SSPR and Australian Information Commissioner
[2023] AATA 3098
•19 September 2023
SSPR and Australian Information Commissioner [2023] AATA 3098 (19 September 2023)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2022/8103
Re:SSPR
APPLICANT
AndAustralian Information Commissioner
RESPONDENT
REASONS FOR DECISION
Tribunal:Senior Member C. J. Furnell
Date:19 September 2023
Date of written reasons: 22 September 2023
Place:Melbourne
Pursuant to a decision made on 19 September 2023, the Tribunal decided not to exercise its power under s 37(2) of the Administrative Appeals Tribunal Act 1975 (Cth) so as to require the Respondent to lodge with the Tribunal copies of certain documents. The following are the written reasons for that decision.
..........................[SGD]..............................................
Senior Member C. J. Furnell
Catchwords
PRACTICE AND PROCEDURE – application for Tribunal to require lodgement of certain documents pursuant to s 37(2) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether Tribunal is of opinion that the documents may be relevant to the review of the decision under review – where Applicant submitted the decision-maker relied on or used the documents in making the decision under review – Tribunal not of opinion that the documents may be relevant – application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Privacy Act 1988 (Cth)
Cases
Cash World Gold Buyers Pty Ltd (Taxation) [2017] AATA 736
Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) (formerly EBS & Associates Pty Ltd) [2018] FCA 1140
Dimitropoulos and Australian Securities and Investments Commission [2019] AATA 1775
Esber v Commonwealth of Australia (1992) 174 CLR 430
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYMS and Commissioner of Taxation (Taxation) [2022] AATA 456
Mika Engineering Holdings Pty Ltd and Commissioner for Taxation [2006] AATA 634
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Senior Member C. J. Furnell
22 September 2023
The applicant applied to have the Tribunal exercise a power it has to require a person to lodge copy documents with the Tribunal.
The power arises under s 37(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). That section provides that the Tribunal “may cause” a notice to be given to a person who has made a decision the subject of review by the Tribunal which requires that the person lodge with the Tribunal a copy of a document or documents in the possession of, or under the control of, the person. The power is only exercisable, however, if the Tribunal is of the opinion that the document or documents in question “may be relevant” to the review of the relevant decision.
At an interlocutory hearing conducted on 19 September 2023, I decided to refuse the applicant’s application. I was not satisfied that the documents in question may be relevant. I provided reasons for that decision, orally. The applicant has asked, however, that I provide a written statement of my reasons. I do so now.
Review Application
In 2017, the applicant complained to the Australian Health Practitioner Regulation Agency (AHPRA) about certain conduct of a third party. The third party provided APHRA with a confidential submission in response. The submission is said to have included personal information of the applicant. The applicant asked the third party for access to that personal information.
In requesting that access, the applicant relied on Australian Privacy Principle 12. That principle is set out in Schedule 1 to the Privacy Act 1988 (Cth) (Act). Clause 12.1 of that schedule provides that if “…an APP entity holds personal information about an individual, the entity must, on request by the individual, give the individual access to the information.”[1]
[1] Act, s 15 requires APP entities to “not do an act, or engage in a practice, that breaches an Australian Privacy Principle.”
The third party refused the applicant’s request for the relevant personal information. It did so on the basis that the third party was not an “APP entity” and, hence, not bound to provide that access.
The applicant complained to the respondent about the acts or practices of the third party. The applicant alleges that the third party’s refusal to provide access to the relevant personal information constituted an interference with his privacy.[2] In this regard, an act or practice of an APP entity may be an interference with the privacy of an individual if “…the act or practice breaches an Australian Privacy Principle in relation to personal information about the individual.”[3]
[2] The applicant’s complaints about the respondent went beyond, however, the refusal to provide access. It included the collection of personal information and the use and disclosure of personal information.
[3] Act, s 13(1).
On 30 August 2022, the respondent determined to dismiss the applicant’s complaint, finding that “the acts and practices that are the subject of the complaint are exempt under s 7(1)(ee) and s 7B(1) of the Privacy Act.”
The applicant has applied to the Tribunal for review of that determination.
Documents in Question
The copy documents lodged with the Tribunal in these proceedings under s 37(1) of the AAT Act (T documents) include a report characterised as “Resolve report”.
In that report, 261 documents are identified at pages 673 to 682 of the T documents.
The Applicant requested that the Tribunal exercise its power under s 37(2) of the AAT Act to require the Respondent to lodge with the Tribunal a copy of those of the 261 documents not already included in the T documents.
The applicant submitted that I ought to be satisfied that those 261 documents may be relevant to the Tribunal’s review of the respondent’s August 2022 determination as:
(a)the 261 documents were listed “as relevant to the decision in the Resolve report”;
(b)the respondent “considered them relevant to the decision they were making/made”; and
(c)the 261 documents represented “material relied upon by the decision maker”.[4]
[4] Applicant’s request for s 37(2) order submission at [9]-[10].
Consideration
The applicant’s submissions are, in essence, that the 261 documents were relied on or used by the respondent in making its August 2022 determination.
In support of his submissions, the applicant relies only on the fact that a reference to the documents is included in the Resolve report. That fact alone, however, does not speak to the validity of the applicant’s submissions. In particular, the submissions that the respondent relied upon the documents in arriving at the August 2022 determination and that they were relevant to that determination do not rise above mere speculation, being no more than “… bare and unsupported assertions about the relevance of documents”.[5]
[5] Cash World Gold Buyers Pty Ltd (Taxation) [2017] AATA 736 at [26].
Nevertheless, on the basis of a reference to them being included in the Resolve report, I am prepared to infer that the 261 documents concern the complaint which the applicant made to the respondent or were created in the course of considering that complaint.
The fact that the documents may concern the applicant’s complaint to the respondent or were created in the course of considering that complaint, however, does not support, or represent an adequate basis for forming, an opinion that the documents may be of relevance.
The exercise of the s 37(2) power is conditioned on the formation of such an opinion. Such an opinion “must be supported by a rational process of evaluation, based on reason and reasonable inference, not speculation…”.[6]
[6] Ibid [25].
The mere fact that a document “…bears some correlation with the subject matter of, or evidence or issues in, the review proceedings” does not make it potentially relevant.[7] It “…is not enough that the postulated documents merely have a connection with or pertain to the subject matter of the proceedings”.[8]
[7] Ibid [26].
[8] Dimitropoulos and Australian Securities and Investments Commission [2019] AATA 1775 at [82].
The opinion required of the Tribunal before it may exercise its s 37(2) power needs to be “…based on a rationally articulated connection between the documents sought and the matters required to be determined in the review proceedings.”[9]
[9] Ibid.
This means that the potential relevance of a document is determined by reference to the role of the Tribunal in exercising its review function. In that role, the Tribunal is required to stand in the relevant decision-maker’s shoes to “do over again” that which was done by the decision-maker.[10] In doing so, it performs the same function, exercises the same power,[11] is subject to the same constraints and addresses the same question or questions[12] as the decision-maker.
[10] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].
[11] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529 per Katzmann J at [34] citing Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15]. See also Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], where it is said that the “…merits review function of the AAT is “to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review”. The function of the AAT, in other words, is “to do over again” that which was done by the primary decision-maker.”
[12] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51], where it is said that the “…AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision”.
The role undertaken by the Tribunal in doing over again that which was done by the decision-maker involves a remaking of the relevant decision. It does not entail a review of the processes of the decision-maker or, indeed, an assessment of the findings of the decision-maker.
Hence, the fact that a document concerns the matter the subject of the decision-maker’s consideration or was created in the course of that consideration does not serve to establish its potential relevance.
Indeed, a decision-maker’s reliance on a document in arriving at the decision the subject of Tribunal review (as the applicant submitted was the case in relation to the documents in question) is not determinative of its potential relevance. For example, material that might go to show that a decision-maker failed to act in good faith in making the decision the subject of review is not relevant.[13] Similarly, internal legal advice relied upon by a decision-maker is unlikely to be of relevance.[14]
[13] Mika Engineering Holdings Pty Ltd and Commissioner for Taxation [2006] AATA 634 at [28]-[32].
[14] Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) (formerly EBS & Associates Pty Ltd) [2018] FCA 1140 at [49]; FYMS and Commissioner of Taxation (Taxation) [2022] AATA 456 at [23].
Accordingly, even if (as the applicant submits) the 261 documents informed the respondent in arriving at the August 2022 determination, that does not make them documents that may be relevant:
“The power in s 37(2) is not available simply because the taxpayer suspects documents somehow relate to a decision; nor is it enough that the documents are of interest to the taxpayer because they might reveal a less-than-elegant primary decision-making process… Once a matter comes before the Tribunal for a de novo review on the merits, … the views of the decision-maker himself… are not generally relevant to my function.”[15]
[15] FYMS and Commissioner of Taxation (Taxation) [2022] AATA 456 at [23].
Decision
The documents in question are those of the 261 documents identified in the Resolve report not already included in the T documents.
The Tribunal is not of the opinion that those documents “may be relevant” to the review of the respondent’s August 2022 determination.
Hence, the Tribunal decides to refuse the applicant’s application to have the Tribunal exercise its power under s 37(2) of the AAT Act in relation to those documents.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the written reasons for the decision of Senior Member C. J. Furnell
.........................[SGD]...............................................
Associate
Dated: 22 September 2023
Date of hearing: 19 September 2023 Applicant: Self-represented Counsel for the Respondent: Samuel Walpole Solicitors for the Respondent: The Australian Government Solicitor
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