Straczek and Director-General, National Archives of Australia

[2024] AATA 3214

Straczek and Director-General, National Archives of Australia [2024] AATA 3214 (25 March 2024)

Division:                  FREEDOM OF INFORMATION DIVISION

File Number(s):      2023/3111

Re:  Josef Straczek

APPLICANT

And  Director-General, National Archives of Australia

RESPONDENT

DECISION

Tribunal:                  Deputy President Britten-Jones

Date:  25 March 2024

Place:  Melbourne

The application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975

(Cth).

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

Deputy President Britten-Jones

Catchwords

PRACTICE AND PROCEDURE – freedom of information – access refusal deemed decision

-- application for review of deemed decision subsequent access refusal decision made by decision-maker – no jurisdiction found – application dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Archives Act 1983 (Cth)

REASONS FOR DECISION

Deputy President Britten-Jones

1.The applicant applied on 12 October 2022 to the Tribunal for review of a decision with respect to an unsuccessful application for access under s 40(1) of the Archives Act 1983 (Cth) (the Archives Act).

2.The respondent seeks to dismiss the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the basis that the decision sought to be reviewed is not reviewable by the Tribunal.

Background Facts

3.On 2 August 2021, the National Archives of Australia received an application from the applicant for access to a record (the Record) under s 40 (1) of the Archives Act.1

1 Respondent Bundle of Relevant Correspondence, 25 January 2024 (‘Bundle’), 1.

4.The National Archives of Australia failed to make a decision as required within 90 days and consequently a decision refusing access was deemed to have been made on 7 December 2021 under s 40(8) of the Archives Act (the first deemed access refusal decision).

5.The applicant applied to the Tribunal for review of the first deemed access refusal decision on 12 October 2022. This application was out of time and on 12 February 2023 the applicant applied for an extension of time within which to make the application. On 26 April 2023, the Tribunal purported to extend time for the making of the application.

6.In the meantime, on 29 March 2023, the respondent made an access decision (the actual access refusal decision) with respect to the initial application made to it by the applicant on 2 August 2021. The respondent notified the applicant of its decision on 5 April 2023. The applicant, on 12 April 2023, applied for internal reconsideration of the actual access refusal decision. The National Archives of Australia failed to make a decision as required within 30 days and consequently a decision refusing access was deemed to have been made on 25 May 2023 under s 42(2)(b) of the Archives Act (the second deemed access refusal decision).

Consideration

7.There has been no application to the Tribunal with respect to the second deemed access refusal decision.

8.The current application seeks a review of the first deemed access refusal decision. But that application was made out of time and the actual access refusal decision was made before the order purportedly extending the time for that application. The actual access refusal decision intervened on 29 March 2023 (notified on 5 April 2023) at which time there was no valid application for review because time had not yet been extended at that stage. In fact, the Tribunal did not have jurisdiction to extend time as at 26 April 2023 because the first deemed access decision had effectively been superseded by the actual access refusal decision.

9.The review of decisions is dealt with in Division 4 of Part V of the Archives Act. Section 42 provides for internal reconsideration of decisions. Section 43 deals with applications for review to the Tribunal and provides relevantly:

43 Applications to Administrative Appeals Tribunal

(1)Subject to this section, an application may be made to the Administrative Appeals Tribunal for a review of a decision of the Archives in respect of access to a record, being:

(a)a decision refusing to grant to the applicant access to the record on the ground that the record is an exempt record or is a Commonwealth record to which Division 3 does not apply;

(b)a decision refusing to grant an extension of partial access to the record on the ground that the record is an exempt record and it is not practicable to make arrangements for giving the further access desired by the applicant in a form that would not disclose information or matter by reason of which the record is an exempt record;

(c)a decision refusing to grant to the applicant access to the record on the ground that the record has been withheld from public access pending examination of the record under section 35;

(d)a decision refusing to grant to the applicant access to the record on the ground that a determination has been made under section 37 that the record is to be withheld from public access or refusing to grant to the applicant access to the record otherwise than on specified conditions determined under that section;

(e)a decision refusing to grant to the applicant access to the record in a particular form by reason of paragraph 36(4)(a), (b) or (d); or

(f)a decision refusing to allow a further period for making an application under subsection 42(1) for a reconsideration of a decision.

(2)Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 42 for a reconsideration of the decision, that person is not entitled to make an application under subsection

(1) in relation to that decision, but may make such an application in respect of the decision made on such a reconsideration.

(3)Subsection (2) does not prevent an application to the Tribunal in respect of a decision where:

(a)the person concerned has applied under section 42 for a reconsideration of the decision;

(b)a period of 30 business days has elapsed since the day on which that application was received by the Archives; and

(c)he or she has not been informed of the result of the review;

and such an application to the Tribunal may be treated by the Tribunal as having been made within the time allowed by subsection (4) if it appears to the Tribunal that there was no unreasonable delay in making the application to the Tribunal.

10.I consider that s 43(2) of the Archives Act has application on the rather unusual facts of this matter and would operate to:

(a)disentitle the applicant from making an application for review to the Tribunal under s 43(1)(a); and

(b)require the applicant to make an application for review in respect of the decision made on reconsideration, namely the second deemed access refusal decision.

11.The Tribunal only has jurisdiction under s 25 of the AAT Act to review decisions as provided for by an enactment, which in this case is the Archives Act. The effect of s 43(2) is, on the facts before the Tribunal, to limit the Tribunal’s jurisdiction to a review of the second deemed access refusal decision. The Tribunal can indicate that, if the applicant applied for a review of the second deemed access refusal decision, it would extend the time for making such an application and seek the views of the parties as to how best to deal with the application.

12.In these circumstances, the application for review is dismissed under s 42A(4) because the Tribunal is satisfied that the first deemed access refusal decision is not reviewable by the Tribunal.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

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

Associate

Dated: 25 March 2024