Stewart and Secretary, Services Australia (Practice and procedure)
[2025] ARTA 721
•30 May 2025
Stewart and Secretary, Services Australia (Practice and procedure) [2025] ARTA 721 (30 May 2025)
Applicant/s: Mark Stewart
Respondent: Secretary, Services Australia
Tribunal Number: 2024/6432
Tribunal:GM Ross
Place:Canberra
Date:30 May 2025
Decision:Pursuant to s 19(2) of the Administrative Review Tribunal Act 2024 (Cth), and upon application by the Applicant dated 3 December 2024, the Tribunal orders an extension of time for the making of an application for review of the decision of the Respondent to 15 August 2024.
......................[SGD]..................................................
GM Ross
Catchwords
PRACTICE AND PROCEDURE — Administrative Review Tribunal — extensions of time in which to apply for review of decisions — factors relevant to discretion to extend time — explanation of delay — merits of the case — application to extend the period for applying for review of the decision granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Administrative Review Tribunal Act 2024 (Cth) ss 18, 19
Administrative Review Tribunal Rules 2024
Cases
Australian Accredited College Institute Pty Ltd v Australia Skills Quality Authority [2018] AATA 3662
Cassaniti v Federal Commissioner of Taxation [2020] AATA 3447
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 322
Statement of Reasons
BACKGROUND
On 15 August 2024, the Applicant lodged an application for review by the Tribunal of a decision by the Assistant Commissioner, Freedom of Information (Assistant Commissioner) dated 17 June 2024 (Reviewable Decision).
The Reviewable Decision relates to an amendment application made by the Applicant on 20 May 2019 under s 48 of the Freedom of Information Act 1984 (FOI Act). The Respondent implemented the Reviewable Decision and notified the Applicant of the outcome of this implementation on 16 July 2024.
On 17 July 2024, the Applicant wrote to the Office of the Australian Information Commissioner (OAIC) expressing his concern with the Respondent’s implementation of the Reviewable Decision.
On 5 August 2024, the OAIC wrote to the Applicant to confirm that a corrigendum had been made to the Reviewable Decision. At the same time, the OAIC acknowledged the implementation of the Reviewable Decision and confirmed that it did not consider that any further action was required.
On 3 December 2024, the Applicant filed an application seeking an order extending the time in which the Applicant could seek the Tribunal’s review of the Reviewable Decision (the EOT application). The EOT application came before me on 16 April 2025. Due to an unfortunate miscommunication neither I nor the Respondent had received the Applicant’s submissions prior to the hearing. I therefore gave both parties the opportunity to provide further written submissions after the hearing. A further submission was received from the Respondent.
CONSIDERATION
Section 18 of the Administrative Review Tribunals Act 2024 (ART Act) contains the general rule that an application to the Tribunal for review of a decision must be made within the period prescribed by the rules. The Administrative Review Tribunal Rules 2024 prescribes that period as 28 days. Section 19(2) of that ART Act provides an exception to the general rule allowing the Tribunal to extend the period if the Tribunal considers that it is ‘reasonable in all the circumstances to do so’.
Section 19(2) is in similar terms to s 29(7) of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
The relevant considerations under s 29(7) of the AAT Act have been the subject of detailed consideration by the AAT. The case most often cited as settling out the relevant considerations is Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment.[1] I have considered whether to grant an extension of time by reference to those considerations. As such, I have considered:
(a)the explanation for delay
(b)the strength of the Applicant’s case
(c)the significance of the issue to be determined
(d)the potential financial loss
(e)the prejudice to the Respondent or other person affected by the decision, and
(f)whether the Applicant was resting on their rights, and
(g)the length of delay.
[1] (1984) 3 FCR 344.
In relation to factor (a), there are acceptable reasons for the Applicant’s delay. One reason provided for the delay was the attempts taken by the Applicant to have the OAIC clarify the Reviewable Decision and in this regard the Assistant Commissioner issued a corrigendum to the decision (I note that the corrigendum is dated as being issued on 18 July 2023). The Respondent submits the Applicant has incorrectly understood that the relevant review period extended from the date on which the Assistant Commissioner issued the corrigendum on 5 August 2024, and therefore does not consider this to be a reasonable excuse for filing a late application.[2] However, at the hearing the Applicant confirmed that he understood the relevant review period extended from the date of the Reviewable Decision and that the delay was caused by his attempts to have that decision clarified.
[2] Respondent’s Submissions on extension of time application, 4 April 2025.
In relation to factor (b), as to the merits of the application, it is not necessary or appropriate to form conclusions about any of the matters raised.[3] However, it is necessary to assess whether the Applicant’s case has some reasonable prospects of success.[4] To succeed the Applicant needs to demonstrate that the Assistant Commissioner made an error and the extent of that error. Previous Tribunal decisions have stated that the threshold is low in that there must be an arguable case in the sense the case is ‘not frivolous, a futility or bound to fail’.[5] The Applicant submitted at the hearing, that the scope of his amendment request was misunderstood by the Assistant Commissioner. The Respondent initially submitted that the Applicant is seeking review of the implementation of the Reviewable Decision, rather than a merits review of the Reviewable Decision itself.[6] However, at the hearing the Applicant confirmed it is the Reviewable Decision itself as his contentions concern the records to be amended and the method of amendment. Following the hearing, the Respondent submitted that the Applicant’s contention of any purported misapplied scope in the Reviewable Decision is without merit.[7] This is because the Applicant can only make an amendment request in relation to documents he has previously been provided lawful access and not a non-defined list of documents.[8] Further it was submitted, s 48 of the FOI Act does not provide an all-encompassing right to amend or annotate any documents held a Commonwealth agency.
[3] Australian Accredited College Institute Pty Ltd v Australia Skills Quality Authority [2018] AATA 3662 at [40]–[41].
[4] Ibid.
[5] Cassaniti v Federal Commissioner of Taxation [2020] AATA 3447.
[6] Respondent’s Submissions on extension of time application, 4 April 2025.
[7] Respondent’s further submissions on extension of time application at [1.36].
[8] Ibid at [1.32].
In relation to factor (c), consistent with my finding above there does appear to be a significant issue to be determined particularly concerning the scope of the Applicant’s amendment request and the method of amendment.
In relation to factor (d), in his application and at the hearing, the Applicant submitted that there is the potential of financial loss if the extension was not granted. The Applicant considers that the failure to make the corrections as requested could have significant adverse consequences regarding his eligibility for benefits and services.
In relation to factor (e), the Respondent submitted that it remains open to the Applicant to make a new request for amendment under section 48 of the FOI Act at any time.[9] The Respondent further submitted that this approach would be more efficient and cost effective for both parties, as well as the Tribunal.[10] This may well be the case and I note that the Respondent has said it is prepared to consider requests outside of the FOI process.[11]
[9] Ibid.
[10] Ibid.
[11] Respondent’s further submissions on extension of time application at [1.36].
In relation to factor (f), the Applicant has not rested on his rights. He took other action apart from the making of the application to the Tribunal to make the Respondent aware that its decision was being contested.
In relation to factor (g), given the circumstances explained under (a), the delay in making the application is not a lengthy one.
CONCLUSION
In considering these matters it weighs heavily on me that the over-arching purpose of a provision allowing an extension time is to avoid injustice or the prospect of injustice.[12] I consider that the Applicant’s delay is understandable and acceptable. He did not rest on his rights and forestall the making of his application. On the contrary, he took steps to see if the issues he had with the Reviewable Decision could be resolved without needing to make the application. There is no evidence that granting the extension would result in prejudice to the Respondent or the wider community. It is up to the Applicant to decide now whether to make another request for amendment under the FOI Act or pursue his review rights. Finally, I regard that the Applicant has an arguable case for demonstrating error. Therefore, I consider that it is reasonable in all the circumstances that the period for applying to the Tribunal is extended.
[12] Cassaniti v Federal Commissioner of Taxation [2020] AATA 3447.
Date(s) of hearing: 16 April 2025 Applicant: Mark Stewart (Self-represented) Solicitors for the Respondent: Sparke Helmore
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