Re Staats and National Archives of Australia
[2009] AATA 598
•3 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 598
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1559
GENERAL ADMINISTRATIVE DIVISION ) Re STEVEN STAATS Applicant
And
NATIONAL ARCHIVES OF AUSTRALIA
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date3 June 2009
PlaceCanberra
Decision Pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 the Tribunal is satisfied it does not have jurisdiction in this matter and therefore the application is dismissed.
.................[sgd]........................
J.W. Constance, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time – jurisdiction – no provision in Archives Act 1983 for Tribunal review of decision that no relevant record identified – distinction between power of Tribunal and jurisdiction of Tribunal – no jurisdiction – extension of time refused
Archives Act 1983 (Cth) – Sections 43, 44
Administrative Appeals Tribunal Act 1975 (Cth) – Section 25
Re Hempel and Civil Aviation Safety Authority (2006) 90 ALD 118
Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163
REASONS FOR DECISION
3 June 2009 J.W. Constance, Senior Member INTRODUCTION
1. On 9 April 2009 Mr Staats filed an application in the Tribunal seeking a review of a decision by the National Archives of Australia made on 5 June 2008. The decision was in response to a request by Mr Staats to have access to “ASIO records on Giovanni Materano”.The decision 5 June 2008 was in the following terms:
ASIO has thoroughly rechecked all its indexes for any records relating to Giovanni Materano and I confirm that ASIO has again failed to identify any record on the subject.[1]
[1] Copy of decision attached to application for review.
2. As Mr Staats received notice of the decision on 16 June 2008, his application for review was well outside the 60 day period allowed for such applications by section 43 of the Archives Act 1983 (Cth). By an application lodged in the Tribunal on 20 April 2009 Mr Staats sought an extension of time in which to apply to have the decision of National Archives reviewed. This application was made pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides that the Tribunal may extend the time for making an application for review “if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”
3. On 3 June 2009 I dismissed Mr Staat’s application for an extension of time and gave oral reasons for my decision. I have been requested to provide written reasons for my decision and I now do so.
LEGISLATION
Archives Act 1983 (Cth)
4. Section 31 of the Archives Act 1983 (Cth) provides that the Archives must cause certain Commonwealth records (which include records in the care of the Archives or in the custody of a Commonwealth institution) to be made available for public access.
5. Under section 40 of the Act a person may apply to the Archives for access to a record to which section 31 applies. It was not in dispute that Mr Staats made an application in accordance with this section.
6. Subsection 42(1) provides that if a person is dissatisfied with a decision of the Archives in relation to an application for access to records, that person may apply to Archives for an internal review of the decision. Mr Staats was dissatisfied with the decision as to his application for access to the records requested and he sought an internal review. This request gave rise to the decision of 5 June 2008, which is the decision in respect of which Mr Staats has applied to the Tribunal.
7. Subsection 43(1) sets out the circumstances in which an applicant may apply to the Tribunal for a review of a decision of the Archives in respect of access to a record:
Subject to this section, an application may be made to the Administrative Appeals Tribunal for a review of a decision of the Archives in respect of access to a record, being:
(a)a decision refusing to grant to the applicant access to the record on the ground that the record is an exempt record or is a Commonwealth record to which Division 3 does not apply;
(b)a decision refusing to grant an extension of partial access to the record on the ground that the record is an exempt record and it is not practicable to make arrangements for giving the further access desired by the applicant in a form that would not disclose information or matter by reason of which the record is an exempt record;
(c)a decision refusing to grant to the applicant access to the record on the ground that the record has been withheld from public access pending examination of the record under section 35;
(d)a decision refusing to grant to the applicant access to the record on the ground that a determination has been made under section 37 that the record is to be withheld from public access or refusing to grant to the applicant access to the record otherwise than on specified conditions determined under that section;
(e)a decision refusing to grant to the applicant access to the record in a particular form by reason of paragraph 36(4)(a), (b) or (d); or
(f)a decision refusing to allow a further period for making an application under subsection 42(1) for a reconsideration of a decision.
Administrative Appeals Tribunal Act 1975 (Cth)
8. The power of the Tribunal to review decisions is found in section 25 of the Act.
9. Subsection 25(1) provides:
An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
10. Subsection 25(4) provides:
The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
REASONING
11. In considering an application for an extension of time in which to make an application to review a decision it is necessary to consider the prospects of success of the application for review should the extension of time be granted. It is appropriate therefore to consider the jurisdiction of the Tribunal to review the decision in question. To grant an extension of time in relation to a decision in respect of which the Tribunal does not have jurisdiction to review would be a waste of the time and resources of all concerned. I find support for this review in the decision of the Tribunal in Re Hempeland Civil Aviation Safety Authority (2006) 90 ALD 118.
12. It is clear from the wording of section 25 of the Administrative Appeals Tribunal Act 1975 that the Tribunal can only review a decision if it is given the jurisdiction to do so by a specific provision of another enactment. It is essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought. It is very common for an enactment to give the Tribunal the jurisdiction to review some, but not all, decisions made under it.
Archives Act 1983 – s 43(1)
13. The decision which Mr Staats sought to have reviewed is a decision that no record on the subject of his request for access could be identified. When one considers the wording of subsection 43(1) of the Archives Act 1983 it is apparent that each of paragraphs (a) to (e) inclusive of that subsection relates to a decision concerning an identified record. Subsection 43(1)(f) is not relevant to this matter. There is no provision in the Act for review of a decision that no relevant record can be identified. On this basis I was satisfied that the Tribunal does not have jurisdiction to review the decision of the Archives made 5 June 2008.
Further considerations
14. Mr Davidson, Counsel for the Archives, raised further possible grounds on which it could have been argued that the Tribunal has jurisdiction other than pursuant to subsection 43(1). These are:
·the decision of Archives was a deemed refusal under subsection 43(3) of the Archives Act 1983;
·the Tribunal is given jurisdiction by subsection 44(1) of the Act;
·the Tribunal must resolve the question of the existence or non-existence of records in order to determine its jurisdiction.
It should be noted that the Archives did not support these propositions, but properly brought them to the attention of the Tribunal.
15. Subsection 43(3) provides that if an applicant “has not been informed of the result of the [internal] review” requested by the applicant within 14 days of the Archives receiving the request, the Tribunal may review the initial decision. However, this provision does not assist Mr Staats. The letter of 5 June 2008 clearly informed him of the result of the internal review in that it advised that ASIO has rechecked all its indexes and again failed to identify any record.
16. I have considered the decision of the Tribunal in Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163 to which I was referred by Counsel for the Archives. In that matter the Tribunal construed the provisions of the Freedom of Information Act 1982 (Cth) as giving the Tribunal power to review a decision indicating that documents could not be located. However this decision related to provisions worded differently to those in the Archives Act and was based on evidence that indicated that there was a strong possibility that the documents were in the possession of the respondent.
17. Subsection 44(1) provides:
Subject to this section, in proceedings under this Division, the Tribunal has, in addition to any other power, the power to review any decision of the Archives upon an application for access to a record and to decide any matter in relation to that application that, under this Act, could have been or could be decided by the Archives, and any decision of the Tribunal under this section has the same effect as a decision of the Archives.
18. I accept the submission of the Archives that this subsection is a source of power for the Tribunal and is not a source of jurisdiction. The Tribunal can exercise the powers given once proceedings before it are properly instituted and within the jurisdiction given by section 43. If it was intended that the Tribunal have jurisdiction to review any decision of the Archives the provisions of subsection 43(1) would be unnecessary. The Act should not be interpreted so as to lead to such a result.
19. The Tribunal does not need to determine the existence or otherwise of the records in order to determine its jurisdiction. This returns to the question of the decisions which the Tribunal can review. The Tribunal has been given the jurisdiction to review the decisions, and only the decisions, set out in subsection 43(1). They are all decisions relating to identified records. There is no reference to decisions relating to records which cannot be identified and consequently the existence or non-existence of records is not an issue for the Tribunal to consider.
ACKNOWLEDGEMENT
20. I wish to place on record my appreciation of the assistance given to the Tribunal in this matter by the National Archives and its legal representatives, particularly Counsel for the Archives, Mr Davidson. Mr Staats was not legally represented and the Archives has taken great care and effort in fulfilling the obligation to assist the Tribunal placed on it by the Administrative Appeals Tribunal Act 1975.
DECISION
21. For the reasons given I decided that the application by Mr Staats for an extension of time in which to make an application for a review of the decision of the National Archives of Australia made 5 June 2008 should be refused.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: .......................[sgd].........................................................
T. Aviram, AssociateDate of Hearing 3 June 2009
Date of Decision 3 June 2009
Date of Written Reasons 13 August 2009
Applicant self-represented
Counsel for the Respondent Mr J. Davidson
Solicitor for the Respondent Australian Government Solicitor
8
0
0