications Corporation[220] (Colakovski):
“ Before parting from the case there is a final observation I wish to make. The FOI Act is, as its preamble states, ‘an Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies’. The object of the Act is stated in s 3 as being to enable Australians to have access, as far as is possible, to information in the possession of the Federal Government by making available to the public, information about the operations of Departments of the Commonwealth and its public authorities and by creating a general right of access to information in documentary form in the possession of ministers, departments and public authorities. But, as s 3 itself recognises, there are limitations upon these rights of the Australian community which are expressed as being ‘necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities’”.[221]
[220] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1
[221] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at [35]; 438; 122; 270; 9

This passage underlines what is clear from s 3(1)(b) of the FOI Act itself. The right of access to documents is not given pre-eminence over the exemptions and exceptions to it so that the right of access is construed liberally and the exception and exemptions narrowly. The right of access is subject to the exceptions and exemptions necessary for the protection of certain public, personal and private interests. The exceptions and exemptions necessary to protect those interests are set out in Part IV and s 7 when read with Schedule 2. If a document comes within those provisions, it is an “exempt document” as defined in s 4(1). The duty to give access to a document requested under the FOI Act does not extend to an exempt document. That is the effect of s 18(2). Had Parliament given the right of access a pre-eminence of some sort, the correlative duty imposed on the Minister or agency would have mirrored that right. As it is, the duty mirrors a right that is qualified. It follows that the exceptions and exemptions to the right of access should not, as a matter of principle, be construed narrowly and the right of access more liberally. Each must be given its meaning according to its terms and the context in which it appears and not artificially narrowed or extended. It is apparent from Colakovksi that a decision as to whether disclosure under the FOI Act would involve the unreasonable disclosure of personal information involves a balancing exercise.

The Archives Act is drafted a little differently from the FOI Act. It does not create a general right of access as the FOI Act does in s 11(1) and recognises in its objects in s 3(1)(b). That right is specifically stated to be subject to the Act, in the case of s 11(1), and, in the case of s 3(1)(b), the exceptions and exemptions are more closely identified. In contrast, s 2A of the Archives Act does not create a right of access. It does provide that its objects are to provide for Archives and that Archives’ functions include “preserving and making publicly available the archival resources of the Commonwealth”.[222] What amount to the “archival resources of the Commonwealth” are determined by the Director-General of Archives[223] subject to the qualifications in s 6A. It follows that Archives’ obligation, found in s 31(1), to cause a Commonwealth record that is in the open access period, in the care of Archives or the custody of a Commonwealth institution and is not an exempt record, is necessarily circumscribed by the Director-General’s determination as to the Commonwealth records that are preserved and so become part of the Commonwealth’s archival resources.[224]
[222] Archives Act, s 2A(a)(ii)
[223] Archives Act, s 3C
[224] The same is true of those documents that are “documents of an agency” for the purposes of the FOI Act. Documents are kept or destroyed according to disposal authorities issued by Archives either generally in the case of administrative documents of general application or in relation to particular agencies in relation to documents related to their particular functions. What remains in the possession of an agency for the purposes of the FOI Act will, as time passes, not necessarily be all the documents ever held by an agency in relation to a particular matter.

Although differently worded, it seems to me that the approach taken in cases such as Chandra and Colakovski are equally applicable in considering what is unreasonable disclosure in the context of s 33(1)(g) of the Archives Act. The Archives Act also represents a balance between making available to the public records that are records belonging to the Commonwealth and so to the people on the one hand and interests identified by Parliament as essential to preserve the workings of government, the security and defence of the country and its international and State relations and an appropriate degree of privacy for those about whom the Commonwealth holds information about their business and personal affairs.

E.2 Section 33(1)(g): its application in this case

Archives has claimed the exemption in relation to two classes of information. In the first, it has claimed it in relation to information that would identify an ASIO officer.[225] While I am satisfied that disclosure of the information is unreasonable, I am not satisfied that it meets the initial hurdle of being information that relates to “personal affairs”. It is information that relates to their employment as ASIO officers. That is information that is “personal information” as that term is defined in the FOI Act but, on my understanding of News Corporation, it is more difficult to regard it as information that relates to a person’s “personal affairs”. In News Corporation, St John J identified “personal affairs” as “… affairs relating to family and marital relationships, health or ill health, relationships with and emotional ties with real people”. That is consistent with the approach taken by the New South Wales Court of Appeal in Commissioner of Police v Perrin and would exclude information relating to a person’s work or place of employment. Certainly, the cases have made clear that there are no hard and fast rules on this subject. In the case of ASIO officers, the fact of their employment as ASIO officers is protected from publication by s 92 of the ASIO Act, but I do not think that confidentiality can of itself change the essential nature of information. In my view, the information in respect of which the exemption is claimed in respect of folios numbered 73, 74, 75, 77, 82, 88 and 89 is not information relating to personal affairs and is not exempt.
[225] Folios 73, 74, 75, 77, 82 and 88

The exemption under s 33(1)(g) is also claimed in respect of information that takes the form of codes identifying a confidential source of information[226] or information that could be used to identify a confidential source.[227] Again, I am satisfied that disclosure of this information would be unreasonable under the Archives Act but I am not satisfied that it is information that relates to the personal affairs of the confidential sources. Unlike the ASIO officers, presumably being a source of information cannot be described as part of their duties in some type of employment. Equally, though, it cannot be said that the code by which a confidential source of information is identified can be information relating to “personal affairs”. Even taken with the fact that the person identified by the code has been a confidential source of information for ASIO does not bring the information into the description of its being related to the “personal affairs” of any person. It is information that reveals an activity or activities in which they have engaged outside the range of activities that is concerned with their own affairs. It is possible that, in some contexts, information imparted by a confidential source of information could also impart information relating to their own “… family and marital relationships, health or ill health, relationships with and emotional ties with real people”. This is not one of them. Therefore, I am not satisfied that Folios 7, 4, 6, 8, 37, 38, 41, 43, 52, 83, 84, 85 and 86 are exempt under s 33(1)(g) of the Archives Act in so far as they contain codes that could be used to identify a confidential source. I have already found that they are exempt under other provisions.
[226] Folios 7, 4, 6, 8, 37, 38, 41, 43, 52, 83, 84, 85 and 86
[227] Folio 85

That leaves Folio 85. It contains information that could be used to identify a confidential source but the means of identification of a confidential source does not differentiate it from Folios 52, 83, 84 and 86 or from the other passage in 85. Information of this sort does not come within the meaning of “personal affairs” as that term is used in the Archives Act. Folio 85 is not exempt under s 33(1)(g) in so far as it contains information that could be used to identify a confidential source.

DECISION

For the reasons I have given and noting that the effect of my decision is to refuse to give the applicant access to any further records, I:
1.set aside that part of the decision of the respondent dated 29 February 2008 claiming that the folios numbered:
(1)73, 74, 75, 77, 82 and 88 are exempt records under s 33(1)(g) of the Archives Act 1988 in so far as they contain information that would identify an ASIO officer; and
(2) 7, 4, 6, 8, 37, 38, 41, 43, 52, 83, 84, 85 and 86 are exempt records under s 33(1)(g) of the Archives Act 1988 in so far as they contain information identifying a confidential source; and
2.otherwise affirm the decision of the respondent.

I certify that the one hundred and seventy-three paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: ....................................................................
Kate Conners Associate

Date of Hearing 1 June 2010

Date of Decision  16 July 2010
Applicant  No appearance
Counsel for the Respondent  Mr Andrew Berger
Solicitor for the Respondent  Australian Government Solicitor
Ms Louise McConnell

shall cease to be a party to the proceeding

Budd v Secretary, Department of Education, Employment and Workplace Relations [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 Federal Court Rules:
s 44(2A)(b). His Honour also noted at [18] that “Such principles were applied by Gray J in Pham v Commonwealth of Australia [2002] FCA 669, although in the context of s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).”