STAATS and NATIONAL ARCHIVES OF AUSTRALIA

[2010] AATA 257

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 257

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1559
  )               2009/1568

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEVEN STAATS

Applicant

And NATIONAL ARCHIVES OF AUSTRALIA

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date13 April 2010

PlaceCanberra

Decision The application for reinstatement of these applications is refused.

....................[sgd]....................

Mr S. Webb, Member

CATCHWORDS

PRACTICE & PROCEDURE - application for reinstatement - decisions not reviewable – discretion to reinstate conditioned by error – discretion not exercised - applications not reinstated

Archives Act 1983 ss 2A, 24, 39, 40, 42, 43, 44

Administrative Appeals Tribunal Act 1975 ss 29, 42A, 42D

Re Staats and National Archives of Australia (2009) 50 AAR 147

Re White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 46 AAR 208

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Re McKnight and Australian Archives (1992) 28 ALD 95

REASONS FOR DECISION

13 April 2010 Mr S. Webb, Member         

1.      Steven Staats has several applications before the Tribunal in various registries. These two applications arise from Mr Staats’ requests to the National Archive of Australia (‘the Archive’) under the Archives Act 1983 (‘the Archives Act’).

2.      

Application number 2009/1559 relates to his request for records purportedly created by the Australian Security Intelligence Organisation (‘ASIO’) concerning ‘Giovanni Materano’. On 5 June 2008 the Archive issued an internal reconsideration decision under section 42 of the Archives Act affirming a primary decision that no such records could be found.[1] It appears that Mr Staats received this decision on

16 June 2008. He filed an application for review of this decision by the Tribunal on

9 April 2009, well outside the statutory 60 day period allowed for such applications.[2] An application for an extension of time was lodged on 20 April 2009. The Tribunal listed a hearing to decide the application for an extension of time. The application was heard and decided on 3 June 2009. The decision has two parts: the substantive application was dismissed for want of jurisdiction pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) and the application for an extension of time was not granted pursuant to subsection 29(7) of the AAT Act.[3]

[1] A copy of the decision is attached to the application.

[2] Subsection 43(4), Archives Act 1983.

[3] Re Steven Staats and National Archives of Australia [2009] AATA 598, (2009) 50 AAR 147.

3.      

Application number 2009/1568 concerns Mr Staats’ request for records purportedly created by ASIO concerning his employment as a consultant by the Social Welfare Commission in the 1970s. The Archive decided that no such records could be found. On 20 April 2009 Mr Staats filed an application for review. On 5 May 2009 the Tribunal decided that it had no jurisdiction as the primary decision had not been the subject of internal reconsideration;[4] the matter was remitted to the Archive pursuant to subsection 42D(1) of the AAT Act. On 25 May 2009 the Archive issued a reconsideration decision affirming the primary decision, and filed a copy in the Tribunal on 16 July 2009. On 17 August 2009 the Tribunal wrote to Mr Staats inviting him to show that the Tribunal had power to review the decision that was the subject of his application. Mr Staats did not reply. On 10 September 2009 the Tribunal decided to dismiss the application pursuant to subsection 42A(4) of the AAT Act.

On 28 September 2009 Mr Staats wrote to the Tribunal stating that he had been confined in the Macquarie Hospital in North Ryde in the period from 25 July 2009 to 17 September 2009 and requesting that all his applications in the Canberra registry of the Tribunal be transferred to the Melbourne registry. On 1 October 2009 the Tribunal wrote to Mr Staats, informing him that his application had been dismissed for want of jurisdiction.

[4] Subsection 43(2), Archives Act 1983.

4.      

On 9 November 2009 Mr Staats filed a letter in the Tribunal in which he requested reinstatement of a number of applications, including application number 2009/1559. In that letter he referred to application number 2009/1568 but he did not explicitly requested reinstatement of that application. Nevertheless, in fairness to

Mr Staats, his request for reinstatement was taken to include application 2009/1568.

5.      

Officers of the Tribunal made many attempts to contact Mr Staats in order to progress his requests. Ultimately, on 12 December 2009 the Tribunal listed a directions hearing for 22 December 2009 and sent a listing notice to Mr Staats at his last notified address. Mr Staats failed to appear. I did not dismiss the matters at that time because it appeared to me that Mr Staats had not been given sufficient notice of the listed hearing. For this reason I directed that a further hearing be listed, providing Mr Staats with more notice. On 10 January 2010 the Tribunal wrote to Mr Staats to ascertain his availability to attend a hearing. On 25 January 2010 Mr Staats informed the Tribunal that he was in Queensland and requested that his matters be placed in abeyance until his return. On 28 January Mr Staats wrote to the Tribunal requesting that his reinstatement applications be listed in approximately three weeks from that date in Canberra, noting that he would attend in person. On 5 February 2010 the Tribunal listed a hearing on 12 March 2010 and sent Mr Staats a listing notice.

This was confirmed by email on 8 February 2010. On 12 February 2010 Mr Staats telephoned the Tribunal and advised that he would attend the hearing in person;

he again telephoned on 17 February 2010 and confirmed his attendance.

On 19 February 2010 Mr Staats telephoned the Tribunal and asked whether

he could attend at 9am on the day of the hearing in order to inspect documents;

he agreed to send relevant documents concerning his ‘incarceration’ to the Tribunal by post.[5] On 23 February 2010 Mr Staats telephoned the Tribunal and asked if he could attend the hearing by telephone; he expressed concern that he may be incarcerated again. The Tribunal officer asked him to put his request in writing.

Mr Staats did so on 26 February 2010. On 1 March 2010 the Tribunal wrote to inform Mr Staats that his request had been approved. Mr Staats responded by email on the same day and confirmed that he would be available by telephone. Further communications with Mr Staats were received by email on 2 and 9 March 2010.

On 11 March 2010 Mr Staats telephoned the Tribunal and stated that he would not be available for the hearing as his mobile telephone had been stolen and he did not have access to any other telephone.

[5] Applicant submissions filed on 24 February 2010.

6.      

The hearing proceeded on 12 March 2010. Mr Staats failed to appear; repeated efforts were made to contact him by telephone without success. I decided that the hearing would proceed in Mr Staats’ absence and heard oral submissions by the Archive. I ordered that I would allow Mr Staats 14 days in which to make any written submissions, giving the Archive a further seven days in which to make any written submissions in response. Copies of these orders were sent and emailed to Mr Staats on 12 March 2010. Mr Staats advised the Tribunal by email on 13 March 2010 that he had received the orders made by the Tribunal on 12 March 2010.

No further communications have been received from Mr Staats.

7.      I will proceed to decide these applications in his absence.

8.      Mr Staats submitted in his application for reinstatement that he had been denied fairness and had not been heard in relation to the dismissal of both applications. He says that he was incarcerated against his will in the Macquarie Hospital in Sydney at the time. On that basis he asserts that the applications should be reinstated.

9.      I do not agree.

10. There is no provision of the AAT Act that permits the reconsideration of a decision not to extend the time in which an application can be made. Thus, the only avenue open to Mr Staats in relation to the extension of time application in relation to application number 2009/1559 is an appeal to the Federal Court of Australia.

11.     

With regard to the dismissal decisions that were made under

subsection 42A(4) of the AAT Act, there is discretion to reinstate an application if the application was dismissed in error.

12. As can be seen from subsection 42A(10), the discretion is preconditioned by the existence of error. There are two steps: first error must be established and, second, there must be grounds that render it appropriate in the circumstances to exercise the discretion.[6] Thus, even if error is found to exist, and error has a broad meaning,[7] it does not follow that the application must be reinstated.

[6] Re White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 46 AAR 208.

[7] Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383 at [28].

13.     

In these cases it is conceivable that Mr Staats was incarcerated as he asserts, but there is no independent evidence to substantiate his assertion. Even if I accept that what he has said is true, and he was incarcerated against his will, by inference on medical grounds, it does not follow that any error has occurred.

Subsection 42A(4) of the AAT Act confers on the Tribunal discretion to dismiss an application if an applicant is unable to show within a prescribed time after being notified in writing that a decision may not be reviewable, that the decision is reviewable. Thus, there is an onus on an applicant following proper notification.

Mr Staats did not demonstrate that either decision is reviewable by the Tribunal.

In those circumstances subsection 42A(4) of the AAT Act may apply and dismissal may follow subject to the issuing of proper notice.

14.     

Notices were sent to Mr Staats by the Tribunal pursuant to subsection 42A(4), but it is not clear to me, however, that Mr Staats received the notices he was sent. If he was incarcerated as he asserts it is likely that he did not receive the notices sent to his address by the Tribunal. This is a grey area and I am prepared to give

Mr Staats the benefit of any uncertainty.

15. Proceeding on the basis that Mr Staats was not properly notified of the issues about jurisdiction, I am prepared to accept that his applications were dismissed in error. Thus the discretion conferred by subsection 42A(10) of the AAT Act is enlivened. It does not follow, however, that reinstatement is an automatic result. Having regard to all the relevant circumstances and factors, one must first decide whether there are grounds that render it desirable and appropriate to exercise the discretion; it is necessary to consider issues of fairness, prejudice and merit.

16.     

Plainly enough, if these applications are not reinstated, Mr Staats may complain that he has been denied an opportunity to present his case and have it properly assessed and decided by the Tribunal. The issue of fairness, however, requires consideration of relativities: fairness between the parties as well as fairness between Mr Staats and others in a like position. While it may be unfair to deny

Mr Staats an opportunity to present his case, it may also be unfair to require the respondent to participate in proceedings that are futile; additionally, reinstating applications that are futile may be unfair to others who have been denied a hearing on the basis that the Tribunal lacks jurisdiction.

17.     It must be noted, too, that Mr Staats failed to appear at the reinstatement hearing and he has not provided any explanation whatsoever. It is difficult to provide Mr Staats with an opportunity to present his case when he fails to appear. That said, I will do what I can to ensure that the case for reinstatement is properly and thoroughly tested and assessed.

18.     With regard to issues of prejudice that arise. It can be accepted that the delay in these proceedings may cause some prejudice to the respondent: the longer a matter remains on foot, unresolved and without certainty of closure, the greater the cost in terms of money, resources and time for the respondent and the greater the presumption of prejudice. Where there is delay the whole quality of justice deteriorates.[8] Nevertheless, the character of the particular applications, concerning access to archive records, is not such that the quality of evidence is likely to deteriorate with the effluxion of time, save only in relation to any determination concerning the disposal or destruction of records pursuant to section 24 of the Archive Act. The prospective merit of the applications must be assessed, however.

[8]  Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541at 551-552.

19.      

As it appears to me the applications have little or no prospect of success.

It appears that no records matching Mr Staats requests have been identified by ASIO and the Archive despite a number of searches being conducted. There is no evidence that such records exist. Insofar as other records may exist in the holdings of agencies other than ASIO, it is open for Mr Staats to make further requests for access. Such information has been provided to him by the Archive.

20.     

I note that the Tribunal’s dismissal of application number 2009/1559 was based in part on a finding that the Tribunal has no jurisdiction in relation to an application for access to records where no records are found.[9] I note, however, that the Tribunal took a different approach in Re McKnight and Australian Archives.[10]

In that case the Tribunal’s jurisdiction was enlivened in relation to documents that had been identified and access decided. The proposition that the statutory right to access to certain documents under the Archive Act should not be frustrated by a failure to identify relevant documents without recourse to review has some force.

The objects of the Archive Act include preserving and making publicly available the archival resources of the Commonwealth and imposing record‑keeping obligations in respect of Commonwealth records.[11] Within this frame, sections 39, 40, 42, 43 and 44 may be read to provide jurisdiction and power to the Tribunal to review an internal reconsideration decision for access to certain records. Certainly, Mr Staats was informed that he could apply to the Tribunal for review of the decisions provided to him. For present purposes, however, it is not necessary for me to decide this point.

[9] Re Steven Staats and National Archives of Australia [2009] AATA 598, (2009) 50 AAR 147 at [13]-[19]; Respondent submissions dated 26 May 2009.

[10] (1992) 28 ALD 95 at 114 (referring to 109).

[11] Section 2A, Archives Act 1983.

21.     Thus, in sum, even though it can be accepted that Mr Staats did not rest on his rights and there is no significant prejudice to the Archive, the absence of merit is a powerful factor that weighs heavily against exercise of the discretion to reinstate these applications. It may be said that Mr Staats did not have the opportunity to present his case concerning the jurisdiction questions raised in this case prior to dismissing his applications, and to some extent that may result in unfairness to him. Mr Staats was provided with that opportunity in the hearing of his request for reinstatement, but he failed to appear. In order to ensure fairness to him, I did not dismiss his requests forthwith and allowed a further period in which he could make any written submissions. He failed to do so. I have considered all the aspects of his case in relation to both applications in these proceedings and I am reasonably satisfied that there are no sufficient grounds that render it appropriate or desirable to reinstate the applications.

22.     Thus, for these reasons and having had regard to all of the matters that I must address, especially in order to ensure fairness to Mr Staats in his absence, there are no reasonable grounds to support reinstatement of his application. It follows, therefore, that Mr Staats’ applications for reinstatement of these applications must be rejected.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

Signed:  ..........................................................................................
  J. Lakin, Associate

Date of Hearing  12 March 2010
Date of Decision  13 April 2010

Solicitors for the Respondent       Australian Government Solicitor