Simmons and Attorney-General's Department
[2001] AATA 333
•24 April 2001
DECISION AND REASONS FOR DECISION [2001] AATA 333
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/1064,
GENERAL ADMINISTRATIVE DIVISION ) Q1999/1076
Re GARY DAVID SIMMONS
Applicant
And ATTORNEY-GENERAL'S DEPARTMENT
RespondentDECISIONS
Tribunal Mr K L Beddoe (Senior Member)
Date24 April 2001
PlaceBrisbane
Decision The Tribunal decides: (a) in Application Q1999/1064 the document sought does not exist or cannot be found; and (b) in Application Q1999/1076 access is to be allowed to the relevant documents.
.
(Sgd) K L Beddoe
Senior Member
Decision No: 333/2001
CATCHWORDS
FREEDOM OF INFORMATION – access - whether document exists
Freedom of Information Act 1982 s 11, 24A
REASONS FOR DECISION
24 April 2001 Mr K L Beddoe (Senior Member)
The First Application (Q1999/1064)
By letter dated 11 May 1999 (T6) the applicant applied to the respondent department for access to:
(a)copies of documents that show what administrative rule or law the Federal Attorney General follows or practices with matters concerning the applicant that allows him, and his department, to ignore specified matters; and
(b)copies of documents or letters held by the Federal Attorney General in respect of "the Executive Order of Authoritative Direction from the Defence Department that is followed with matters concerning me".
The respondent treated the request as an informal request and responded by letter dated 21 May 1999 with a negative response as to the documents and a statement that the fee paid would be refunded (T7).
By letter dated 25 May 1999 the applicant took issue with the response (T8). By letter dated 30 June 1999 (T9) the respondent offered another informal response and enclosed a cheque for refund of the application fee.
The applicant asserts and I accept, that he resubmitted his original request on or about 17 June 1999 but it seems that resubmitted request had not come under notice when the respondent issued the letter of 30 June 1999 and the refund cheque.
By letter dated 18 August 1999 the applicant sought internal review of his application apparently on the basis that there had not been a decision on the application. The applicant enclosed a $40 fee for the internal review. The respondent disputed having received the 17 June 1999 request (T11). The applicant responded by submitting a copy together with evidence of posting 17 June 1999 (T12). The respondent maintained its position that the application had not been received and indicated that the $40 fee would be refunded (T13).
By application dated 17 September 1999 the applicant applied to this Tribunal for review of the "refusal to accept my application as an FOI application". That application is numbered Q1999/1064.
The Second Application (Q1999/1076)
By letter dated 6 May 1999 the applicant applied for access to documents particularised in the letter (T5). That request was acknowledged by the respondent on 18 May 1999 (T6). Although the applicant paid the $30 fee he requested this be waived. That request was eventually acceded to on 9 July 1999 (T7).
In a letter dated 2 July 1999 the applicant sought internal review of the deemed refusal of his application for access to documents (T8). He paid the $40 fee and again requested waiver of the fee. The respondent says that letter was received on 8 July 1999.
On 13 July 1999 (T9) the respondent wrote to the applicant a somewhat surprising letter which included the following:
"I must advise that your request did not become a valid request under the FOI Act until the Manager, Executive Branch, Mr Fish, responded to you on 9 July 1999 in relation to your request for remission of the FOI application fee."
The letter than went on to claim that the applicant was not entitled to an internal review.
The respondent had previously expressly accepted that the applicant had lodged a valid application when it included in its letter of 18 May 1999 (T6) the following:
"Payment of the application fee was received on 11 May 1999 and the statutory period for processing your request will commence from that date."
By letter dated 6 August 1999 the respondent sought consent for an extension of time (T10). The respondent denied the request for access to the documents in a letter dated 13 August 1999 on the basis that the documents "do not exist". The letter then went on to note that the respondent had since (ie after receipt of the application for access) obtained copies of some affidavits particularised in the application (T11). On internal review these documents were released to the applicant (T15).
By application lodged 28 September 1999 the applicant sought review of the decision on internal review. The reasons for seeking review were stated as follows:
"The Attorney-General's FOI decision ignores the contents of my Internal Review Application which is demonstrated by the refusal to accept the fact I hold faxes and letters that prove representation was made on my behalf from 11 August 1997 onwards that proves denial of my Civil Rights and other injustices incurred by me.
The reason for this denial of Rights is that the Federal Attorney General's Department administrates an authority for the Defence Department which doesn't allow investigations conducted for or against me.
Proof of this authority's existence is shown in my original Navy Service file held by me that has a notation on the inside of the front cover – "NOL351/30/1998 dated 12 Sept. '68."
Now this authority is totally illegal because I was under-age when this order was signed as shown by the following:
(A) At the time when this order was signed I was an 18-year-old Navy Clearance Diver who for the past 12 months and still then was a member of the Navy's "Diving Team One".
(B) My mother was still my legal guardian as demonstrated in June, 1970 when she had to sign the consent form for my marriage.
NB As shown by facts (a) and (b) this authority is illegal and can not be administrated. This is why I am exercising my right for the document requested with no authority or security to be applied because the actions were illegal then and still are now."
Section 11 of the Freedom of Information Act 1982 ("The Act") provides for a general right of access, described as a legally enforceable right, to documents of an agency and an official document of a minister, other than an exempt document. Reasons for seeking access, whether express or implied, do not affect the right of access (s 12(2)).
"Documents of an Agency" is relevantly defined in section 4(1) of the Act to mean a document in possession of the agency, whether created in the agency or received in the agency.
"Documents" is given a wide meaning in section 4(1). No issue arises here as to the meaning of the word.
Section 24A of the Act relevantly provides that an agency may refuse a request for access to a document if:
all reasonable steps have been taken to find the document and
the agency is satisfied that the document:
is in the agency's possession but cannot be found; or
does not exist.
At the hearing the applicant conducted his own case and Mrs Barker appeared for the respondent department. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and a former officer of the respondent.
Extensive material was put before the Tribunal about the responses to the applications by the applicant. In particular two affidavits deposed by the respondent's former Freedom of Information Co-ordinator (Mr Van De Brug) (Exhibits A & B) set out in detail the searches undertaken to satisfy the applicant's requests under the Act. The searches undertaken were the likely areas of the Attorney-General's Department, including the ministerial office, and the Australian Government Solicitor's office.
Cross-examination of Mr Van De Brug by the applicant produced some uncertainty about certain documents because of lapse of memory – not because the document had not been disclosed.
The respondent did not recognise the applicant's requests as requests that should have been transferred to another agency. In particular, the respondent did not consider transferring either request to the Defence Department. Mr Van De Brug's explanation was that he was not aware that any such information might be held by the Defence Department. In the circumstances that was not an unreasonable position for the respondent to adopt.
The applicant's evidence is summarised in two affidavits. In application Q1999/1064 Exhibit D is an affidavit by the applicant dated 24 August 2000 which includes the following:
"1. 1 May 1996 was the third year in a row I had submitted zero Tax Returns when still working and would write 'sick of injustice from my Government' across the front of the return.
2. Reply from Taxation Office on 21 May 1996 acknowledges my zero income for the year ending 30 June 1996.
3. Telstra refused to put my name on my telephone account and after twelve (12) months of not paying any accounts, thinking they would take me to Court, they sent a bill on 16 October 1996 that shows 'Telstra holds PPS Reporting Exemption Approval no. RM327671'.
4. After fourteen (14) months on unemployment benefits with no interviews and still working, I decided to fax the details to various people of my three (3) Federal frauds and to highlight the injustices I received from the Federal Government.
5. The Australian Federal Police two-page letter of 6 September 1996 that's stamped 'PROTECTED' top and bottom of the page states I am faxing my documents to various people and agencies challenging the Australian Government to charge me for Tax and Social Security fraud.
6. To further highlight my injustices and demonstrate my 'indifferent treatment', I let my vehicle registration lapse on the 29 April 1997 with the knowledge I would not be charged for driving an unregistered vehicle.
7 Then on 9 July 1997 I drove my unregistered vehicle into a parked car outside Redcliffe Police Station and was only charged for 'Wilful Damage' to the other vehicle owned by Constable Goodall and no costs have ever been awarded against me for this damage.
8. After being charged for 'Wilful Damage', I was allowed to drive away from the Redcliffe Police Station and some time later one of their Sergeants stated my car had nothing to do with them as it had been transferred under Federal authority. I continued driving my unregistered vehicle for the next eighteen (18) months with Police knowledge.
9. I received my cancellation of registration notice on 14 July 1997, dated 7 July 1997, showing my vehicle was deregistered on 5 July 1997 being four (4) days before the accident and not deregistered on 29 April 1997 when payment was due.
10. On 19 January 1998 I lodged two (2) complaints together with three (3) Affidavits with the Australian Federal Police. These being:
(A) That a subpoenaed Hospital file was changed when held by the Brisbane Administrative Appeals Tribunal and also the file had an unsigned/undated Cover Note. Recent Freedom of Information application shows the wrong Hospital had been subpoenaed.
(B) CT Scan Reports of 1996 and 1997 of my throat disproved the Naval and Prince Henry Hospital recorded purpose for this operation which resulted in my inability to write or spell for the next twenty-six (26) years but still able to comprehend what I read.11. These Affidavits lodged with my complaint to the Federal Police state:
(A) I had been involved in several clandestine acts when a Navy Clearance Diver.
(B) I removed the body of the then Prime Minister Harold Holt out to a fishing boat prior to him being reported missing.12. Social Security had me charged with fraud on the 26 July 1998 with the result I was given 200 hours community service.
13. In the Magistrate's Court on 8 January 1999 I was jailed for eight (8) months for failing to do the 200 hours community service. This was due to the fact that I was medically unfit and could not obtain a medical report to support my claim.
14. In court it was stated that if I paid $2000 I would be released on completion of two (2) months, if not, I would have to serve the full eight (8) months. I REFUSED to pay and paper work was changed whereby I only served fifty-eight (58) days.
15. There was not a Medical or Review Board judgment when Centrelink transferred me across to a (civilian) Disability Pension three (3) months after my release from jail. They stated it was due to a Defence related operation to my throat.
16. The Defence Department gave instruction at a Hearing in the Administrative Appeals Tribunal on 13 March 2000 that they did not wish for me to be cross-examined on my Affidavit of 11 November 1999.
17. This Affidavit states: when a Navy Clearance Diver, I was involved in several clandestine acts. My CT Scan disproves the Naval and Hospital recorded purpose for this operation to my throat and a Hospital file was changed when held by the Appeals Tribunal.
18. The Affidavit shows I was underage for this diving period in the Navy by stating: August 1970 was the last time I dived in the Navy being four (4) months before turning 21 years old with my mother as my legal guardian for this diving period.
19. I was discharged from the Navy in 1971 after 6¼ years of a 12-year engagement with the Diving Branch being the only branch I had belonged to in the Navy.
Exhibit E is the applicant's affidavit in application Q1999/1076 which includes the following:
"1. A written request was made to my Federal Member; Teresa Gambaro MP on 11 August 1997 to forward my Affidavit of 11 August 1997 and make representation to the Prime Minister and Attorney General on my behalf that shows denial of my Civil Rights.
2. Faxes both dated 11 August 1997 show they were sent to Derek Fittler of the Attorney General's Department and Frank Leverett of the Prime Minister's Department.
3. 19 September 1997 a request in writing was made to Ms Gambaro MP for reason to be given why no action had been taken.
4. A letter 23 September 1997 from Ms Gambaro MP acknowledges my request and states my issues raised have been taken up with the Office of the Attorney General on 23 September 1997.
5. A further written request to Ms Gambaro MP to forward my new Affidavit of 27 October 1997 together with representation on my behalf to the Prime Minister and Federal Attorney-General showing further denial of my Civil Rights.
6. Fax dated 27 October 1997 shows my Affidavit with Cover Note was sent to Frank Leverett of the Prime Minister's Office.
7. Michael Thawley, Senior Adviser (international) of the Prime Minister's Office, in a letter of 13 November 1997 to Ms Gambaro states his office has discussed my case with the offices of the Attorney General and Minister for Defence, Industry, Science and Personnel.
8. A request again was made to Ms Gambaro MP on 14 January 1998 to forward my latest Affidavits to the Prime Minister and Attorney General for further action.
9. The Prime Minister's Senior Adviser Stephen Brady's letter dated 20 January 1998 to Ms Gambaro's Electorate Office acknowledges my various letters and Affidavits and the difficult and complex issues raised and stated the Prime Minister is unable to involve himself. He then stated he arranged copies to be given to the Office of the Attorney General, the Minister for Defence, Industry, Science and Personnel and the Minister for Veterans (sic) Affairs.
10. A fax sent from Ms Gambaro's office on 29 April 1998 stating no reply has been received from the Attorney-General's Office.
11. Now Derek Fittler states in a letter of 15 July 1998 to Ms Gambaro MP Electorate Office. There is no record of any of the so-called Affidavits, which are mentioned in the letter, ever having been received on behalf of the Attorney-General.
12. On 6 August 1999 all my Affidavits were faxed to the Attorney General's from Ms Gambaro's office with no mention of the above correspondence thus showing these were already sent in 1997.
13. These above-mentioned Affidavits state:
(A) I have been involved in several clandestine acts when a Navy Clearance Diver.
(B) I removed the body of the then Prime Minister Harold Holt out to a fishing boat prior to him being reported missing.
(C) CT Scan Reports of 1996 and 1997 of my throat that disproves the Naval and Prince Henry Hospital recorded purpose for this operation which resulted in my inability to write or spell for the next twenty-six (26) years but still able to comprehend what I read.
(D) The Subpoenaed Hospital file was changed when held by the Appeals Tribunal; also the file had an unsigned/undated Cover Note. Recent Freedom of Information Application shows the wrong hospital had been subpoenaed.
(E) I was not charged for driving an unregistered vehicle after an accident outside Redcliffe Police Station and continue driving unregistered for the next eighteen (18) months with Police knowledge.14. The Defence Department gave instruction at a Hearing in the Administrative Appeals Tribunal on 13 March 2000 that they did not wish for me to be cross-examined on my Affidavit of 11 November 1999.
15. This Affidavit states: when a Navy Clearance Diver I was involved in several clandestine acts, my CT Scan disproves Naval and Hospital recorded purpose for this operation and a subpoenaed Hospital file was changed when held by the Appeals Tribunal.
16. The Affidavit shows I was under-age for this diving period in the Navy by stating: August 1970 was the last time I dived in the Navy being four (4) months before turning twenty-one (21) years old with my mother as my legal guardian for this diving period.
17. Being discharged from the Navy in 1971 after 6¼ years of a 12-year engagement with the diving branch being the only branch I had belonged to in the Navy."
Consideration – Application Q1999/1064
The applicant asserts that the Attorney General has documents relating to the Applicant which affect his legal position as a citizen and former member of the Australian Navy. That assertion is the only material before me that suggests there may be such a document or documents. The rest of the material denies there is any such document.
There is nothing before me which corroborates the applicant's evidence. The allegations made by the applicant include some very serious allegations. If there was a reasonable factual basis for those allegations there would be cause for concern that the applicant had not been granted access to all documents within the terms of his request for access.
I accept that the applicant saw service as an Australian Navy diver and that he was required to have an operation or operations in relation to his neck area including his throat. I also accept for present purposes that there was some lasting effect arising from the operation(s).
As to the applicant's claimed clandestine acts while he was a Navy diver I have no reason to doubt that he may have engaged in clandestine activity but I do not accept that he transferred Prime Minister Holt's body from the ocean to a fishing boat. That assertion is, in my view, fanciful with no basis in fact established before me.
Because I am not satisfied that there is anything before me other than the applicant's evidence, which goes to prove that it is more likely than not that an instrument exists, in the terms asserted by the applicant, I cannot be satisfied that there is a document to which the applicant can be given access. The respondent relies on section 24 A of the Act on the basis that the document cannot be found or it does not exist. I am not satisfied that the instrument, said to exist by the applicant, does in fact exist.
Consideration – Application Q1999/1076
In this matter the applicant sought access to a range of documents the subject matter of which has been described as ministerial representations. The response to the applicant's request was confused but nothing turns on that before this Tribunal.
The applicant has been granted access to all documents held by the respondent and relevant to the request. At least some of the documents appear to have come into the respondent's possession as a consequence of the request for access. Those documents are included in the documents to which the applicant has been granted access.
The respondent has not claimed exemptions or otherwise denied access to documents in its possession or which came into its possession after the request for access.
I am satisfied that the respondent has granted access to all relevant documents in its possession. I am not satisfied that it is more likely than not that the applicant has been denied access to relevant documents.
In application Q1999/1064 the deemed refusal should be substituted with a decision that the document(s) sought does not exist or cannot be found (s 24A of the Act).
In application Q1999/1076 the decision on internal review should be varied so as to grant the applicant access to the relevant documents. In that regard the Tribunal notes that access has already been granted.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 18 September 2001
Date of Decision 24 April 2001
Applicant In Person
For the Respondent Mrs Barker
0
0
0