SSPR and Australian Information Commissioner

This matter concerned an application by the applicant to the Administrative Appeals Tribunal (AAT) for the Tribunal to require the lodgement of certain documents pursuant to section 37(2) of the *Administrative Appeals Tribunal Act 1975* (Cth). The applicant sought these documents in relation to the review of a determination made by the Australian Information Commissioner in August 2022.

The primary legal issue before the Tribunal was whether it was of the opinion that the 261 documents in question "may be relevant" to the review of the Commissioner's decision. The applicant contended that the documents were relevant because they were listed as relevant in a Resolve report, were considered relevant by the decision-maker, and represented material relied upon by the decision-maker.

The Tribunal, constituted by C. J. Furnell SM, reasoned that the applicant's submissions, based solely on their inclusion in the Resolve report, did not rise above mere speculation. The Tribunal emphasised that the exercise of the power under section 37(2) requires an opinion of relevance supported by a rational process of evaluation, not mere speculation or a general connection to the subject matter. The Tribunal noted that its review function is a de novo merits review, requiring it to stand in the shoes of the original decision-maker and address the same questions. The mere fact that documents might have informed the original decision-maker or revealed a less-than-elegant decision-making process was not sufficient to establish relevance for the purpose of section 37(2).

Consequently, the Tribunal formed the opinion that the 261 documents did not "may be relevant" to the review of the Commissioner's determination. The application to have the Tribunal exercise its power under section 37(2) of the *AAT Act* in relation to these documents was therefore refused.