VKJY and Secretary, Department of Home Affairs (Freedom of information)
[2023] AATA 2551
•14 August 2023
VKJY and Secretary, Department of Home Affairs (Freedom of information) [2023] AATA 2551 (14 August 2023)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2022/0436
Re:VKJY
APPLICANT
AndSecretary, Department of Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM KC
Mr S Evans, MemberDate:14 August 2023
Place:Sydney
The application for the Tribunal to make a recommendation under s 66(1) of the Freedom of Information Act 1982 (Cth) is refused.
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Deputy President B W Rayment OAM KC
CATCHWORDS
FREEDOM OF INFORMATION — costs application under Freedom of Information Act 1982 (Cth) s 66(1)(a) — statutory interpretation — whether power to recommend to Minister that applicant’s costs of the proceedings be paid by the Commonwealth is enlivened — where application brought under s 57A(1)(b) — previous decision of the Tribunal on same question — application refused
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Freedom of Information Act1982 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Australian Conservation Foundation Incorporated and Minister for the Environment (Freedom of Information) [2022] AATA 307
Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370
Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 ALR 416
Re Littlejohn and Department of Social Security (1989) 17 ALD 482
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252VKJY and Secretary, Department of Home Affairs (Freedom of information) [2022] AATA 4306
SECONDARY MATERIALS
Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2009 (Cth)
REASONS FOR DECISION
Deputy President B W Rayment OAM KC
Mr S Evans, Member14 August 2023
Having succeeded in this case on the merits (see VKJY and Secretary, Department of Home Affairs (Freedom of information) [2022] AATA 4306) the applicant applied under s 66(1) of the Freedom of Information Act 1982 (the Act or the FOI Act) for a recommendation to the responsible Minister that the costs of the applicant in relation to the proceedings be paid by the Commonwealth. We would have made such a recommendation if it were in our power to do so.
As the Act requires, the original application for review under the Act was made to the Information Commissioner.
The Information Commissioner, decided under s 54W of the Act not to undertake the review because the Commissioner was satisfied that the interests of the administration of the Act made it desirable that the IC reviewable decision be considered by the Tribunal.
Section 66(1) of the Act provides as follows:
66Tribunal may make recommendation that costs be available in certain circumstances
1Where:
(a)a person applies, under section 57A, to the Tribunal for review of a decision of the Information Commissioner on an IC review; and
(b)the person is successful, or substantially successful, in his or her application for review;
the Tribunal may, in its discretion, recommend to the responsible Minister that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.
Section 55K of the Act refers to the duty of the Information Commissioner to make a decision in writing affirming, varying or setting aside the IC reviewable decision, and s 57A makes such a decision reviewable by the Tribunal.
There was in this case no application under s 57A(1)(a), but under s 57A(1)(b).
The question in this application is whether the Tribunal may make a costs recommendation under s 66 even though there was no application under s 57A(1)(a) of the Act.
It should be mentioned that costs are not normally ordered in the Tribunal with certain statutory exceptions (such as proceedings under the Safety, Rehabilitation and Compensation Act 1988 where a more favourable decision to the applicant is made by the Tribunal on review). The power to recommend that costs be paid by the Commonwealth is contained, so far as we are aware, only in s 66 of the FOI Act.
In Australian Conservation Foundation Incorporated and Minister for the Environment (Freedom of Information) [2022] AATA 307 (ACF), Justice T Thawley, Deputy President of the AAT, dealt with a similar application and dismissed it.
An earlier decision of the Tribunal is normally regarded as normative, appropriate to be followed unless a later Tribunal is satisfied that it was affected by legal or factual error. This is distinct from a decision of a Federal Court or the High Court, which is binding on the Tribunal.
We heard submissions from Mr Jordan Smith of counsel for the applicant who respectfully submitted that the ACF decision was erroneous, and from Mr Greg Johnston of counsel for the Secretary, who relied upon the ACF decision and made submissions in support of it.
The applicant’s submissions
The applicant noted s 3(4) of the Act, emphasising the concluding words:
3Objects – general
4The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
The applicant’s submissions began by noting that the earlier form of s 66(1) of the FOI Act, before the office of the Information Commissioner was established, was as follows:
21Both ss 54W and 57A were inserted into the FOI Act, and s 66(1)(a) was amended to its current wording, by the Freedom of Information Amendment (Reform) Bill 2009 (Cth) (2009 Bill). The 2009 Bill established the position of Information Commissioner. Prior to that amendment, the merits review procedure under the FOI Act was governed by former Part 6. Former s 54 contained a mechanism for internal review substantially similar to the mechanism under current Part 6. Former s 55 provided a mechanism for merits review to the Tribunal over a broad range of matters, including the original decision and any decision made on internal review. Former s 66(1) was in the following terms:
“Where:
(a) a person makes an application to the Tribunal under s 55 for review of a decision constituting the action to which the complaint relates; and
(b) the person is successful, or substantially successful, in his or her application for review;
the Tribunal may, in its discretion, recommend to the Attorney-General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.”
Prior to 2010, therefore, in a case such as this, the Tribunal would have had power to make a costs recommendation.
Next, the applicant drew attention to the remark in the explanatory memorandum for the bill which introduced s 66(1)(a) in its present form: “This item updates a reference and is consequential in nature.”
Next the applicant submitted that:
28It follows from this consideration of the statutory history that the change to s 66(1)(a) which saw the words “a decision of the Information Commissioner on an IC review” replace the previous words “a decision constituting the action to which the complaint relates” were not intended by Parliament to provide any new limitation beyond what was previously present.
It was submitted that the words “under s 57A” in s 66(1) are ambiguous, in that they do not attempt to distinguish between s 57(1)(a) and s 57A(1)(b). Section 57A(1) provides that:
57A Tribunal reviewable decisions—which decisions are reviewable?
1An application may be made to the Tribunal for review of the following decisions:
(a)a decision of the Information Commissioner under section 55K on an IC review;
(b)if the Information Commissioner makes a decision under paragraph 54W(b) (matters inappropriate for IC review)—the IC reviewable decision in relation to which the Information Commissioner makes the decision.
Note 1:An application for the review of a decision may be made by a person whose interests are affected by the decision (see section 27 of the Administrative Appeals Tribunal Act 1975).
Note 2:Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets out the time within which the application for review must be made.
The applicant says that the relevant ambiguity is that one does not know which decision of the Information Commissioner is involved. The applicant says that the words “on an IC review” in s 66(1) is a “broadly defined” term under s 54G of the Act.
Section 54G provides as follows:
54G Key concepts—what is an IC review?
An IC review is a review of an IC reviewable decision undertaken by the Information Commissioner under this Part.
Note: IC review is short for Information Commissioner review.
The applicant submits that the statutory context, purpose and relevant legislative history each favour the applicant’s proposed construction of s 66(1).
Paragraphs 33 and 34 of the applicant’s written submissions were as follows:
33As to purpose:
(a)section 3(4) of the FOI Act states that “functions and powers given by this Act are to be performed and exercised, as far as possible… at the lowest reasonable cost.” In the applicant’s submission, s 66(1)(a) should be construed as giving effect to this purpose. Excessive costs of making an FOI application is the mischief which s 66(1)(a) guards against;
(b)a purposive approach was adopted by the Tribunal in Re Paterson v Department of Home Affairs and Environment (1985) 7 ALD 403 at [24], to support a broader construction of s 66(1)(b) (holding that the section applied even when there had not been a hearing before the Tribunal);
(c)this mischief is in fact only more pronounced in the type of application before the Tribunal that comes from s 57A(1)(b), because both the EM and the Guidelines (as well as the reasons of the Information Commissioner in this case) show that the type of decisions in which the s 54W(b) discretion is to be exercised include those decisions which are highly contested, particularly complex and require particularly large expenditure of resources;
(d)it is important to understand that s 66 has been held to only cover an applicant’s costs in the proceedings to the extent they are before the Tribunal; that is, it does not cover the applicant’s costs before the original decision-maker or at some other review level: Re Toomer v Department of Primary Industry and Energy (No 2) (1991) 13 AAR 51; 22 ALD 164;
(e) the purpose of the introduction of s 54W(b) in the 2010 amendments was to allow the Information Commissioner, which would otherwise conduct an external merits review, to decline to do so if “satisfied it would be more appropriate and efficient for the application to be made directly to the AAT”; and
(f)the effect of a construction of s 66(1) that allowed the election under s 54W(b) to deprive the applicant of the possibility of their costs in a subsequent review before the Tribunal would arbitrarily frustrate the purpose of the FOI procedure being “at the lowest reasonable cost”, as well as the “efficiency” that gave rise to the existence of s 54W in the first place.
34As to legislative history:
(a)the exercise conducted above shows that the insertion of the words “on an IC review” into s 66(1)(a) in the 2010 amendments was no more than a consequential change, and was not intended to provide any new limitation on the Tribunal’s power under s 66(1)(a). Based on the authorities cited at paragraph [22]-[23] above, the former wording of s 66(1)(a) drew no distinction as to how a matter came before the Tribunal. The only question was whether the Tribunal properly had jurisdiction under former s 55; and
(b)in those circumstances, the impact of the words “on an IC review” in s 66(1)(b) ought not to now be determined as excluding applications to the Tribunal under s 57A(1)(b) from the Tribunal’s jurisdiction to recommend costs.
Those two submissions, are described by the applicant as the principal submissions of the applicant. Neither submission appears to have been made to the Tribunal in the ACF proceedings.
The applicant also submitted that the decision in ACF was plainly wrong at paragraphs [35] [36] and [39], and notes that the decision takes no note of s 3(4) of the Act.
The respondent’s submissions
The respondent submits that the decision of Thawley J as Deputy President of the Tribunal in ACF is correctly decided.
The respondent also placed reliance on a statement by DP Thompson in Re Littlejohn and Department of Social Security (1989) 17 ALD 482 at 486 that a decision of a judicial member is “very highly persuasive”.
Consideration
In our opinion, applying ordinary rules of statutory construction, the meaning of s 66(1) of the Act is clear. It means that the power to make a costs recommendation is available only in the case of an application to the Tribunal for review of a decision of the Information Commissioner. If, as happened in this case, the Information Commissioner makes a decision under s 54W(b) then that matter comes to the Tribunal directly to review the IC reviewable decision, that is, the decision of the agency. In the latter kind of case, there is no power to make a cost recommendation because s 66(1) is not engaged.
In our opinion, nothing in the statutory context of s 66 suggests any different conclusion. The words “IC review” are defined in s 54G.
While s 66 does not specify which limb of s 57A is being referred to, the words ”for review of a decision of the Information Commissioner on an IC review” make it plain that the limb of s 57A which is relevant is s 57A(1)(a).
We have considered s 3(4) of the Act. We do not see that provision as appropriate to cause s 66 to have a different meaning from that which we have just described. It is true that s 66 is a beneficial provision. As Isaacs J remarked in Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384, if a beneficial construction is to be given to the Act: “This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.”
As to the applicant’s submissions in paragraph 33 of its written submissions, we adopt what was said by DP Thawley in the ACF case as an answer to those submissions. The deficiency, if it exists, is one for legislative repair.
The former version of s 66 which we have quoted in [13] above, enacted at a time when there was no Information Commissioner, and no IC review, is quite different from the current provision. Paragraph 34 of the applicant’s written submissions seeks to make use of the explanatory memorandum, suggesting that the language of the explanatory memorandum may be resorted to, in the construction of s 66. In Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [31], [33] and [34], it was held that the proper procedure is first to consider the text of the provision and the provisions with which it interacts. It is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction. At [30] in Saeed, there is set out in the joint judgment of French CJ, Gummow, Hayne, Crennan and Kieffel JJ a statement in the explanatory memorandum and a statement of the Minister in his second reading speech, which were each inconsistent with what was held to be the proper construction of the text of the legislation, construed in accordance with the ordinary rules of statutory construction. In the result, the Court disregarded the explanatory memorandum and the second-reading speech, and that is what should be done with the explanatory memorandum in this case.
In any event we are by no means sure that the remark in the explanatory memorandum is inconsistent with what we believe to be the correct construction of s 66. To say that the provision is consequential may be only to say that a provision is necessary to account for the new layer of review. It may proceed on the basis that s 66 is self-explanatory.
To a similar effect is a passage in the judgment of the High Court concerning s 15AB of the Acts Interpretation Act 1901, in Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 ALR 416 at 420: Section 15AB does not permit reference to extrinsic materials for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable.
As we have indicated, we do not regard s 66 as ambiguous or obscure. Nor do we regard the result as manifestly absurd or unreasonable. It is true that the legislation might have been worded differently, of course.
As to the remark of Deputy President Thompson in Re Littlejohn and Department of Social Security, it is convenient to set out what was actually said in that case. At page 486 of the ALD report, the Deputy President said:
Where a particular question of law has had to be determined in respect of many different applications, and particularly where Tribunals differently constituted have expressed different views on that question, the President has exercised his power under s 20 of the AAT Act so that the question is considered by a Tribunal constituted by himself or another judge of the Federal Court sitting either alone or with other members of the Tribunal. The parties are then encouraged to argue the question fully in those proceedings and a fully reasoned decision on the question is given by the Tribunal as so constituted. While that decision is not binding on the Tribunal in future proceedings, it is nevertheless very highly persuasive.
We agree with those remarks.
The general rule in the Tribunal, which is in the interests of consistency, is that prior decisions of the Tribunal ought to be regarded as normative, unless they contain errors of fact or law, or are otherwise open to doubt. If a judicial Deputy President was involved in the earlier decision it will, no doubt, be harder for an advocate to persuade a later Tribunal that error affected the earlier decision.
We add that we see no error in paragraphs [35], [36] or [39] of the reasons for decision in ACF. We agree with those paragraphs. The application for the Tribunal to make a recommendation under s 66(1) of the Act is refused.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC, Mr S Evans, Member
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Associate
Dated: 14 August 2023
Date(s) of hearing: 17 July 2023 Counsel for the Applicant: Mr J Smith Solicitors for the Applicant: Mr F Varess, Varess Counsel for the Respondent: Mr G Johnson Solicitors for the Respondent: Mr I Duldig, Clayton Utz
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