VKJY and Secretary, Department of Home Affairs (Freedom of information)

The Administrative Appeals Tribunal (AAT) considered an application for a costs recommendation under section 66(1)(a) of the *Freedom of Information Act 1982* (Cth). The applicant, VKJY, sought a recommendation that their costs of proceedings before the Tribunal be paid by the Commonwealth. The respondent was the Secretary, Department of Home Affairs. The dispute centred on whether the Tribunal had the power to make such a recommendation in circumstances where the applicant's matter had come before the Tribunal under section 57A(1)(b) of the Act, following a decision by the Information Commissioner under section 54W(b) to decline to conduct an Information Commissioner review.

The primary legal issue before the Tribunal was the proper construction of section 66(1) of the *Freedom of Information Act 1982* and, in particular, whether the power to recommend payment of an applicant's costs was enlivened when an application for review was made to the Tribunal under section 57A(1)(b). This section pertains to situations where the Information Commissioner makes a decision under section 54W(b) that a matter is inappropriate for an Information Commissioner review, and the applicant then applies directly to the AAT for review of the original agency decision. The applicant contended that the wording of section 66(1) was ambiguous and should be interpreted broadly to include applications made under section 57A(1)(b), consistent with the Act's purpose of minimising costs and promoting efficiency.

The Tribunal, applying ordinary rules of statutory construction, found the meaning of section 66(1) to be clear. It determined 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 made on an Information Commissioner review, which corresponds to section 57A(1)(a). Where, as in this case, the Information Commissioner makes a decision under section 54W(b), the matter comes directly to the Tribunal to review the original agency decision, not a decision made by the Information Commissioner on an IC review. In such circumstances, section 66(1) is not engaged, and there is no power to make a costs recommendation. The Tribunal rejected arguments based on extrinsic materials, such as explanatory memoranda, as it is erroneous to resort to such materials before exhausting the application of ordinary rules of statutory construction. The Tribunal noted that any perceived deficiency in the legislation was a matter for legislative repair.