RMBR and National Disability Insurance Agency
[2021] AATA 3
•8 January 2021
RMBR and National Disability Insurance Agency [2021] AATA 3 (8 January 2021)
Division:GENERAL DIVISION
File Number(s): 2020/5464
Re:RMBR
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:8 January 2021
Place:Sydney
The Tribunal does not have jurisdiction to amend the record of decision by the respondent dated 23 November 2018.
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The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE - JURISDICTION – Freedom of information – application to amend a record made under an enactment – whether Tribunal has the power to amend certain sentences within a decision – no jurisdiction to review decision
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 48, 100
Freedom of Information Act 1982 (Cth) ss 48, 50, 51, 54W, 57A, 58AA
Administrative Appeals Tribunal Act 1975 (Cth) s 42A
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
8 January 2021
BACKGROUND
On 23 November 2018, a delegate of the decision maker for the National Disability Insurance Agency (NDIA) determined under section 48(2) and section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) to refuse the applicant’s request for a plan review for her son. The applicant did not seek review of that decision in the Tribunal in accordance with her review entitlements.
On 14 August 2019, the applicant made a request to the NDIA under section 48 of the Freedom of Information Act 1982 (Cth) (FOI Act) for an amendment of seven sentences in the decision dated 23 November 2018 on the basis that they contain personal information that is incomplete, incorrect, out of date or misleading.
On 19 September 2019, the NDIA made a decision under the FOI Act to not amend the record.
On 16 October 2019, the applicant made an application for an internal review of the decision.
On 15 November 2019, the NDIA made a decision to affirm the decision not to amend the record. The record was annotated with the statement of the applicant.
On 17 January 2020, the Office of the Australian Information Commissioner (OAIC) wrote to the NDIA advising that the applicant had requested review of the internal review decision dated 15 November 2019. On 28 August 2020, the OAIC made a decision not to undertake a review under section 54W of the FOI Act.
On 9 September 2020, the applicant lodged the current application for review by the Administrative Appeals Tribunal (the Tribunal).
ISSUES
The issues before the Tribunal are as follows:
(a)whether the Tribunal has jurisdiction to amend sentences within a record of a decision made by a respondent under the NDIS Act; or
(b)whether the effect of section 58AA(2)(a) of the FOI Act is that the Tribunal does not have the power to amend such sentences.
THE LAW
Under section 48 of the FOI Act, a person can make an application to amend or annotate a personal record in certain circumstances. Relevantly, section 48 states:
Application for amendment or annotation of personal records
Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b) that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the person may apply to the agency or Minister
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister.
In relation to the amendment of records specifically, section 50 of the FOI Act provides:
Amendment of records
(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and
(b) the information is incomplete, incorrect, out of date or misleading; and
(c) the information has been used, is being used or is available for use by the agency or Minister may amend the record of information.
(2) The agency or Minister may make the amendment:
(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i) specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii) in a case where the agency or Minister is satisfied that the information is out of date--setting out such information as is required to bring the information up to date.
(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.
Furthermore, in relation to annotation of records following an unsuccessful application for an amendment of record, section 51 of the FOI Act provides as follows:
Annotations of records etc. following unsuccessful applications for amendments of records
(1) Where an agency or Minister decides not to amend a document or
official documents wholly or partly in accordance with an application under section 48,
the agency or Minister must:
(a) take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c); and
(b) subject to subsection (2), annotate the document or official document concerned by adding to it the statement so provided.
(2) Paragraph (1)(b) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.
(3) For the purposes of this Act, the provision by the applicant of a statement under subsection (1) is taken to be an application made under section 51A on the day the statement is so provided.
Whilst the Tribunal has powers of review over certain decisions as set out in section 57A of the Act, section 58AA relevantly limits the powers of the Tribunal to amend a record as follows:
Powers of Tribunal--limitation on amending records
(1) The Tribunal may, in a decision on an application to the Tribunal under section 57A, make a decision that requires, or that has the effect of requiring, that an amendment be made to a record that relates to a record of an opinion only if the Tribunal is satisfied of either (or both) of the following:
(a) the opinion was based on a mistake of fact;
(b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.
(2) The Tribunal must not, in a decision on an application under section 57A, make a decision that requires, or that has the effect of requiring, that an amendment be made to a record if it is satisfied of either of the following:
(a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person;
(b) the decision whether to amend the record involves the determination of a question that the person seeking amendment of the record is, or has been, entitled to have determined by the agency (on internal review), the Information Commissioner, a court or tribunal.
(3) In this section:
"enactment" includes a Norfolk Island enactment.
DISCUSSION
The applicant’s submissions
Although the applicant agreed with much of the respondent’s submissions, including that section 58AA(2)(a) seeks to prevent the FOI Act being used as a “backdoor method to review decisions of the agency”, the applicant’s view was that the seven sentences to which she takes objection are not a record of a decision. In other words, that individual sentences in a decision can be reviewed in circumstances where they are not the actual decision.
The applicant referred to the guidelines from the Information Commissioner and to the fact that the letter of 23 November 2018 contained various types of information, including the record of a decision, the reasons for a decision, facts in relation to the applicant and her son and statements of opinion on the part of the respondent, which the applicant says were incorrect.
In the applicant’s view, each sentence should be considered to see whether an individual sentence within the document as a whole is in fact part of a record. In her view, the seven sentences in question are not a record of a decision but are rather purported factual statements about what the applicant did or did not do. The applicant said in her written submissions:
The letter dated 23/11/18 contains many mundane sentences recording non-personal information such as my right to apply to the AAT for external review of the decision to refuse to review the plan. The respondent’s contention seems to imply that every sentence in the 23/11/18 letter is a record of decision, but I contend that these mundane sentences are clearly not a record of a decision. Accordingly some method must be applied to consider each sentence in the 23/11/18 letter separately to consider the application of the FOI Act.
The applicant said she was using the FOI Act because the letter was a reaffirmation of a decision to refuse funding of a certain type in her son’s plan in 2018. She is seeking amendment of those sentences in order to be able to apply for Specialist Disability Accommodation (SDA) funding in later years. In her view, an amendment of the seven sentences in question would not have the retrospective effect of altering the 2018 decision of the respondent.
The respondent’s submissions
The respondent argued that section 58AA(2)(a) of the FOI Act limits the Tribunal’s power to amend the record of a decision dated 23 November 2018. In other words, they said that the Tribunal does not have the power to amend a record of a decision made under the NDIA Act.
The respondent said that the purpose of section 58AA(2)(a) of the FOI Act was clear in referring to ‘a record’ as a whole and not parts of a record or information contained within the record. The respondent said that the section would be ineffective if it were possible to pull apart individual sections of a record. If it were possible to change particular sentences in a record, it may either make the record nonsensical or possibly have the effect of changing the decision altogether.
The respondent also noted that it was open to the applicant to seek a review of the decision under the provisions of the NDIA Act, but the applicant did not take up that action. In the respondent’s view, the proper course for the applicant to follow was to seek a review under the relevant sections of the NDIA Act.
DISCUSSION
The applicant in this matter told the Tribunal that the purpose of her seeking the amendments to the record of the decision of the NDIA dated 23 November 2018 was to enable her to apply for funding of the type which was refused in the decision under review, in future years. The applicant provided no explanation as to why she had not sought review under the relevant provisions of the NDIA Act, even though she had an opportunity to do so.
The applicant agreed with the respondent that the provisions of the FOI Act should not be used as a back-door method for review of the decisions of the NDIA. However, it is difficult not to conclude that the practical effect of the applicant’s contentions would be to bring about such a result, even though the applicant argues that in this case it is simply amending some relevant factual matters which may have been relied upon in making the decision rather than changing the decision itself. The problem with this approach is that the ability to understand the rationale for the decision may be completely altered.
It is relevant for the Tribunal to consider the background to the introduction of section 58AA(2)(a) of the FOI Act. The Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia in its report: A Report on the Operation and Administration of the Freedom of Information Legislation (December 1987) relevantly stated at [15.15]:
The Committee is strongly of the view that amendment under Part V should not be available for records of statutory determinations where the only argument for amendment is that the determination is wrong in substance, as opposed to incorrectly recorded. Other avenues of review are generally available for the review of determinations. Where no other avenue is available (either because it never existed or it has become time-barred), it must be assumed that, as a matter of policy, there is to be no review: Part V is not to become a catch-all.
Furthermore, the Explanatory Memorandum to the Freedom of Information Amendment Bill 1991 stated at [72]:
Clause 35(e) also inserts a new sub-section 55(6) to implement a Senate Committee recommendation that guidelines be inserted in the Act to better define the circumstances in which review of agency decisions to refuse to amend or to annotate records will be available. Paragraphs 55(6)(a), (b) and (c) state the instances which the Senate Committee proposed as constraints on any review of decisions relating to correction of records.
The Explanatory Memorandum to the Freedom of Information Amendment (Reform) Bill 2009 stated as follows at [37]:
Proposed section 58AA replicates the effect of existing subsection 55(6) of the FOI Act. (Section 55 is repealed by item 34 of this Schedule.) The provision is related to the right established in Part V of the FOI Act for a person to apply for amendment or annotation of a record of personal information that is incorrect and has been or is being used by an agency for administrative purposes. Provision for similar IC powers are at item 34, proposed new section 55M.
The Tribunal notes further that, in accordance with the requirements of section 51 of the FOI Act, the record of the decision has been annotated by the inclusion of a statement of the applicant in relation to the parts of the record she claims contains information that is incomplete, incorrect or misleading.
In my opinion, the clear intent of section 58AA(2)(a) of the FOI Act is to limit the Tribunal’s jurisdiction so that it does not have the power to amend the entirety of the record nor to amend particular sentences which of themselves constitute part of the record of a decision. If the Tribunal were to have jurisdiction to review individual sentences within a record by characterising those sentences as something else, for example statements of opinion, fact or personal information, then the effect would be to render section 58AA(2)(a) nugatory or ineffective. It would in fact open a second avenue for review of NDIA decisions, where parties were of the opinion that it may be more beneficial for them to do so.
The respondent has met its obligations under section 51 of the FOI Act by making the annotation referred to above, which clearly records the applicant’s intentions but does not disturb the record of decision.
It is quite clear from the provisions of the legislation, especially when coupled with the supporting material, that the provisions of section 58AA(2)(a) of the FOI Act mean that the Tribunal does not have the power to amend the record or any part of the record of the decision of the agency dated 23 November 2018, which the applicant seeks to amend under section 48 of the FOI Act.
CONCLUSION
Accordingly, the Tribunal does not have jurisdiction to amend the record of decision by the respondent dated 23 November 2018 and the application is dismissed under section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.
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Associate
Dated: 8 January 2021
Date of hearing: 11 December 2020 Applicant: In person (by video conference) Solicitors for the Respondent: Ms E Arduca, Australian Government Solicitor
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