Van De Wiel and Civil Aviation Safety Authority
[2006] AATA 207
•7 March 2006
CATCHWORDS – FREEDOM OF INFORMATION – fees and charges – whether financial hardship – whether release of documents in general public interest or in the interest of a substantial section of the public – whether deposit should be paid – decision set aside.
Australian Securities Commission Act 1989 s 50
Freedom of Information (Fees and Charges) Regulations 1982 rr 3, 5, 6, 8, 9, 10, 11, 12 and 14
Freedom of Information Act 1982 ss 3, 4, 6, 15, 24, 29, 30A, 55, 58, 6 and 94
Income Tax Assessment Act 1936 s 265
Social Security Act 1947
Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93
Cashman and Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301
Powell v Evreniades (1989) 21 FCR 252
Re Dousett and Department of Veterans’ Affairs (1992) 29 ALD 588
Re Kabalan (1993) 113 ALR 330
Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43
Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225
Re Schutt Flying Academy (Australia) Pty Ltd and Civil Aviation Safety Authority (2002) 71 ALD 533
Re WAJ and Commonwealth Ombudsman (No 2) (1999) 53 ALD 700
DECISION AND REASONS FOR DECISION [2006] AATA 207
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/608
GENERAL ADMINISTRATIVE DIVISION )
Re STAN VAN DE WIEL
Applicant
AndCIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 7 March 2006
Place: Melbourne
Decision:The Tribunal decides that:
1.the respondent’s decision to estimate charges of $2,292.00 and require the applicant to pay a deposit of $573.00 be set aside; and
2.there be substituted for that decision a decision that:
(1)the applicant is not liable to pay a charge in respect of documents to which he has requested access and which meet the following description:
(a)documents relating to the contamination of Av-Gas produced by Mobil in 1999 and 2000;
(b)documents relating to the applicant’s reporting of any such contamination; and
(c)documents relating to the applicant or to Schutt Flying Academy (Australia) Pty Ltd, RegionAir Express Pty Ltd or Aviatour Pty Ltd and preceding the decisions to issue Show Cause letters and decisions to cancel the Air Operator’s Certificate held by Schutt Flying Academy (Australia) Pty Ltd and to withdraw the applicant’s approval as a Chief Pilot and not already given to him in relation to previous proceedings in the Tribunal reported as Re Schutt Flying Academy (Australia) Pty Ltd and Civil Aviation Safety Authority (2002) 71 ALD 533; and
(2)the total charges that the applicant is required to pay is not to exceed $1,500.00; and
(3)the applicant is liable to pay a deposit not exceeding $250.00 of the total charge estimated to be payable in relation to the remaining documents he has requested.
S A FORGIE
Deputy President
REASONS FOR DECISION
Under the Freedom of Information Act 1982 (FOI Act), Mr Stanislas van de Wiel, asked the Civil Aviation Safety Authority (CASA) for copies of documents relating to himself and three companies,[1] of which he was a director, as well as to Mobil Oil Australia Pty Ltd (Mobil) dating from March 1999. Mr van de Wiel made his request on 18 January 2005. One of the companies, Schutt has instituted legal proceedings against Mobil in relation to Av-Gas contamination. CASA had cancelled Schutt’s Air Operator’s Certificate (AOC) and withdrawn Mr van de Wiel’s approval as its Chief Pilot. Mr van de Wiel detailed 50 documents or categories of documents that he sought. CASA has estimated that the charges will amount to $2,292.00 and has asked Mr van de Wiel for a deposit of $573.00. Mr van de Wiel has asked that he not be asked to pay the charges and deposit on the basis that giving him access to the documents he has requested is in the general public interest or that payment of the fee would cause him financial hardship. I have decided that the charges should be imposed and a deposit required but only in relation to documents falling outside certain classes of documents I have specified. In any event, the total charges that Mr van de Wiel will be required to pay will not exceed $1,500.00 with a deposit of no more than $250.00.
BACKGROUND
[1] The companies are Schutt Flying Academy (Australia) Pty Ltd (Schutt), RegionAir Express Pty Ltd (RegionAir) and Aviatour Pty Ltd (Aviatour).
Initially, CASA refused Mr van de Wiel’s request on the basis that it would substantially and unreasonably divert its resources from its other operations.[2] It affirmed its decision on internal review on 5 July 2005. After Mr van de Wiel had applied to this Tribunal for review of CASA’s decision, CASA identified 311 files which could contain documents meeting the request.[3] By agreement with CASA, Mr van de Wiel eliminated those documents and files that he recognised as irrelevant to his request and, in so doing, reduced the search to documents in 67 of those files. CASA decided that Mr van De Wiel was liable to pay a charge which it calculated to be $5,124.00. After finding that it could search some of the files electronically, it found that it need only assess 37 of the 67 files manually and reduced its total charge to $2,292.00. It then asked Mr van de Wiel for a deposit of $573.00. At a telephone directions hearing CASA subsequently indicated that it would not impose a charge greater than $1,500.00.
[2] FOI Act, s 24(1)(a)
[3] Listed at T documents, T9-T44
LEGISLATIVE FRAMEWORK
Subject to its provisions, the FOI Act provides that every person has, in accordance with its provisions, a legally enforceable right to obtain access to a document in the possession of an agency or a Minister. An agency includes CASA.[4] One of the provisions with which an applicant must comply is s 15. It requires a request to be in writing and to specify certain information as well as to “be accompanied by the fee payable under the regulations in respect of the request.”[5] Section 4(8) provides that there is “an application fee in respect of the application” when regulations made for its purposes declare that an application fee is applicable in respect of an application under s 15(1).
[4] FOI Act, s 4(1)
[5] FOI Act, s 15(2)(e)
Regulation 5 of the Freedom of Information (Fees and Charges) Regulations 1982 (Regulations) sets the application fees but its application is qualified by r 6. In general terms, r 6 provides that charges and fees are not applicable in relation to a request for access to a document containing information relating to the applicant’s claim for any prescribed benefits made under one or other of four specified Acts[6] or any income support payment of like nature.
[6] FOI Act, r 6(1): Seamen’s War Pensions and Allowances Act 1940, Social Security Act 1991, Student Assistance Act 1973 and the Veterans’ Entitlements Act 1986.
Section 30A of the FOI Act provides for the remission of application fees. If it is relevant to this case, it permits an agency such as CASA to remit an application fee or part of it. An agency may do so if it:
“… considers that the fee or a part of the fee should be remitted for any reason, including either of the following reasons:
(i)the payment of the fee or of the part of the fee would cause or caused financial hardship to the applicant or a person on whose behalf the application was made;
(ii)the giving of access is in the general public interest or in the interest of a substantial section of the public;
…”[7]
An application may be made to the Tribunal for review of a decision under s 30A.[8]
[7] FOI Act, s 30A(1)(b)
[8] FOI Act, s 55(1)(e)
Charges are the subject of s 29(1). That section provides that an agency must advise an applicant of any liability to pay a charge where it has decided, under the regulations, that the “… applicant is liable to pay a charge (not being an application fee) in respect of a request for access to a document, or the provision of access to a document …”.[9] Section 29(5) guides the agency in determining an applicant’s liability:
“Without limiting the matters the agency or Minister may take into account in determining whether or not to reduce or not to impose the charge, the agency or Minister may take into account:
(a)whether the payment of the charge, or part of it, would cause financial hardship to the applicant, or to a person on whose behalf the application was made; and
(b)whether the giving of access to the documents in question is in the general public interest or in the interest of a substantial section of the public.”
[9] FOI Act, s 29(1)
The agency must advise an applicant of various information relating to the charge including its amount and the basis on which it has been assessed. It must also advise:
“that the applicant may contend that the charge has been wrongly assessed, or should be reduced or not imposed”.[10]
This provision mirrors that in s 55(1)(d) permitting an application to be made to the Tribunal for review of “a decision under section 29 relating to imposition of a charge or the amount of a charge”.
[10] FOI Act, s 29(1)(c)
Section 94 provides that the regulations may make provision for or in relation to the making of charges “… in respect of requests for access to documents or in respect of the provision of access to documents …”.[11] Regulation 3 of the Regulations provides that an agency may decide whether a person who has made a request “… is liable to pay, in respect of the request or in respect of the provision to the applicant of access to the document, any of the charges applicable under these Regulations, other than an application fee.”[12] When an agency has decided that the person is liable to pay a charge:
“… then, except where regulation 8, 9 or 10 applies, the charge is payable by the applicant in the amount or at the rate fixed by, or in accordance with, the Schedule.” [13]
[11] FOI Act, s 94(1)(a)
[12] Regulations, r 3(1)
[13] Regulations, r 3(2)
Regulation 8 prescribes the amount of the charge that the person is liable to pay where, in general terms, access to a document may be given in more than one form and the applicant has not requested access in any particular form. Regulation 9 provides that charges may be estimated when the agency has decided to notify the applicant of liability to pay a charge but has not taken all steps necessary to make a decision[14] or has not taken all steps necessary to enable the applicant to be given access to the document.[15] It also provides that they may be charged where the agency has decided that the applicant is liable to pay a charge and the applicant is to inspect the documents.[16] Regulation 10 provides for readjustment of liability for charges should it be found that the amount of the charges does not equal the amount the applicant would be liable to pay under the Regulations.
[14] Regulations, r 9(1)
[15] Regulations, r 9(2)
[16] Regulations, r 9(3)
Charges must be paid before the agency will grant access.[17] They must be paid within 30 days[18] unless the applicant contests the amount of the charge or its imposition. Once an agency or a Minister has decided that an applicant is liable to pay a charge exceeding $25.00, the agency or Minister may decide whether the applicant is required to pay a deposit on account of the charge.[19] The amount of the deposit must not exceed $20 if the charges are estimated at a figure between $25.00 and $100.00 or 25% of the estimated charge if the estimate exceeds $100.00.[20] The agency or Minister determines the amount of the deposit. Once paid, a deposit is not generally refundable. It will only be refunded if it must be in order for the agency or Minister to comply with a decision to remit the charge in whole or in part.[21]
[17] Regulations, r 11
[18] FOI Act, s 29(1)(f)
[19] Regulations, r 12(1)
[20] Regulations, r 12(2)
[21] Regulations, r 14
CONSIDERATION
On its face, s 29(1) does not require CASA to decide that Mr van de Wiel is liable to pay a charge. This is confirmed by s 29(5) when it refers CASA to the matters it “may take into account in determining whether or not to reduce or not to impose the charge” (emphasis added). Those matters are not limited by the terms of the provision even though it sets out two to which regard must be had. The parties paid particular regard to the two to which regard must be had: whether payment of the charge, or part of it, would impose financial hardship on Mr van de Wiel and whether giving access to the documents he has requested is in the general public interest or in the interest of a substantial section of the public. I will begin with them.
Financial hardship
The first matter specified in s 29(5) is “financial hardship”. In Re WAJ and Commonwealth Ombudsman (No 2),[22] Deputy President Hotop considered the meaning of “financial hardship” in the context of s 66(2)(a). That paragraph provides that the Tribunal must have regard to a number of matters in deciding whether to recommend to the Attorney-General that the applicant’s costs in relation to a proceeding be paid by the Commonwealth. One of those matters, found in s 66(2)(a) is “… whether payment of the costs or any part of the costs would cause financial hardship to the applicant”. Deputy President Hotop summarised some of the authorities to that time:
[22] (1999) 53 ALD 700
“21. The term ‘hardship’ is defined in The Macquarie Dictionary as follows:
‘1. a condition that bears hard upon one; severe toil, trial, oppression, or need. 2. an instance of this, something hard to bear.”
In The New Shorter Oxford English Dictionary the definition of “hardship” is as follows:
‘1 The quality of being hard to bear; painful difficulty. 2 Hardness of fate or circumstance; severe suffering or privation. Also, an instance of this. …’
In Re Kabalan (1993) 113 ALR 330 the Federal Court of Australia (Gummow J) said (at 332):
‘Any condition which presses with particular asperity upon a person may be described as a hardship.’
Similarly, in Re Hounslow (above) the Tribunal, in the context of s.66(2)(a) of the FOI Act, said (at N 367):
‘ “Hardship” is a strong word and in our view severe circumstances would need to be demonstrated before it became applicable.’
In Re Paterson (No 2) (above) the Tribunal, again in the context of s.66(2)(a) of the FOI Act, said (at 238):
‘… “financial hardship” means hardship caused to the applicant by reason of the financial burden of being obliged to meet the costs of the application from its own resources. … It is not enough … for the applicant to assert that if it is obliged to meet its own costs, it will deplete the funds otherwise available to it to pursue its objects. Every successful applicant, no matter how wealthy, would suffer financial hardship on that basis.’
Similarly, in Re Bailey and Commonwealth Tertiary Education Commission (1986) 12 ALD 165 the Tribunal, in the context of the discretionary power to remit a charge imposed in respect of a request for, or the provision of, access to a document under the FOI Act (see, now, s.29(5)(a) of the FOI Act), said (at 167):
‘… financial hardship surely amounts to more than that a person, irrespective of his financial situation, has to meet a charge from his own resources.’
22. In having regard to the ‘financial hardship’ factor prescribed by s. 66(2)(a) of the FOI Act, account must be taken of both the amount of the costs incurred by the applicant and the applicant’s financial circumstances. …”[23]
[23] (1999) 53 ALD 700 at 706-7
Deputy President Hotop concluded by saying that WAJ’s:
“… financial circumstances are sufficiently favourable for it reasonably to be said that he has the financial capacity to pay the abovementioned amount of costs without placing himself in a financially embarrassing situation or in financial difficulties. In other words, payment of those costs by him would not, to adopt Gummow J’s words in Re Kabalan …, press upon him with particular asperity or severity in a financial or pecuniary respect. …”[24]
[24] (1999) 53 ALD 700 at 707
While acknowledging that words must be interpreted in their context, I note that there are occasions on which Parliament has chosen to use the terms “serious financial hardship” or “severe financial hardship” rather than “financial hardship”. It has done so, for example, in the former Social Security Act 1947. The Tribunal has concluded that the latter expression, “severe financial hardship” is the equivalent of “arduous financial suffering”.[25] In Re Dousett and Department of Veterans’ Affairs,[26] I attributed a similar meaning to the slightly different expression “serious financial hardship”. These meanings are very close to that adopted in WAJ with reference to Re Kabalan.[27]
[25] Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225
[26] (1992) 29 ALD 588
[27] see [12] and [13] above
Yet it seems to me that to give the same meanings whether qualified or unqualified by an adjective is to ignore the work that an adjective has to do in qualifying the meaning of the noun to which it relates. The word “serious” has been considered by Hill J in Powell v Evreniades.[28] Hill J considered the meaning of the expression “serious hardship” and in doing so drew a distinction between “extreme hardship” and “serious hardship” before considering the meaning of “serious hardship” in the context of s 265(1) of the Income Tax Assessment Act 1936:
“… Clearly, there is a distinction between, on the one hand hardship which is serious, and on the other hand, hardship which may be said to be extreme although it is obvious enough that what will constitute either will depend on the circumstances of a given case.
It is inappropriate to endeavour in the abstract to state tests of what
will and what will not constitute serious hardship within the context of
sec. 265. Clearly there would be severe financial hardship if the dependants of a deceased person were left destitute without any means of support. That isnot to say that in any particular case something less than that will not constitute serious hardship.”[29]
[28] (1989) 21 FCR 252; 89 ATC 4,415
[29] (1989) 21 FCR 252; 89 ATC 4,415 at 259; 4,420-4,421
When regard is had to Gummow J’s judgment in Re Kabalan it seems to me that he has been somewhat more restrained in his consideration of “hardship” than the sentence quoted in Re WAJ would suggest. The passage in which that sentence appears is:
“ Any condition which presses with particular asperity upon a person may be described as a hardship. The sense is conveyed by the definition in the Oxford English Dictionary, 2nd ed, which includes ‘hardness of fate or circumstance’.
In Rukat v Rukat [1975] Fam 63 at 73, Lawton LJ said:
The word ‘hardship’ is not a word of art. It follows that it must be construed by the courts in a common sense way, and the meaning which is put upon the word ‘hardship’ should be such as would meet with the approval of ordinary sensible people. In my judgment, the ordinary sensible man would take the view that there are two aspects of ‘hardship’ — that which the sufferer from the hardship thinks he is suffering and that which a reasonable bystander with knowledge of all the facts would think he was suffering.
In a case dealing with a provision in s 70 of the Landlord and Tenant (Amendment) Act 1948 (NSW), FG O'Brien Pty Ltd v Elliott [1965] NSWR 1473 at 1475, Asprey J said that in the context in which that term appeared in the landlord and tenant legislation, hardship would comprehend ‘any matter of appreciable detriment, whether financial, personal or otherwise’ and (unsurprisingly) that ‘each case must depend upon its own particular facts’.”[30]
[30] (1993) 113 ALR 330 at 332-333
As the expression in s 29(5) is “financial hardship” and is not further qualified by words such as “serious” or “severe”, Gummow J’s analysis is more appropriate provided that it is limited in its terms to financial hardship and not to other hardship. Mr van de Wiel will be suffering financial hardship if the payment of the charge, or a part of it, will lead to his suffering an appreciable detriment. I am reluctant to conclude that this equates with his being in “a financially embarrassing situation or in financial difficulties”. The test is an objective test not based on Mr van de Wiel’s view of his situation.
Mr van de Wiel has given details of his financial position. He has shown his income as an annuity pension of $1,570.00 per month and listed expenses totalling $1,390.00. While one of the components of the listed expenses would seem to be somewhat on the high side, I note that Mr van de Wiel has not recorded any amount payable for rent as he is presently house-sitting. His present arrangement will continue for a further two months but that is not necessarily an arrangement that will continue. Having regard to the uncertainty of the period for which his rent free status will continue, I consider that the overall global amount of Mr van de Wiel’s expenses is a reasonable estimate.
His assets total $58,900.00 and include a motor vehicle ($7,500.00), personal effects ($45,000.00), shareholding (ASX: $3,600.00) and bank account ($2,800.00). Mr van de Wiel and his children are beneficiaries of a private superannuation fund (the Fund). The Fund purchased an aircraft for $45,000.00 and makes it available for private hire. The fees are paid to the Fund and Mr van de Wiel acts on the Fund’s behalf in dealing with the aircraft. Mr van de Wiel said that he could not have access to the money in the Fund and, in the absence of any evidence to the contrary, I accept that on the basis that it is not an inherently unreasonable proposition.
Mr van de Wiel divided liabilities into business and personal liabilities. He showed business related loans as amounting to $250,000.00 and private loans amounting to $2,100,000.00 but did not show any amount by way of repayment of those loans. On behalf of the respondent, Mr Anastasi questioned the amount of the unsecured loans. It is unclear, he said, whether these relate to loans of the companies of which Mr van de Wiel is a shareholder. Given that they are unsecured and that Mr van de Wiel does not record that he must make any repayment of them, Mr Anastasi submitted that the loans were “unusual”. At the hearing, it appeared that the loans were monies that had previously been part of the estate of Mr van de Wiel’s late wife. Their children had been beneficiaries under her will, he said, but without the benefit of a copy of the late Mrs van de Wiel’s will, I am unable to ascertain whether the loans are loans in the sense in which the law understands them or amounts of money about which Mr van de Wiel feels morally responsible to his children.
I am left with the amounts of Mr van de Wiel’s monthly income and expenses and his assets as well as CASA’s charges amounting to $2,292.00 with a deposit of $573.00. In practical terms, the charge would reduce his bank account to some $500 but he would be left with his shareholding and other assets. This is not a large buffer zone given the expense of the unexpected in modern life. Even so, when viewed overall, I do not consider that Mr van de Wiel will suffer an appreciable detriment if he is required to pay the charge. On the material that I have and given that there is no evidence that he has been asked to repay the loans, he will be able to meet his expenses and debts as they fall due and have some limited flexibility in his financial arrangements as he does. I am not satisfied that he will suffer financial hardship if he is required to pay the charge.
Public interest considerations
The second matter is the meaning of the “general public interest” as well as the meaning of the expression “interest of a substantial section of the public”. There is little judicial consideration of these specific expressions but there is much on “public interest”. A number of the authorities were gathered by the Full Court of the Federal Court in Australian Securities Commission v Deloitte Touche Tohmatsu[31] when reviewing a decision by the Australian Securities Commission (ASC) that it is in the public interest to cause proceedings to be begun in the name of a company to recover damages or property:
[31] (1996) 70 FCR 93
“… the leading authority in this area is O’Sullivan v Farrer (1989) 168 CLR 210. Under the Liquor Act 1982 (NSW), objection to an application to remove a licence could be made on ‘public interest’ grounds. Mason CJ, Brennan, Dawson and Gaudron JJ said (at 216):
‘[T]he Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”: Water Conservation and Irrigation Commission (NSW) v Browning per Dixon J.’
They went on to say (at 216-217):
‘And the subject-matter to be decided, involving, as it does, the distribution and location of facilities for the supply of liquor, is one which has traditionally been seen as permitting the exercise of a broad discretion in the decision-making process.’
It will also be remembered, as Lindgren J further noted, that in Bond's case, Toohey and Gaudron JJ observed (at 381-382) that a reference to the ‘public interest’ indicated that the considerations to be taken into account were not to be ‘closely confined’.
The expression ‘in the public interest’, as it appeared in s 41(1)(d) of the Conciliation and Arbitration Act 1904 (Cth), was considered by the High Court in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393. Mason CJ, Wilson and Dawson JJ said (at 395):
‘Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree.’
See also Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) (1995) 131 ALR 657 at 681; and see Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 137 ALR 281.
In Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50, legislation empowered the Departmental Secretary to stop clinical trials if he became aware that they were ‘contrary to the public interest’. Lockhart J said (at 59):
‘The public interest is a concept of wide meaning and not readily delimited by precise boundaries. Opinions have differed, do differ and doubtless always will differ as to what is or is not in the public interest.’ ”[32]
[32] (1996) 70 FCR 93 at 123
The ASC had made its decision under s 50 of the Australian Securities Commission Act 1989. The Full Court said that:
“… the responsibility vested in the ASC by s 50 called for the formation of a judgment by it as to where the public interest lay, in choosing whether to bring, or not to bring, proceedings. The exercise called for an evaluation, at that stage and on the material then available to the ASC, of several, perhaps many, aspects of the public interest. Some aspects may have competed with another. But the judgment involved in that evaluation was essentially one of fact and degree, and by its very nature it will be something that is not easily susceptible to judicial review.”[33]
In relation to s 50, the Full Court concluded:
“… the ‘public interest’ requirements in s 50 imports (in the language of O’Sullivan v Farrer[[34]] and Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492)
‘a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and the purpose of the statutory enactments may enable … give reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.’’”[35]
[33] (1996) 70 FCR 93 at 123-124
[34] (1989) 168 CLR 210
[35] (1996) 70 FCR 93 at 128-129
Ignoring for the moment the word “general” in s 29(5) of the FOI Act, these authorities require me to look to the object of the FOI Act and the way in which Parliament has chosen to achieve that object in that legislation. Its object is well known being to create:
“… a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; …”[36]
Parliament has identified the essential public interests and the private and business affairs that it has decided should be protected in the exemptions set out in Part IV of the FOI Act. Apart from those documents that it has decided should be protected, Parliament has clearly intended that documents in the possession of an agency such as CASA be made available to the public. It follows that the reference in s 29(5) to the public interest must mean something more than the mere granting of access under the FOI Act to the documents sought. There must be some benefit that will flow to the public because of the release of those particular documents. That will normally require that the documents contain information whose release is in the public interest.
[36] FOI Act, s 3(1)(b)
What does the word “general” add to the words “public interest” in the expression “general public interest”? The ordinary meanings of the word “general” include “… relating to, involving or applying to all or most parts, people or things; widespread, not specific, limited, or localized the general opinion as a general rule …”[37] Its addition to the “public interest” suggests that it means that s 29(5) is intended to apply to the public interest that relates to most people. That this is so is reinforced by the alternative requirement in s 29(5) i.e. that regard be had to whether access to the document is in “the interest of a substantial section of the public.”
[37] Chambers 21st Century Dictionary, Revised Edition, 1999 reprinted 2004
As the authorities to which I have referred recognise, there may be occasions when there is a need to balance various interests, including public interests, in reaching a conclusion. If it were the case that the documents requested were exempt under Part IV but the agency had decided not to claim the exemption but to exercise its discretion to give access to them,[38] there is a question whether the public interest represented by the relevant provision of Part IV would be one of those public interests that need to be taken into account. The decision to give access is separate from the decision whether or not to require payment of the application fees and charges. Having made the decision that access may be given, it may be that the relevance of the public interest that could be legitimately protected under the FOI Act would seem to lose its relevance. To do otherwise would seem to be contrary to the view that has been taken of the proper approach to the expression “general public interest” albeit in the context of s 66(2) of the FOI Act. That section requires the Tribunal to have regard to “the question whether the decision of the Tribunal on review will be of benefit to the general public” in deciding whether to recommend to the Attorney-General that an applicant’s costs be paid by the Commonwealth. Beazley J said of that section:
“The Tribunal has consistently, and in my view correctly, accepted that the proper approach to the question of benefit to the general public is that stated in Cazalas v US Department of Justice (1983) 709 F 2d 1051 at 1053. In Cazalas, it was held that the question of benefit to the general public was concerned with benefits flowing from the fact that information previously withheld by the agency is now accessible to the community. In other words, the question is concerned with the consequences or result of the application for review, not with the Tribunal’s reasons for decision: see also Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43 at 48; Re Jacobs and Department of Defence (1988) 9 AAR 446 at 455.”[39]
[38] Section 58(2) provides that the Tribunal does not have power to decide to grant access to a document once it is established in proceedings before it that the document is exempt. Having already provided in s 58(1) that the Tribunal has power to decide any matter in relation to the request that could have been made by the agency or Minister, the qualification in s 58(2) must be taken as recognition of the right of the agency or Minister to grant access to a document that comes within the terms of Part IV if thought appropriate.
[39] Cashman and Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301
Deputy President Hotop referred to this passage and to a similar view expressed in Re Lianos and Secretary, Department of Social Security (No 2)[40] in Re WAJ and Commonwealth Ombudsman (No 2).[41] He concluded, again in the context of s 66(2), that:
“… the relevant question in this case, for the purpose of addressing the matter prescribed by s.66(2)(b) of the FOI Act, is whether the documentary information released by reason of the applicant’s application for review will be of benefit to the general public. … Even if the applicant’s application for review created a ‘test case’, the relevant question in relation to s. 66(2)(b) would be the same, but the release of information as a result of a ‘test case’ may be more likely, by virtue of the importance of, and public interest in, such information, to be of benefit to the general public.”[42]
[40] (1985) 9 ALD 43 at 49
[41] (1999) 53 ALD 700 at 707-8
[42] (1999) 53 ALD 700 at 708
Mr Anastasi submitted that Mr van de Wiel has not demonstrated how giving access to the document is in the public interest. Mr Anastasi’s description of the subjects sought by Mr van de Wiel as falling into two areas is fair. The first area is that of operational documentation relating to Schutt and associated CASA files dealing with matters between them in the Tribunal.[43] These, Mr Anastasi submitted, are matters of interest only to Mr van de Wiel and not to the general public or a section of it. He referred to a letter written by Mr van de Wiel on 17 February 2005 in which he referred to the way in which CASA had handled his previous complaints. To date, he said, none of his complaints had been answered and there had not been any attempt to mediate the matters, to attempt to resolve the matters or to offer compensation to him.[44] The second subject area covered by Mr van de Wiel’s request is documentation concerned with the contamination of Av-Gas produced by Mobil during 1999 and 2000.
[43] Re Schutt Flying Academy (Australia) Pty Ltd and Civil Aviation Safety Authority (2002) 71 ALD 533
[44] T documents at 51
In support of his submission that giving access to the documents is in the general public interest or in the interest of a substantial section of the public, Mr van de Wiel has said that it is in the public interest to know whether the concerns expressed in a letter written by the then Minister for Transport and Regional Services to Mr Bruce Byron, Chief Executive Officer of CASA, on 25 November 2003 remain. Mr van de Wiel referred to the letter as the “Charter Letter” and said that it is:
“… in the public interest to know that the concerns expressed in the Minister’s Charter letter are still valid today. These specific concerns were brought to the Minister’s attention through direct communications by many in the industry including myself over a period of several years.
Almost the whole of the ‘Charter’ implies a definite dissatisfaction with specific aspects of the operation of CASA and specifically addresses points of ‘general public interest’, in particular those participants in the Aviation Industry …”[45]
[45] Attachment to Mr van de Wiel’s letter dated 7 December 2005
The Charter Letter addressed a number of issues including the working relationships between CASA and other bodies including the Australian Transport Safety Bureau and the Department of Transport and Regional Services. It expressed the desire that CASA aim for world’s best practice while being a good regulator commanding trust and respect of those whom it regulates and the community generally. CASA, the Minister continued in the Charter Letter, should have a visible and accessible means of handling complaints so that it is fair and accountable. That is particularly important when the livelihood, financial security and personal reputation of individuals is at stake.
It is in the public interest of the whole of the Australian community that CASA properly fulfil its functions in relation to the regulation of the aviation industry and the maintenance of safety. It does not follow from that general statement that access to documents relating to the complaints of an individual or that individual’s concerns regarding the way in which CASA carries out its functions is in the general public interest or in the interest of a substantial section of it. There may be occasions on which it is because, perhaps, events surrounding that individual’s concerns are so serious or that individual’s circumstances are indicative of systemic problems. On the material, I am not satisfied that, in so far as Mr van de Wiel seeks access to documents about matters affecting him personally, Schutt, RegionAir or Aviatour, this is a case that moves from individual concerns to concerns of public interest.
In so far as Mr van de Wiel’s request relates to documents concerned with the contamination of Av-Gas produced by Mobil during 1999 and 2000, that is a different matter. Contamination of Av-Gas is a matter of grave concern and of public concern. Potentially, it can affect the businesses of those engaged in the aviation and allied industries. It can affect the safety of those who work in the industry and those who fly. It is a matter of widespread public interest. If it is not a matter of general public interest, it is certainly a matter of interest to a substantial section of the public. On behalf of CASA, it has been said that Mr van de Wiel has been compensated for the losses he incurred as a result of the contamination. That does not lessen the public interest. Just as an individual interest cannot of itself lead to a conclusion that it is of public interest, the fact that an individual has been compensated cannot automatically lead to the conclusion that it is no longer of public interest. It does not do so in this case.
Although s 29(5) requires me to take account of financial hardship and the public interest grounds, I must also consider whether there are any other matters that I should take into account. I have looked generally to the FOI Act and to the Regulations. One aspect of that general guidance is in the form of the agency’s power to impose charges and to require the payment of a deposit. The amounts or rates of charges set out in the Schedule to the Regulations suggest that the concept of cost recovery, but not profit-making, lies behind them. So, for example, photocopies are charged at 10 cents per page[46] and an amount not exceeding the actual costs incurred by the agency may be charged for the recovery of information in a document by the use of a computer ordinarily available to the agency.[47] Regulation 11 suggests that cost recovery is intended but, at the same time, s 29(5) contemplates that there will be occasions when an agency may decide not to charge and so not to recover its costs, or part of them. All of this is in the context of legislation that creates “a general right of access to information in documentary form in the possession of … departments … limited only be exceptions and exemptions necessary for the protection of essential public interests and private and business affairs of persons in respect of whom information is held and collected …”.[48] That right is, of course, subject to the provisions of the FOI Act.[49] Among those provisions to which it is subject is the provision that a person’s right of access is not affected by any reasons the person gives for seeking access. At the same time, s 29(5) makes it clear that a person’s reasons may well be relevant as they must already be relevant in deciding whether the giving of access to the documents is in the general public interest or in the interest of a substantial section of the public.
[46] Regulations, Schedule 1, Part 2, item 2
[47] Regulations, Schedule 1, Part 2, item 4
[48] FOI Act, s 3(1)(b)
[49] FOI Act, s 11(1)
The FOI Act presents what can be competing aims and I have some difficulty in finding a balance that reflects the right of access and the intention to recover some charges and their imposition. Apart from general public interest or the interest of a substantial section of the public and financial hardship, the FOI Act itself provides little guidance. Perhaps that is the guidance that it intends to provide. The circumstances of where the balance lies needs to be determined by what is a fair and appropriate thing in each case having regard to the use that is to be made of the documents, the cost to the public and the workload that cost reflects and the benefit that can be obtained by the public in granting access. At times, the benefit to the public may appear a little remote but there are occasions on which a benefit to the individual can be for the benefit of all.
This is a case in which the benefit of giving access to Mr van de Wiel could reasonably be expected to bring a real benefit both to him and to CASA and so to the public in the sense of seeking to limit the future expenditure of public funds. I note that Mr van de Wiel has been involved in a long running dispute with CASA regarding his reporting Av-Gas contamination issues to CASA and what he has felt to be “retaliatory action”[50] taken against him by CASA. This has included the cancellation of Schutt’s AOC and the withdrawal of Mr van de Wiel’s approval as a Chief Pilot. Whatever the matters behind the issue of the relevant Show Cause letters issued by CASA, their decisions in relation to those two matters have been the subject of review in the Tribunal.[51] Mr van de Wiel received, or should have received, all relevant documents held by CASA and pertaining to those decisions at the time. In view of that, I do not consider that it is appropriate that he receive the same documents again without charge given that they concern his individual circumstances. Some of the documents that he identifies in his request may not have been considered relevant to the review but may have still preceded CASA’s issuing the Show Cause letters and the decisions made in relation to him and to Schutt. Being focused on his individual circumstances, I do not consider that giving access to them can be said to be in the public interest, general or otherwise. I do consider, however, that it is appropriate that access be given to them without charge provided they do not extend to documents that were already presented to him in the earlier proceedings in the Tribunal. In Mr van de Wiel’s mind, CASA’s actions are closely connected with his reporting the Av-Gas contamination. It is in the interests of good administration that Mr van de Wiel have access to the documents so that he can review the sequence of events that preceded the show cause letters. He can then ascertain the relevance or influence, if any, of his reporting the Av-Gas contamination in CASA’s deciding to issue show cause letters and to proceed further against him and Schutt. Whatever the documents reveal, their disclosure is likely to end his pursuing CASA at the administrative level. That in turn leads to a reduction in administrative costs in dealing with correspondence and enquiries from him and from other bodies regarding his concern that he was not dealt with fairly. Too many tribunals and courts spend time dealing with cases in which some openness would have stopped a matter from festering and growing. Departments and agencies must share this experience. Mr van de Wiel’s financial circumstances are not such that he can readily afford to pay the charges for them even though to pay for them would not cause him financial hardship within the meaning of s 29(5). Taking all of these matters into account, I consider that the charges should not be imposed for the documents that Mr van de Wiel has not already received and that preceded CASA’s issuing the Show Cause letters and the decisions made in relation to him and to Schutt is not to say that documents such as these would always justify a charge not being imposed. This is a situation that is out of the ordinary. The charges that are imposed should not exceed $1,500.00, which was CASA’s lowest estimate of its charge.
[50] Attachment to Mr van de Wiel’s letter dated 7 December 2005 at 1
[51] Re Schutt Flying Academy (Australia) Pty Ltd and Civil Aviation Safety Authority (2002) 71 ALD 533
The matter of the deposit remains. It should only be payable in respect of the charge that is imposed for r 12(1)(a) provides that an agency may only decide to require an applicant to pay a deposit if it has already decided that the applicant is liable to pay a charge. Neither r 12 nor the remainder of the Regulations give any specific guidelines as to when a deposit should and should not be charged. The only guidance that can be gleaned is very general guidance found in the FOI Act in relation to the imposition of charges. Little, if any, is found in the provisions relating to a deposit. Therefore, I am left to consider matters such as the total charges that are to be imposed and the reasons for imposing or not imposing the charge. Given that a “deposit” may mean, among other things, “… (a sum of money) as the first payment for something, so guaranteeing that one can complete the purchase later. …”,[52] regard need also be had to that aspect of the payment. If an agency is to undertake a large amount of work for which it intends to charge, it may be appropriate that it ask for payment of part of the charge as a sign of good faith that the person requesting the documents will pay the total amount of the charge.
[52] Chambers 21st Century Dictionary, Revised Dictionary,1999
In this case, I consider that the appropriate balance lies in requiring Mr van de Wiel to pay no more than $250.00 as a deposit. That is somewhat less than the maximum amount of deposit that can be required under r 12(2) of the Regulations. Despite that, I consider that, in light of Mr van de Wiel’s financial circumstances, it represents a sufficient sign of good faith from him that he will pay the charges if he decides to proceed.
For the reasons I have given, I have decided that:
1.the respondent’s decision to estimate charges of $2,292.00 and require the applicant to pay a deposit of $573.00 be set aside; and
2.there be substituted for that decision a decision that:
(1)the applicant is not liable to pay a charge in respect of documents to which he has requested access and which meet the following description:
(a)documents relating to the contamination of Av-Gas produced by Mobil in 1999 and 2000;
(b)documents relating to the applicant’s reporting of any such contamination; and
(c)documents relating to the applicant or to Schutt Flying Academy (Australia) Pty Ltd, RegionAir Express Pty Ltd or Aviatour Pty Ltd and preceding the decisions to issue Show Cause letters and decisions to cancel the Air Operator’s Certificate held by Schutt Flying Academy (Australia) Pty Ltd and to withdraw the applicant’s approval as a Chief Pilot and not already given to him in relation to previous proceedings in the Tribunal reported as Re Schutt Flying Academy (Australia) Pty Ltd and Civil Aviation Safety Authority (2002) 71 ALD 533; and
(2)the total charges that the applicant is required to pay is not to exceed $1,500.00; and
(3)the applicant is liable to pay a deposit not exceeding $250.00 of the total charge estimated to be payable in relation to the remaining documents he has requested.
I certify that the thirty-eight preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
D. De Andrade Personal Assistant
Date of Telephone Directions Hearing 7 February 2006
Date of Decision 7 March 2006
For the Applicant self representedSolicitor for the Respondent Mr A. Anastasi,
Civil Aviation Safety Authority Legal Services Group
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