Secretary, Department of the Prime Minister and Cabinet and Treasurer of the Commonwealth of Australia and Combined Pensioners and Superannuants Association of New South Wales Incorporated (Party Joined)
[2014] AATA 485
•17 July 2014
[2014] AATA 485
DivisionGENERAL ADMINISTRATIVE DIVISION
File Number 2013/4996
Re Secretary, Department of the Prime Minister and Cabinet
APPLICANT
And Treasurer of the Commonwealth of Australia
RESPONDENT
And Combined Pensioners and Superannuants Association of New South Wales Incorporated
PARTY JOINED
DECISION
Tribunal Deputy President S A Forgie
Date 17 July 2014
Place Melbourne
The Tribunal decides that:
(1)it does not have power to reconsider the decision made by a differently constituted Tribunal on 1 November 2013 that:
(a)the Secretary of the Department of Prime Minister and Cabinet is a person whose interests are affected by the decision of the Information Commissioner made on 3 September 2013; and
(b)he is entitled to have made an application for review of that decision on 1 October 2013;
(2)the parties to the proceeding in the Tribunal are:
(a)the Secretary as he made an application to the Tribunal under s 57A for review of the decision of the IC under s 55K: s 60(3)(a);
(b)the CPSA as the person who made the application in respect of which the IC made that decision; s 60(3)(b); and
(c)the Treasurer as the Minister to whom the request was made by the CPSA: s 60(3)(c); and
(3)the question of legal representation of the Secretary of the Department of Prime Minister and Cabinet and the Treasurer remains a matter for them and their legal advisers.
[sgd] S A Forgie
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – FREEDOM OF INFORMATION – direction of differently constituted Tribunal determining parties to the proceeding – whether Tribunal functus officio – whether any basis on which earlier Tribunal made a jurisdictional error so that it had not made a decision at all – Tribunal functus officio
PRACTICE AND PROCEDURE – FREEDOM OF INFORMATION – standing – considered if Tribunal not functus officio – interests “affected by” – applicant is a person whose interests are affected by the decision under review
PRACTICE AND PROCEDURE – FREEDOM OF INFORMATION – parties to the proceeding – identification of parties – difficulties arising from description of agency as “respondent” when its IC reviewable decision not under review and the Information Commissioner is not a party to the review of the IC decision
PRACTICE AND PROCEDURE – FREEDOM OF INFORMATION – legal representation – applicant and respondent having same representative – matter for parties and legal representatives – identification of role of each – interests align – issue of potential conflict should be revisited from time to time
LEGISLATION
Acts Interpretation Act 1901; sections 2C, 33,
Administrative Appeals Tribunal Act 1975; sections 3, 25, 27, 29, 30, 31, 33, 37, 42A, 42B, 42C, 43
Australian Information Commissioner Act 2010; sections 8, 11
Corporations Act 2001
Freedom of Information Act 1982; sections 3, 4, 11A, 26A, 26AA, 27, 27A, 34, 47C, 53A, 53C, 54G, 54J, 54L, 54P, 55A, 55K, 57A, 58, 60, 61, 61A, 93A
Migration Act 1958
Therapeutic Goods Act 1989Federal Court Rules 2011; rule 1.51 and Schedule 1
Administrative Arrangements Order of 12 December 2013
Cabinet Handbook 7th Edition March 2012Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
CASES
Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380
Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71
Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1
Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd [2003] FCAFC 18
Marrickville Council v Minister for the Environment, Sport and Territories [1996] FCA 851
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225
Re Combined Pensioners and Superannuants Association of NSW Inc and Deputy Prime Minister and Treasurer [2013] AICmr 70
Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1
Re McKinnon and Department of Immigration and Citizenship and Serco Australia Pty Ltd [2012] AICmr 34
Re Moorabbin Airport Corporation and Minister for Infrastructure and Regional Development and Others [2014] AATA 101
Re Phillips and Inspector-General in Bankruptcy [2012] AATA 788; (2012) 131 ALD 564; 58 AAR 452
Re Williams and Australian Electoral Commission and The Greens [1995] AATA 160; (1995) 38 ALD 366; 21 AAR 467REASONS FOR DECISION
On 1 October 2013, the Secretary of the Department of the Prime Minister and Cabinet (Secretary) applied for review of a decision made by the Freedom of Information Commissioner (FIC) on 3 September 2013. The FIC, and so the Information Commissioner (IC),[1] had made that decision under Part VII of the Freedom of Information Act 1982 (FOI Act) when reviewing a decision that had been made by the then Deputy Chief of Staff on behalf of the then Deputy Prime Minister and Treasurer, the Hon Wayne Swan (Minister), in response to a request for access by the Combined Pensioners and Superannuants Association of New South Wales Incorporated (CPSA). The CPSA had sought access to:
“… all documents constituting advice by the federal Treasury to Government and Government departments and agencies concerning equity releases as an option to fund private co-contributions as proposed in the Productivity Commission’s draft and final reports Caring for Older Australians.”
One document had been identified as coming within the scope of the request. The decision made on behalf of the Minister was to claim that it was conditionally exempt under s 47C of the FOI Act. In broad terms, s 47C provides that a document is conditionally exempt if its disclosure under the FOI Act would disclose deliberative matter in involved in the functions of, among others, an agency, a Minister or the Government of the Commonwealth. After weighing factors favouring disclosure and non-disclosure, the decision was made to refuse access on the basis that disclosure would be contrary to the public interest. The IC set aside that decision finding that, although the document was conditionally exempt under s 47C, access would not, on balance, be contrary to the public interest.[2]
[1] Part VII of the FOI Act gives the Information Commissioner (IC) power to review certain decisions including those made by an agency on internal review of an access refusal decision. Section 11(1) of the Australian Information Commissioner Act 2010 (AIC Act) gives “freedom of information functions” to the FIC. Among those functions is that of “reviewing decisions under Part VII of the Freedom of Information Act 1982”: AIC Act; s 8(h). When the FIC exercises that power of review, the power is taken to have been exercised by the IC: AIC Act; s 11(5)(b).
[2] Re Combined Pensioners and Superannuants Association of NSW Inc and Deputy Prime Minister and Treasurer [2013] AICmr 70 at [21]-[22]
On receiving the Secretary’s application, the Tribunal’s Registry sent a notice of it to the CPSA as the respondent and requiring it to lodge material under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act). A directions hearing was held by telephone by another member on 28 October 2013. Unfortunately, for reasons outside the control of the CPSA and of the Tribunal, contact could not be made with the CPSA. The member decided to proceed to discuss the proper identification of the parties and that there would be “… clarification later with the …” CPSA. The member decided that the Treasurer of the Commonwealth of Australia (Treasurer) was the person obliged to comply with the obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act). This view was conveyed to Ms Crowe from the CPSA on the same day, 28 October 2013, by a staff member of the Tribunal. The notes written by the staff member show that, in response to her question, Ms Crowe was advised that the Tribunal had not considered whether the Secretary was entitled to apply for review of the IC’s decision. Ms Crowe advised that she wanted to make submissions on that issue. As the CPSA’s original request had been lodged some eighteen months earlier, she requested that the matter be handled expediently.
Later on the same day, 28 October 2013, the Tribunal’s Registry advised the CPSA that the Tribunal had made a preliminary finding that there were three parties to the application and that the CPSA had liberty to apply.
The Tribunal’s file records that, on 28 October 2013, the Registry sent a listing notice to each of the parties. It advised that a directions hearing would be held by telephone on
1 November 2013. The listing notice was sent to the parties by email on the following day, 29 October 2013. The covering email to Mr Davidson read:
“Please find attached a listing notice for a telephone directions hearing at 10AM on Friday 1 November 2013. The Combined Pensioners and Superannuants Association of NSW has been asked to come prepared to discuss any issues that it feels are important. The hearing, therefore, may involve some discussion of substantive issues.
Please contact me if you have any questions.”
The email written to Ms Crowe read:
“Please find attached a listing notice for a telephone directions hearing at 10 AM on Friday 1 November, 2013.
Please contact me if you have any questions.”
Late on 31 October 2013, Mr Davidson wrote to the relevant Registry advising that:
“We have not been put on notice that any particular issue of substance is sought to be raised tomorrow. In those circumstances, and noting the listing is a telephone directions hearing, the applicant will appear by telephone …”.
At the further directions hearing on 1 November 2013, the same member conducted the directions hearing and decided that the Secretary “… has standing to make an application” and identified the Secretary as the applicant, the Treasurer as the respondent and the CPSA as “an Other Party”. The decision was put in the form of a Direction. On 3 December 2013, the Treasurer complied with the obligations under s 37 of the AAT Act.
Discussions ensued among the parties and an agreement was reached that, while the Secretary contends that parts of the documents in issue are exempt under s 34 of the FOI Act, he did not press any claims for exemption over other parts. Those parts were identified and the member made a decision by consent under s 42C of the AAT Act affirming the IC’s decision in so far as it related to those other parts. He did so on 20 December 2013.
In compliance with the Tribunal’s directions, the parties lodged Statements of Facts and Contentions (SF&C). In its SF&C, the CPSA raised the issue of whether the Secretary is a person who is entitled to make an application to the Tribunal for review of the IC’s decision. It set out its arguments for its position that the Secretary is not such a person. That was on 10 March 2014. The solicitor for the Secretary and Treasurer, Mr Justin Davidson, wrote to the Tribunal on 17 March 2014 observing that the issue had already been determined by the Tribunal and should not be reopened. It is apparent from the correspondence received from the CPSA on 2 June 2014 that the CPSA did not share the view that the issue had been determined. It also raised a further issue. That was whether Mr Davidson could represent both the Secretary and the Treasurer.
Mr Davidson opposed my considering the issue of the Secretary’s entitlement to make the application submitting that the Tribunal had already decided it and so was functus officio. I have considered his submission and have come to the view that he is correct. As consideration of his submission effectively requires me to consider whether the Tribunal had made a jurisdictional error in its earlier decision, I have had to consider the submissions made on behalf of the CPSA in relation to the first issue. The interaction between the two pieces of relevant legislation – the FOI Act and the AAT Act – is not always straightforward and the CPSA’s questions need to be explored. After examining that interaction, I have decided that the Secretary is a person entitled to apply to this Tribunal for review of the IC’s decision under s 55K of the FOI Act. I have also decided that the Secretary and the Treasurer may be represented by the same person. In reaching those conclusions, I have come to the conclusion that it is not helpful to classify any of the parties as a “respondent”. That is not a term used in either the AAT Act or the FOI Act and, although in many instances, there is no harm in using it, in the context of a case such as this, its use suggests that the Secretary and the Treasurer must necessarily have different interests or that, as the CPSA submits, the Treasurer is seeking to achieve an outcome through the Secretary’s application that it could not have achieved otherwise. I do not agree that either proposition is necessarily so.
IS THE TRIBUNAL FUNCTUS OFFICIO?
The legal principles
When an Act of Parliament confers a power or imposes a duty, the general proposition is set out in s 33(1) of the Acts Interpretation Act 1901:
“Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.”
When a power or function is conferred, or a duty imposed on, an administrative tribunal, the courts have generally found that, once it has exercised its power, it cannot exercise it a second time. That is to say, the administrative tribunal is functus officio. They reach that conclusion after examining the particular legislative provisions conferring that power and the context in which they are conferred.
Even if a court comes to that conclusion, there is an exception. As the Full Court of the Federal Court said in Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd:[3]
“… What is absolutely clear is that the decision of an administrative tribunal in respect of a ‘jurisdictional fact’ is neither conclusive, nor binding: see Craig v South Australia (1995) 184 CLR 163 at 179; 131 ALR 595 at 602; 39 ALD 193 at 199.”[4]
[3] [2003] FCAFC 18; Ryan, Dowsett and Selway JJ
[4] [2003] FCAFC 18 at [13]
This does not mean that a decision-maker may necessarily remake each administrative decision on that basis. An example of a situation in which a decision-maker could do so was explored by the High Court in Minister of Immigration and Multicultural Affairs v Bhardwaj.[5] It did so in the context of the Migration Act 1958 (Migration Act) and of a decision made by the Immigration Review Tribunal (IRT) on an issue it had previously decided. In making its first decision, the IRT had failed to follow the statutory provisions requiring that Mr Bhardwaj be notified of certain matters and have an opportunity to address them. Gaudron and Gummow JJ said:
“… [A] decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so …”[6]
[5] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615
[6] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615 at [53]; 616; 129-130; 628. McHugh J agreed but with qualifications that are not relevant in this context.
Their Honours said:
“The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a ‘decision on review’ for the purposes of ss 367 and 368 of the Act.
To say that the September decision was not a ‘decision on review’ for the purposes of ss 367 and 368 of the Act is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness. Either of these grounds would entitle Mr Bhardwaj to have the September decision quashed by this Court as an incident of relief by way of mandamus or prohibition under s 75(v) of the Constitution. This notwithstanding, the question whether the Tribunal could disregard its September decision depends on the scheme of Pts 5 and 8 of the Act…. To understand that scheme, it is necessary to say something as to the nature of an administrative decision.”[7]
[7] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615 at [43]-[44]; 612; 127; 625
Their Honours concluded that the scheme of the Migration Act permitted the IRT to ignore its previous decision. Gleeson CJ reached the same conclusion and set out his own reasons. The IRT could not reconsider its own decision simply because it was persuaded that one of the parties had not been given procedural fairness before that decision had been made. What had happened in the circumstances had led to the IRT’s not making a decision at all. As his Honour explained:
“There was an error of the kind described as ‘error in fact’ in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal ‘to stay its hand if it had knowledge, or to re-open its judgment had it the power.’ … The Act, in Pt 5 Div 5, prescribed the procedures according to which the Tribunal was required to conduct its review of the delegate’s decision. If the Tribunal was not prepared to decide in the respondent’s favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The Tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the Tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The Tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its ‘decision’, the Tribunal merely noted the delegate’s decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the Tribunal, in reviewing the delegate's decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the Tribunal recognised that it had not performed its functions and proceeded to do so.
In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate’s decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.”[8]
[8] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615 at [14]-[15]; 605-606; 121; 619
What amounts to a jurisdictional error? This was considered in Minister for Immigration and Multicultural Affairs v Yusuf:[9]
“It is necessary, however, to understand what is meant by ‘jurisdictional error’ under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia,[[10]] if an administrative tribunal (like the [Refugee Review] tribunal):
... falls into error which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. ... Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring the relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law....’”[11]
[9] [2001] HCA 30; (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225
[10] [1995] HCA 58; (1995) 184 CLR 163 at 179; 131 ALR 596 at 602
[11] [2001] HCA 30; (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225 at [82]; 351; 21-22; 245 per McHugh, Gummow and Hayne JJ
In the case of Re Phillips and Inspector-General of Bankruptcy,[12] Dr McCrae, Member, and I summarised the principles to be drawn from the cases in the following way:
“463. If there was no authority to make a decision in the first place, there was no decision and the tribunal can decide the issue again. That is to be distinguished from those situations in which a tribunal might have made a decision and made an error of law in doing so but not a jurisdictional error. A party may appeal to the court on the basis of that error of law but the tribunal cannot revisit the issue and make a further decision. It has exhausted its powers and is said to be ‘functus officio’. Just when a decision-maker has exhausted the decision-making powers will depend upon the statutory provisions under which the decision is made and practical considerations relating to the time at which the decision-maker cannot change his or her mind. Those practical considerations would include the time at which the decision is communicated to the parties to the review. Some were canvassed by the Full Court of the Federal Court recently in Minister for Immigration and Citizenship v SZQOY[[13]]”[14]
[12] [2012] AATA 788; (2012) 131 ALD 564; 58 AAR 452
[13] [2012] FCAFC 131; Buchanan, Logan and Barker JJ
[14] [2012] AATA 788; (2012) 131 ALD 564 at [463]; 693; 584
Is the decision as to standing an administrative decision that I may consider and make again?
There is no question that the decision is an administrative decision. That raises the question of the way in which it was made. Certainly, the “preliminary finding” was made without the CPSA’s having made submissions to the Tribunal. That does not necessarily mean that it did not have a reasonable opportunity to do so but there is no need to explore that for the Tribunal itself had given it a further opportunity to make submissions on 1 November 2013. Ms Crowe made submissions at that hearing and a decision was made by the Tribunal. On behalf of the CPSA, Mr Timmins submitted that the CPSA had only had three days in which to consider the issue of standing and was not well prepared.
What amounts to a reasonable opportunity is not always an easy question to answer. I understand that the CPSA might feel that it was under-prepared for the hearing held on 1 November 2013. It might feel that the reason for the directions hearing was not specified expressly. Given the course of events that I have set out at [1]-[9] above, however, I do not think that there is a basis on which I am satisfied that the Tribunal’s decision on 1 November 2013 was based on jurisdictional error in the form of a denial of procedural fairness. That directions hearing followed the earlier “preliminary decision” on standing and a conversation between an officer of the Tribunal’s Registry and Ms Crowe from the CPSA when she advised that she wanted to make submissions regarding the Secretary’s entitlement to make the application. Certainly, the notes kept by a Registry officer show that Ms Crowe made very brief points but she is recorded as making them and as saying that there was nothing further she wanted to add.
Having regard to the course of events, I am not satisfied that the CPSA did not have a reasonable opportunity to make submissions about the entitlement of the Secretary to make an application. It might have wanted to make its submission differently or to add to it had it had more time but it was aware from the course of communication with the Registry that standing would be a matter discussed at the directions hearing. It did have an opportunity to present its argument. It stated that the Tribunal was being asked to permit an agency, being the Treasurer, to rectify a mistake. The notes do not expand upon the nature of the mistake. There is no indication in the notes that the CPSA asked for a further opportunity to make submissions or to add to those it had made.
That takes me to the legislation to determine whether there is any basis on which I can find that there was an “error in fact” in the sense of a non-fulfilment or non-performance of a condition precedent to the regularity of the process of adjudication in reaching the Tribunal’s decision as to standing. I will look first at the AAT Act and, in particular, ss 25, 27 and 30. Beginning with s 25(1), it 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.”
Section 25(1) is qualified by other provisions of s 25 providing that an enactment may specify such things as the persons whose decisions may be reviewed, the classes of decision that may be reviewed and conditions subject to which applications may be made. They are not relevant for there are no specifications of that sort that are relevant in this case. What is relevant is s 25(4), which provides:
“The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
Section 27 is also relevant for it provides for those who may apply to the Tribunal. Section 27(1) provides:
“Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision.
Note: …”[15]
Sections 27(2) and (3) are concerned with applications made by an organisation or association of persons and when their interests are taken to be affected by a decision.
[15] The note relates to decisions made under Norfolk Island enactments. Section 31 of the AAT Act provides that, subject only to an exception in the Security Appeals Division, the question whether a person’s interests are affected by a decision is for the Tribunal to decide.
The Tribunal has power to determine those whose interests are affected by a decision that it has been given power to review. This follows from s 31(1) of the AAT Act, which applies to all proceedings in the Tribunal other than the Security Appeals Division:[16]
“Where it is necessary for the purposes of this Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.”
[16] A matter under the FOI Act does not come within the Security Appeals Division.
If it were the case that the Tribunal had not been given power to review the IC’s decision at all, it is clear from a reading of ss 25(1) and (4) that it would not have power to review the decision. It would be clear that a person would not be entitled to make an application to it and any finding that a person was a person whose interests were affected by a decision and was entitled to make an application would be one that was infected by jurisdictional error. It would mean that the Tribunal could reopen the issue and decide once more if the person was entitled to make an application and so whether it had power to review the decision. This is not the case here for the Tribunal has been given the power to review the IC’s decision. I set out my reasons for reaching that conclusion below.
Even if it were the case that, on review, the Tribunal could not consider a claim for exemption under s 34 of the FOI Act, there might be an argument put that the Secretary would not have an interest affected by the decision. That would be countered by an argument to the contrary to the effect that lack of success of a particular claim for exemption does not necessarily mean that the person does not have interests affected by the decision. The person may well have interests affected by a decision and be entitled to make an application.[17] As it is, I have decided that s 34 is an exemption that the Tribunal has power to consider. It cannot be used to found an argument that the Tribunal made a jurisdictional error in making its decision to find that the Secretary is a party.
[17] If “… as a matter of law, no legitimate purpose can be achieved by continuing with the proceeding”, the Tribunal may use its powers to dismiss the application as a frivolous or vexatious application under s 42B(1)(a) of the AAT Act. See Re Williams and Australian Electoral Commission and The Greens [1995] AATA 160; (1995) 38 ALD 366; 21 AAR 467 at [37]; 374; 475; Mathews J, President, and Deputy Presidents Beaumont and Hill JJ
In view of these conclusions, I do not consider that I have power to decide whether the Secretary is a person whose interests are affected by the IC’s decision. It is a decision that has already been made on 1 November 2013 by a differently constituted Tribunal.
Despite reaching that conclusion, I have explained why I would have made the same decision as that which was made. Although it is not usual to take that course, this is a matter that has clearly caused confusion and understandably so. The interaction of the AAT Act and the FOI Act is not clear and nor is the identification of the parties. That is particularly so when it is the IC’s decision, substituted for the agency’s decision-maker’s decision, that is the decision under review. Confusion also follows when a proceeding in the Tribunal is thought of in terms of a decision-maker adopting the role of a contradictor to an application rather than as a person assisting the Tribunal. That confusion can be exacerbated by the Tribunal’s practice of identifying the decision-maker as the respondent but, in many cases, its doing so is of no consequence. It became an issue in this case because the decision-maker, being the IC, is not a party to the proceeding at all.
THE SCHEME OF REVIEW
A brief outline of relevant provisions of the AAT Act
I have already outlined the provisions of ss 25 and 27 of the AAT Act at [21]-[22] above. I will repeat only s 27(1):
“Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision.
Note: …”[18]
[18] The note relates to decisions made under Norfolk Island enactments. Section 31 of the AAT Act provides that, subject only to an exception in the Security Appeals Division, the question whether a person’s interests are affected by a decision is for the Tribunal to decide.
The word “person” is not defined in the AAT Act. That means that regard must be had to the Acts Interpretation Act 1901 (AI Act) and, in particular, to s 2C(1). That section provides that “… expressions used to denote persons generally …, include a body … corporate as well as an individual.” The CPSA is incorporated under the Corporations Act 2001, it is a person for the purposes of s 27(1) of the AAT Act.
Once an application for review of a decision has been made to it, the Registrar is required to give written notice of that application “… to the person who made the decision.”[19]
[19] AAT Act; s 29(11)
An application for review of a decision is among the applications and incidental proceedings described as a “proceeding”.[20] Subject only to their being directed that they are not parties:[21]
“… 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).
Note: …”[22]
[20] AAT Act; paragraph (a) of the definition of “proceeding”; s 3(1)
[21] AAT Act; s 42A(2)(b)
[22] AAT Act; s 30(1). The Note relates to Commonwealth and State Attorneys-General being deemed to be parties in certain circumstances.
Section 30(1A), to which s 30(1)(d) refers, provides that, where an application has already been made to the Tribunal, any other person whose interests are affected by the decision, may apply to be made a party to the proceeding. The Tribunal may make that person a party to the proceeding but, whether it does so or not, is a matter within its discretion.
While the AAT Act refers to the person making an application to the Tribunal for review of a decision an “applicant”, it does not refer to any party as a “respondent”. While the practice in the Tribunal has been to refer to the decision-maker whose decision is under review as the “respondent”, the AAT Act does not adopt that description. Instead, it refers to that person as the “decision-maker” throughout the AAT Act. That description is, perhaps, a better description than that of “respondent” for the description of “respondent” is more consistent with adversarial proceedings. It is a description used in, for example, the Federal Court Rules 2011 to mean:
“(a) a party, other than a cross-respondent, against whom relief is claimed, and
(b) a party to an appeal brought by an appellant.”[23]
That is a use of the word that is consistent with the ordinary meaning of “respondent” as “… someone who answers or makes replies. 2 law a defendant, especially in a divorce suit. …”.[24]
[23] Federal Court Rules 2011; Rule 1.51 and Schedule 1-Dictionary
[24] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
The role that a decision-maker takes in a proceeding in the Tribunal is not limited to answering or making replies. A decision-maker’s task is not to defend the particular decision that has been made but, like all parties, to put forward all relevant material to assist the Tribunal to come to the decision that is correct at law and on the evidentiary material and, if there is more than one decision that meets that description, to choose from those decisions that which is to be preferred. Referring to a case in which the decision of the initial decision-maker, the Repatriation Commission, had been reviewed by the Veterans’ Review Board, before being reviewed by the Tribunal, Brennan J said in Bushell v Repatriation Commission:[25]
“… Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. …”[26]
These principles underpin the requirement of s 33(1AA) of the AAT Act that:
“In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.”
[25] (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1
[26] (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1 at 424-425; 43; 4-5
Consistent with its assisting the Tribunal, the decision-maker is required to lodge material required by s 37 of the AAT Act. Section 37(1) provides:
“Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving a notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:
(a)a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b)every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.”
The role of the Tribunal is set out in Part IV of the AAT Act. Putting aside its powers relating to preliminary matters and its powers to dismiss an application, its powers on review of a decision to which an application relates are set out in s 43. Section 43(1) provides:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
A brief outline of relevant provisions of the FOI Act relating to review of decisions
As the decision made on behalf of the Minister was an “access refusal decision”,[27] it is among those decisions in respect of which an application could be made under s 54L of the FOI Act to the IC for its review.[28] There is no question that the CPSA was the person entitled to make that application as it had made the request to which the decision related.[29] For the purposes of the review by the IC (the “IC review” as it is known[30]), the CPSA was the “IC review applicant”.[31] By virtue of s 55A(1)(a), it was a party to the IC review.[32] As the person to whom the request was made, the Minister was also a party to the IC review. That is the effect of s 55A(1)(b). Had there been any “affected third party”, that person would also have been a party under s 55A(1)(c) but there was none.[33]
[27] “[A] decision refusing to give access to a document in accordance with a request” is among those decisions described as an “access refusal decision”: FOI Act; ss 4 and 53A(a).
[28] FOI Act; s 54L(2)(a)
[29] FOI Act; s 54L(3)
[30] FOI Act; ss 4(1) and 54G
[31] FOI Act; ss 4(1) and 54J
[32] FOI Act; s 55A(1)(a)
[33] The IC has certain obligations to notify an “affected third party” under s 54P but those obligations only arise in relation to matters relating to Commonwealth-State relations, business information and personal privacy: FOI Act; ss 54P and 53C. They are not matters that arise in this case.
These are three of the four persons, or classes of person, permitted to be parties to an IC review. Collectively, those four persons or classes of person are known as the “review parties”.[34] The fourth is provided for in s 55A(1)(d) and that is “a party to a proceeding under subsection (3).” Section 55A(3) provides that:
[34] FOI Act; ss 4(1) and 55A
“The Information Commissioner may, by notice in writing, make a person who applies under subsection (2) an IC review party.”
Section 55A(2) provides:
“If an IC review application is made in relation to an IC reviewable decision, a person whose interests are affected by the IC reviewable decision may apply, in writing, to the Information Commissioner to be a review party.”
No such application was made to the IC in this matter.
The decision made by the IC on 3 September 2013 after undertaking an IC review was made under s 55K. Section 57A(1)(a) provides for an application to be made to the Tribunal for review of such a decision. Note 1 to s 57A(1) refers to s 27 of the AAT Act, which provides that an application for the review of a decision may be made by a person whose interests are affected by the decision.
Review by the Tribunal is the subject of Part VIIA of the FOI Act. It sets out the Tribunal’s powers on review and provides that certain procedures are to be followed. Certain modifications are also made to the operation of particular provisions of the FOI Act. The first of the provisions of Part VIIA that is relevant to the identification of the parties to a proceeding in the Tribunal is s 60. Section 60(1) provides:
“This section applies for the purposes of this Part and of the application of the Administrative Appeals Tribunal Act 1975 in relation to proceedings under this Part.”
Section 60(3) then goes on to provide:
“The parties to a proceeding before the Tribunal for a review of a decision are as follows:
(a)the person who applied to the Tribunal for a review of the decision under section 57A;
(b)the person who made the request or application in respect of which the decision was made;
(c)the principal officer of the agency, or the Minister to whom the request or application was made;
(d)any other person who is made a party to the proceeding by the Tribunal under subsection 30(1A) of the Administrative Appeals Tribunal Act 1975.”
Section 30(1A) of the AAT Act provides:
“Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.”
No provision is made for the person whose decision is under review, the IC, to be a party. This is at odds with the usual state of affairs in the Tribunal for s 30(1) of the AAT Act provides that the person who made the decision is a party. As I have described above, the decision-maker has an important role to play in Tribunal proceedings by providing material under s 37 and in assisting the Tribunal as required by s 33(1AA) to reach its decision. In reviewing a decision of the IC under s 55K, however, provisions such as ss 33(1AA) and 37 must be read as referring not to the person who made the decision of which review is sought but to the agency or Minister who made the IC reviewable decision.[35]
[35] FOI Act; s 61A; Items 2, 3 and 4
The effect of that modification of the AAT Act is to place the agency or Minister that made the IC reviewable decision in the position of lodging a statement as required by s 37(1)(a). As it is the IC’s decision and not that of the agency or of the Minister’s, the only practical way it can meet that obligation is to provide a statement of the IC’s reasons on the basis that those reasons constitute “a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision.” It can meet the obligation under s 37(1)(b) more easily for, as modified by Item 3 of s 61A of the FOI Act, it applies to documents in the agency’s or Minister’s possession or control and relevant to the review of the decision by the Tribunal.[36] It does not require lodgement of documents in the IC’s possession and relevant to the review.
[36] The practical consequence of the modifications of the obligations imposed by s 37(1) of the AAT Act is that the Tribunal does not have the advantage of receiving material from the IC that it might have in its possession or under its control and that is relevant to the review by the Tribunal. In Re McKinnon and Department of Immigration and Citizenship and Serco Australia Pty Ltd [2012] AICmr 34, the IC, Professor McMillan did not accept the IC review applicant’s submission that, by analogy with the proceedings in this Tribunal, he should provide copies of documents filed by a party to the other parties. He referred to the different procedures attending the review of an IC reviewable decision from those in the Tribunal and described at [10.78]-[10.97] of the FOI Guidelines he had made under s 93A of the FOI Act. Be that as it may, the outcome is that there can be no assurance that the agency or Minister that made the IC reviewable decision is in possession of all material that the IC has in his possession and that is relevant to the review of the IC’s decision.
As to the powers of the Tribunal on review of a decision relating to a request for access to a document, s 58 of the FOI Act provides:
“(1) Subject to this section, in proceedings under this Part [VIIA], the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
(2)Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
(6)[sic] The powers of the Tribunal under this section extend to matters relating to charges payable under this Act in relation to a request.”
Section 58(2) represents a limitation on the decision-maker’s powers because an agency or Minister has a discretion to grant access to a document that is an exempt document while the Tribunal has none. This is clear from s 11A(4) of the FOI Act when it provides:
“The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
Note:Access may be given to an exempt document apart from under this Act, whether or not in response to a request (see section 3A (objects – information or documents otherwise accessible)).”
There is no suggestion in s 11A(4) that the agency or Minister is limited in the exemptions that may be claimed in refusing a request for access to a document.[37]
DOES THE SECRETARY HAVE STANDING TO APPLY FOR REVIEW?
[37] While the Tribunal’s powers are not referable to those of the IC in making the decision that it must review but to those of the agency or Minister making the IC reviewable decision, I note that ss 55K(2) and 55L of the FOI Act reflect those given by s 58 to the Tribunal.
The submissions
On behalf of the Secretary, Mr Davidson submitted that the Secretary has standing because of his responsibilities for preserving the processes and records of Cabinet. Part 15 of the Administrative Arrangements Order (AAO) made on 12 December 2013, which is consistent with earlier AAOs made by the Governor-General, states that, among the matters dealt with by the Department of State that is The Department of the Prime Minister and Cabinet (PM&C) is “Assistance to the Prime Minister in managing the Cabinet programme”. The role of the Cabinet Secretariat is underlined in the Cabinet Handbook and that role gives the Secretary an interest in the outcome of a request for access to any document that may come within the description of a Cabinet document in s 34 of the FOI Act. It is a much greater interest than that of a person in the street. It does not matter that the Secretary was not a party to the review by the IC.
On behalf of the CPSA, Mr Timmins submitted that the Secretary’s standing must be considered by reference to s 27(1) and, in particular, whether he is a person “… whose interests are affected by the decision” made by the IC. Citing the High Court case of Allan
v Transurban City Link Ltd,[38] Mr Timmins submitted that:“The expression ‘affected by’ and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition on that topic. It is necessary to answer the questions posed … by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’. ‘Standing’ is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies ….
… The starting point, as indicated by several authorities in the Full Court of the Federal Court …, is the construction of the Authority Act with regard to its subject, scope and purpose.”[39]
[38] [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380; Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; Kirby J dissenting
[39] [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [15]-[16]; 174; 384 per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ (citations omitted)
When regard is had to the structure of the FOI Act, it is seen that it is beneficial legislation providing a right of access to documents held by government. The objects stated in s 3 make it clear that Parliament’s intention is to promote representative democracy by increasing scrutiny, discussion, comment and review of government’s activities. Section 3(4) provides that:
“The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.”
Part VIIA of the FOI Act prescribing review in the Tribunal is part of the structure to which regard should be had in identifying whether a person has interests affected by a decision. Section 61 falls within that Part. In so far as it is relevant in this case, s 61(1) provides:
“In proceedings under this Part for review of a decision in relation to a request …:
(a)if an agency or a Minister applied for the review – the agency or Minister has the onus of establishing that the decision is not justified, or that the Tribunal should give a decision adverse to the applicant in relation to the request …; or
(b)if the applicant in relation to the request … applied for the review – the agency to which, or the Minister to whom, the request … was made has the onus of establishing that the decision is justified, or that the Tribunal should give a decision adverse to the applicant.”
Section 61(2) places the onus on the affected third party when the decision under review is a decision to give access to a document in respect of which consultation is required under
ss 26A, 26AA, 27 or 27A. No reference is made to the Secretary, Mr Timmins submitted, when s 53C prescribes the identity of an “affected third party” in relation to those provisions.
When regard is had to the whole of the FOI Act, Mr Timmins submitted, it can be seen that it does not contemplate that an application may be made to the Tribunal by an agency that was not previously involved in dealing with a request or in the proceedings before the IC. The only exception to this would occur if the interest claimed to be affected were “of a high order”. The Secretary’s interests are not of a high order because the history of the matter suggests that the Treasurer did not act as PM&C had recommended. The Secretary’s application to the Tribunal must now be seen as an attempt to remedy an internal administrative failing. Permitting the Secretary to permit PM&C to argue new grounds of exemption is inconsistent with Parliament’s intention that the functions should be performed so as to provide access promptly. It would not deliver administrative justice through a just outcome.
The FOI Act does not give the Secretary any role in the determination of an application by another agency or arising from the decision of the IC on review even if the document may contain Cabinet material. The Secretary’s role and that of the Cabinet Secretariat in his Department do not have any relevance in proceedings in the Tribunal.
General principles relating to identification of a person whose “interests are affected by a decision”
The question of whether a person’s interests are affected by a decision must be asked within a number of contexts. In the context of the AAT Act, it must be asked in that of s 27(1), which reads, in part, that:
“Where this Act or any other enactment … provides that an application may be made to the Tribunal for review of a decision, the application may be made by or on behalf of any person or persons … whose interests are affected by the decision.
…”
It must also be asked in the context of s 30(1A) when deciding whether “any other person whose interests are affected by a decision …”, of which review has been sought, and who has applied to be joined as a party, should be made a party.
In Re Moorabbin Airport Corporation and Minister for Infrastructure and Regional Development and Others,[40] I summarised the principles that can be drawn from the authorities. Some were decided in the context of civil proceedings in the courts when the decision was whether an applicant for joinder was a person “aggrieved” by a decision. The principles are, however, equally applicable in administrative proceedings reviewing decisions by a body, such as the Tribunal.[41]
[40] [2014] AATA 101
[41] [2014] AATA 101 at [97]
No technical rules apply to determine when person’s interests affected
(1)“… The meaning … is not encased in any technical rules; much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public.”[42]
[42] Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (Right to Life) [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357; Lockhart, Beaumont and Gummow JJ at [64]; 65; 251; 370 per Lockhart J
Relevant interests determined by relevant enactment and each decision
(2)The relevant interests must be determined by reference to the terms of the particular decision that has been made and the enactment under which that decision was made:[43]
[43] Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (Alphapharm) (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 260; 383; 80 per Davies J citing US Tobacco at 529
(a)“ The expression ‘affected by’ and cognate terms appear in a range of laws of the Commonwealth. … It is necessary to answer the questions posed … in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’. …
… A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. … The starting point, as indicated by several authorities in the Full Court of the Federal Court …, is the construction of the Authority Act with regard to its subject, scope and purpose. …
… What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself. …”[44]
[44] [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [15]-[17]; 174, 384 per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ
(i)“… In such event, the review, which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute. …”.[45]
[45] (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260; 383; 80
(3)Where more than one decision can be made under an enactment, interests that are relevant in relation to one decision may not be in relation to another. Therefore, what are relevant interests must be determined by reference to each decision and the legislative context in which it is made:
(a)“… The denotation of the phrase ‘whose interests are affected’ … should not be assumed to be the same across this spectrum of decision making. It has a series of distinct operations and, in this sense, is of an ambulatory nature. … it cannot be correct that … the class of persons whose interests are affected by an initial decision is limited to disaffected applicants. Persons whose existing situation under the legislation is changed by operation of the initial decision, which was not sought but was imposed upon them, must be persons whose interests are affected by the initial decision.”[46]
[46] (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 272-273; 396; 91-92
(4)What may amount to relevant interests must be determined afresh in relation to each applicant, whether for review or joinder, in relation to each decision under each enactment:
“… it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to … [a particular] dispute. In each case, the content of the terms ‘affect’ and ‘interest’ are to be seen in the light of the scope and purpose of the particular statute in issue.”[47]
[47] (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 272; 395; 91 per Gummow J
The person’s interests must be more than those of a concerned member of the public
(5)The effect on a person’s rights or interests must be something more than the effect on that person as a member of the public and:
(a)“… involves an assessment of the importance of the concern which an applicant has with respect to the particular subject matter of the decision and the closeness of the applicant’s relationship to that matter …”[48]
[48] Marrickville Council v Minister for the Environment, Sport and Territories [1996] FCA 851 per Kiefel J
(b)“ Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:
“… which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a ‘policy’ or ‘political’ decision and not subject to judicial review.”
(Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 452, per Jacobs J.)’”[49]
[49] Alphapharm (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 260; 383-384; 80-81 per Davies J
(c)“ The applicant’s interest must not be remote, indirect or fanciful. The interest must be above that of an ordinary member of the public and must be above that of a mere intermeddler or busybody. …
Plainly the applicant need not have a legal, financial or proprietary interest in the subject matter of the proceeding. The applicant must establish that he is a person who has a complaint or grievance which he will suffer as a consequence of the decision beyond that of an ordinary member of the public. …”[50]
[50] Right to Life [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357 at [66]; 65; 252; 370 per Lockhart J
(6)A person’s interests are not assessed by reference to the effect of a decision on other persons but by reference to the effect on him or her:
(a)“ If a decision concerns the affairs of one person alone, other persons may not institute or join in the proceedings merely because it would be to their commercial advantage that the person should not receive a benefit or should suffer a disadvantage. …”[51]
[51] Alphapharm (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 261-262; 385; 82 per Davies J
Decision-maker’s obligation to accord procedural fairness relevant
(7)“ The question of standing is, indeed, related to issues of procedural fairness. If a person has interests which ought to be taken into account in the making of a decision, then ordinarily that person should be entitled to be heard. Mason CJ expressed the principle of natural justice in these terms in Kioa v West (1985) 159 CLR 550 at 584:
‘The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according to procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention.
…’”[52]
[52] Alphapharm (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 260; 383; 80
(8)A person who has a right to be heard in the decision-making process leading to the decision under review may be regarded as a person whose interests are affected by it whether or not that person exercised that right to be heard at the earlier time.[53]
[53] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260-261; 384; 81 per Davies J
(9)Where an enactment has not expressly conferred upon a person a right to be heard during the decision-making process or on review, the enactment must be examined to determine whether that right is implicit having regard to its object or objects.
(a)This is illustrated in the case of Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others[54] (Alphapharm), which considered a decision made under the Therapeutic Goods Act 1989:
[54] Alphapharm (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71; Davies, Burchett and Gummow JJ
“ The Act is dominated by public interest concerns. An object is to ensure that drugs which are imported are suitable for use in humans in Australia. Another object is to ensure that drugs which are suitable are registered or listed and become available in Australia for public use as soon as is practicable: see ss 4 and 17 of the Act [Therapeutic Goods Act 1989]. The Regulations specify times within which certain evaluations must be made and certain applications decided and a remedy in the nature of damages is provided for failure to make certain decisions within the specified time. And, as I have pointed out, the Act and the Regulations set up a structure, including the Australian Drug Evaluation Committee, for the carrying out of the necessary inquiries and for the making of skilled judgments as to the suitability or otherwise of a drug.
In this context, it is difficult to see that the Act would recognise the interest which a competitor may have in delaying or hindering the introduction of the drug onto the market. Such an interest is not relevant to the process which the Act establishes or to any decisions made under the Act. Such an interest is indeed in conflict with interests which the Act promotes.”[55]
[55] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 261; 385; 81-82 per Davies J
Decision-maker’s lack of obligation to consult not necessarily definitive
(10)“…[I]t is appropriate briefly to return to the comments of Mason J in Kioa, particularly his reliance on the observations of Jacobs J … [in Salemi v MacKellar (No 2)]. Where, as I think is the case here, a decision which does not attract requirements of procedural fairness is administrative in nature, rather than legislative, it does not follow from those comments, in my view (given the provisions of the ADJR Act, if no other reason) that the decision is not amenable to judicial review. It is by no means inconsistent with a decision that there is no duty to hear persons in relation to a proposed decision to hold also that there are persons ‘aggrieved’ by such a decision who have standing to impugn it, under the ADJR Act, on other grounds. It is therefore necessary to turn to the other grounds on which the applicants rely.”[56]
No requirement that effect on interests be adverse
(11)“… It was submitted that the persons seeking to be joined in these proceedings should not be joined for their interests are not adversely affected by the decision under review. However, interests may be affected by a decision either adversely or beneficially and they may be so affected whether the decision was right or wrong. A person whose interests are affected by a decision is entitled to be joined as a party to proceedings reviewing that decision so as to put forward a view that the decision should not be set aside or changed.”[57]
[56] Botany Bay City Council v Minister for Transport [1996] FCA 1507; (1996) 66 FCR 537; 137 ALR 281; 41 ALD 84 at 556; 299; 100 per Lehane J.
[57] Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1 at 81; 10 per Davies J
Is the Secretary a person whose interests are affected by the IC’s decision under s 55K?
At [37]-[46] above, I set out the scheme of review provided under the FOI Act. I do not quibble with Mr Timmins’ reference to the objects set out in s 3. What I would emphasise though, is that s 3(4) provides that Parliament intends the functions and powers given by the FOI Act to be exercised “as far as possible” to facilitate and promote public access to information promptly and at the lowest reasonable cost. Those words “as far as possible” are important for they are an acknowledgment of the provisions in the FOI Act excluding and limiting access to records. Those exclusions and limitations are recognised in the right of access given by s 11. It is a right given “Subject to this Act” and it is a right to a document of an agency or an official document of a Minister “other than an exempt document”. Broadly speaking, the exemptions represent a number of interests necessary to preserve the operation of government and the privacy and business interests of those who deal with it. Other provisions in the FOI Act balance issues such as the right of access with the impact of compliance upon the operations of those required to process the request while having regard to public interest considerations.
There is nothing in the structure of the FOI Act generally or in the review processes in particular that suggest that a person may only apply to the Tribunal if that person has previously been a participant in the processes that have led to the IC’s decision. Note 1 to
s 57A(1) specifically refers to s 27 and repeats, without qualification, its provision that an application for review may be made by a person whose interests are affected by the decision. That this is so makes sense when it is understood that a person’s interests might not be affected if the decision made by the IC were made to refuse access to a document but might be if the decision were to disclose it. That this may be so is specifically recognised by the identification of parties to a proceeding in the Tribunal under s 60. I have set that out at [41] above. It is clear that, while the person who made the request and the principal officer of the agency or Minister to whom the request was made are both parties, Parliament has allowed for others to be parties even though they would clearly not have been parties to the original request. If it were not so, there would have been no need to specify as a party the person who applies for review of the decision under s 57A or those who are made parties under s 30(1A) of the AAT Act.
There is nothing in the FOI Act that suggests that the Tribunal may not consider a ground of exemption different from the ground claimed in the initial decision or considered by the IC. In giving the Tribunal its powers on review, s 58 does not limit its powers to a consideration of those grounds of exemption previously claimed or considered. On the contrary, s 58(1) gives the Tribunal the power to decide any matter in relation to the request that, under the FOI Act, could have been decided by an agency or Minister. That must be read as giving the Tribunal the authority to look at all of the exemptions that may be claimed.
It follows that I consider that a claim for exemption under s 34 of the FOI Act can be considered by the Tribunal on review of the IC’s decision. That is relevant in considering whether the Secretary has interests affected by the decision. Looking at the 7th Edition of the Cabinet Handbook, to which Mr Davidson, referred, I note that it is signed by the then Prime Minister, the Hon Julia Gillard MP and the then Attorney-General, the Hon Mark Dreyfus QC MP. Its foreword contains the following two paragraphs:
“The 7th Edition of the Cabinet Handbook reflects the discretion the Prime Minister has to organise the management of the Cabinet. The Handbook outlines the underlying principles of Cabinet government and general expectations for Cabinet businesses and meetings, with detailed arrangements included in Annexes. The Handbook should be used as a resource for all ministers, ministerial staff and public officials involved in the development and progression of Cabinet business.
A well-functioning Cabinet system requires high-quality Cabinet documents, their timely circulation and appropriate levels of security. We ask that ministers and officials take particular care with the quality of submissions and memorandums brought forward to the Cabinet and its committees. We also ask that the agreed timelines for the lodgement of Cabinet documents are met. Effective Cabinet confidentiality requires strict observance of the security requirements for Cabinet documents.”
A group known as the Cabinet Secretariat is located within PM&C. Its role is described in the Cabinet Handbook:
“34. The Cabinet Secretariat is a part of the government that provides continuity and impartial support for operations at the centre of government. It operates within the Department of the Prime Minister and Cabinet (PM&C) and is staffed and managed by officers of PM&C. The Cabinet Secretariat exists to support the Prime Minister, the Cabinet Secretary and the chairs of Cabinet committees in ensuring that government business is conducted in an effective and timely way and that proper collective consideration takes place.”
The CPSA also drew my attention to role of the Cabinet Secretariat described at [2]-[6] of Annex A and, in particular to [5]:
“The Cabinet Secretariat is also responsible for the management of the records of successive Cabinets. It maintains the registry of Cabinet documents for the current Government and preserves the Cabinet records of previous governments …”
The Secretary’s claim that he is a person whose interests are affected by the IC’s decision is based on his view that the exemption under s 34 applies to the document requested by the CPSA. Whether his view prevails is a matter for the substantive hearing but, if it is so, he must be a person whose interest are affected by the IC’s decision. The Cabinet Handbook and the AAO both show that, at the Departmental level, he has ultimate administrative responsibility for “… ensuring the confidentiality of Cabinet proceedings and the impartial and effective operation of the Cabinet system.”[58] The description of the document given in the IC’s decision reads, in part:
“In its reasons for decision, the Office said – and I accept – that the document was prepared for the purpose of briefing a small group of Ministers about the proposed scheme, presumably during the finalisation of the Government’s response to the Productivity Commission’s report.”[59]
[58] Cabinet Handbook; Annex A at [2]
[59] Re Combined Pensioners and Superannuants Association of NSW Inc and Deputy Prime Minister and Treasurer [2013] AICmr 70 at [10]
Whether the document was brought into existence for the dominant purpose of briefing a Minister on a document which fulfils the criteria in s 34(1)(a) is not something on which I can form an opinion or should attempt to do so. What the IC’s description of the document does is to open the door to a claim for exemption under s 34(1)(c) or, if it is a draft of a document, s 34(1)(d). The two criteria that would have to be met in either case are that the briefing was on a document that had itself been submitted to Cabinet for its consideration (or is or was proposed by a Minister to be so submitted) and that document was brought into existence for the dominant purpose of submission for consideration by the Cabinet. Once that door has been opened, the Secretary is a person whose interests are affected by the decision under review. Therefore, I find that he is a person who may make an application under s 27 of the AAT Act for review of the IC’s decision.
WHO ARE THE PARTIES TO THE REVIEW?
As I have found that the Secretary has standing to make the application, it follows that the parties to the application for review of the decision made by the IC under s 55K of the FOI Act are, by virtue of s 60:
(1)the Secretary as he made an application to the Tribunal under s 57A for review of the decision of the IC under s 55K: s 60(3)(a);
(2)the CPSA as the person who made the application in respect of which the IC made that decision;[60] s 60(3)(b);
(3)the Treasurer as the Minister to whom the request was made by the CPSA:
s 60(3)(c).
Had an order been made under s 30(1A) of the AAT Act making another person a party to the proceeding, that person would also have been a party: s 60(3)(d).
[60] The application was the CPSA’s application under s 54L(2)(a) seeking review of the Minister’s access refusal decision i.e. his decision refusing access to the document he had identified as coming within the CPSA’s request.
When it is realised that none of the three parties made the decision that is under review and none of the three parties necessarily possesses copies of the evidentiary material in the possession of the IC, it seems inappropriate to identify any one of them as a “respondent”. Certainly, the Treasurer has responsibilities to comply with s 37 of the AAT Act as the Minister who made the IC reviewable decision but, for the reasons I have given, he may not be in possession of all relevant material. He is not in a position to respond to a case. Rather, his duty is to assist the Tribunal to reach the correct or preferable decision.
MAY THE SAME PERSON REPRESENT BOTH THE SECRETARY AND THE TREASURER?
The question that I have posed is an ethical question for resolution by Mr Davidson and the Australian Government Solicitor. Despite that, I will make a general comment. Once the substantive roles of the parties have been understood, it can be seen that the Treasurer and the Secretary are not protagonists but, like the CPSA, are engaged in a process of assisting the Tribunal to reach its decision on review. In the circumstances of this particular application, there is no apparent basis on which their interests would seem to diverge. That may not be the case in other matters and it may be that it does not continue to be so in this. If their interests do change, that will be a matter for them to consider different representation.
DECISION
For the reasons I have given, I formally decide:
(1)I do not have power to reconsider the decision made by a differently constituted Tribunal on 1 November 2013 that:
(a)the Secretary of the Department of Prime Minister and Cabinet is a person whose interests are affected by the decision of the Information Commissioner made on 3 September 2013; and
(b)he is entitled to have made an application for review of that decision on 1 October 2013;
(2)the parties to the proceeding in the Tribunal are:
(a)the Secretary as he made an application to the Tribunal under s 57A for review of the decision of the IC under s 55K: s 60(3)(a);
(b)the CPSA as the person who made the application in respect of which the IC made that decision; s 60(3)(b); and
(c)the Treasurer as the Minister to whom the request was made by the CPSA: s 60(3)(c); and
(3)the question of legal representation of the Secretary of the Department of Prime Minister and Cabinet and the Treasurer remains a matter for them and their legal advisers.
I certify that the sixty six preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ……[sgd]...........................................................
Associate
Date of Hearing 11 July 2014
Date of Last Submission 10 July 2014
Date of Decision 17 July 2014
Solicitor for the Applicant Mr J Davidson
Australian Government Solicitor
Solicitor for the Respondent Mr J Davidson
Australian Government Solicitor
Self-represented Joined Party Ms C Crowe, Mr P Timmins, Mr P Versteege
Combined Pensioners and Superannuants Association of NSW Incorporated
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