Making a decision
20 Ms Bienstein sought to justify the central proposition of her argument, that each of the Attorney-General and the Minister for Home Affairs was and is required to make a decision on her request, in a number of ways. The one thing she could not do was to point to any provision of the FOI Act imposing a specific duty to make a decision. The effect of s 56(1) of the FOI Act is to treat a failure to make a decision within the 30 day time limit as a deemed decision to refuse to grant access to the document. There is no positive provision to the effect that a decision must be made within the 30 day period. The absence of such a provision tends to suggest that there is no enforceable right to have a decision made.
21 Ms Bienstein said that, once judgment had been given on her earlier applications to the Court, she expected that the Attorney-General and the Minister would each give a decision on her request for access to documents within 30 days. Why she might have expected this is not clear. The orders of the Court certainly did not purport to give rise to any such obligation. Once the Tribunal's decisions that it did not have jurisdiction to deal with Ms Bienstein's applications for review were set aside, each case was remitted to the Tribunal to be heard and decided again according to law. The orders clearly left the cases in the hands of the Tribunal, rather than in the hands of the Attorney-General and the Minister.
22 Ms Bienstein's argument placed heavy reliance on what she characterised as words of limitation in s 56(1) of the FOI Act, "for the purpose of enabling an application to be made to the Tribunal under section 55". Her argument was that deeming a decision refusing to grant access to documents to have been made for this limited purpose demonstrated a legislative intention not to substitute the deemed decision for an actual decision on the request for access to documents. Ms Bienstein drew attention to the contrasting terminology in s 30A(1B) of the FOI Act, in which a decision in relation to remission of an application fee "is taken, for all purposes of this Act" to have been made when the time limit expires. Similarly, Ms Bienstein pointed to s 25(5) of the AAT Act, under which a failure to do what is required "shall be deemed to constitute the making of a decision" at the expiration of the time limit. There are no qualifying words.
23 Ms Bienstein sought to construe s 56(1), in conjunction with s 58(1), of the FOI Act as conferring on the Tribunal power to review the failure of the recipient of a request for access to documents to make a decision, not to review a refusal to grant access to documents. Her argument was that the function of the Tribunal was to determine whether the Attorney-General and the Minister should have made decisions on her requests, rather than to review a refusal to grant access to the documents requested, there not having been any actual refusal.
24 Ms Bienstein asked rhetorically if the FOI Act contained no obligation on a Minister to make a decision, why would any Minister ever make a decision?
25 Ms Bienstein argued that if, for constitutional reasons, the Tribunal could not direct the Attorney-General or the Minister to make a decision in relation to her request for access to documents, because it lacked enforcement powers, the Court could nonetheless do so under the ADJR Act. This was the reason for the filing of the application under the ADJR Act. Ms Bienstein contended that there was no difficulty about that application being outside the time limit imposed by s 11(3) of the ADJR Act because, in the absence of an actual decision, there was no point from which time could begin to run.
26 Each of Ms Bienstein's arguments runs up against the problem of the absence from the FOI Act of any express obligation to make a decision on the part of a recipient of a request for access to documents. Instead of an express obligation to make a decision, there are two possibilities. One is that the recipient of the request will make a decision, in which case there is a right of review conferred by s 55(1) of the FOI Act (subject to any requirement of internal review imposed by s 54). If no decision is made, s 56(1), in conjunction with s 55(1)(a), gives rise to a right of review. The purpose of s 56(1) is clearly to provide to a person who has a right of review as a result of a deemed decision the same right as that given by s 55(1)(a) to a person who has a right of review as a result of an actual decision refusing to grant access to documents. In the case of a deemed refusal, it is not the failure to make a decision that the Tribunal reviews, but the refusal to grant access to documents that is deemed to have occurred. The closing words of s 56(1), "a decision refusing to grant access to the document", make this abundantly clear.
27 If authority be needed to support the proposition, it is found in Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301 at 306. In that case, the recipient of a request for access to documents had not made a decision within the 30 day period. The person making the request applied to the Tribunal for review of the deemed refusal. The Tribunal directed the recipient of the request to make a decision. The recipient did not comply with the direction, but filed an affidavit identifying documents as falling within the request. The Tribunal made a decision setting aside the deemed decision to refuse access by consent. It remitted the matter to the recipient of the request with a direction to grant access to certain designated documents. The question then arose as to whether the Tribunal should make a recommendation, pursuant to s 66 of the FOI Act, for the payment of costs of the proceeding in the Tribunal. The Tribunal declined to make a recommendation. The proceeding in the Court was an appeal from the decision to decline to make a recommendation for the payment of costs. On the appeal, at 305, Beazley J found that the Tribunal had identified what she described as "the second decision" as the relevant decision for its review. Her Honour then proceeded at 306 to hold that the relevant decision was the deemed decision refusing to grant access to the documents, not the decision to make the affidavit setting out the documents access to which was granted. In doing so, her Honour declined to distinguish Hounslow v Department of Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Sweeney J, 20 December 1985) on the basis that, in that case, there had been an actual decision to refuse access to documents. Her Honour said:
I do not consider the ground upon which counsel sought to distinguish Sweeney J's decision in Hounslow to be a relevant point of distinction. An applicant is in no different position in the case of a deemed refusal than in the case of a considered refusal. In each case, the applicant is not granted access to documents. In each case, the applicant has the right to apply to the Tribunal for review of the decision although the relevant factors on review will, of course, be different. In my opinion, subject to the respondent's s 56(5) submission, Sweeney J's decision in Hounslow applies to this case.
It is not entirely clear what her Honour meant by the proposition that the relevant factors on review will be different as between an actual decision to refuse access and a deemed decision to refuse access. In each case, the task of the Tribunal will be to make the correct or preferable decision on the material before the Tribunal. Cashman is clear authority for the view that the Tribunal's task in the case of a deemed decision to refuse access to documents is no different from its task in the case of an actual decision to refuse access.
28 This proposition disposes of another of Ms Bienstein's arguments in the present case. That is the argument that the making of a decision would have given the Tribunal the opportunity to look at the reasons for a decision to see if they complied with the FOI Act. In reviewing a decision of any kind, the function of the Tribunal is not to decide whether the reasons given by the original decision-maker are correct or adequate or appropriate. The task of the Tribunal is to make its own decision and to do so by starting afresh. This has been recognised since Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J.
29 A comparison of terminology between different statutes, or even between different provisions in the same statute, can sometimes be useful in determining the meaning of a statutory provision. Differences in terminology are not necessarily a reliable indicator of an intention to produce different results. There is a clear purpose behind the use of the words "for the purpose of enabling an application to be made to the Tribunal" in s 56(1) of the FOI Act. That purpose is to make it clear that it is not necessary for a person affected by a deemed decision to refuse access to documents to go through the internal review process for which s 54 provides. In the case of an actual decision to refuse access to documents, internal review under s 54 would be a prerequisite to an application to the Tribunal for review under s 55. In the case of a deemed decision to refuse, Parliament has obviously taken the view that it would be pointless to waste the time of a person requesting access to documents by requiring him or her to seek internal review of a decision that had not in fact been made. By contrast, the effect of the words "for all purposes of this Act" in s 30A(1B) would be to subject a deemed decision to refuse to remit an application fee to the same requirement of internal review as would be imposed in the event of an actual decision refusing to remit the fee. A comparison of these two provisions with s 25(5) of the AAT Act is of little value. The AAT Act is a general application. The specific provisions of the FOI Act would take precedence over the general provisions of the AAT Act in the event of conflict. Given that the specific words of both s 56(1) and s 30A(1B) of the FOI Act have identifiable purposes, any attempt to attach significance to the absence of qualifying words in s 25(5) of the AAT Act cannot succeed.
30 The argument that s 58(1) of the FOI Act gives the Tribunal power to review a failure to make a decision is not correct. Section 58(1) constitutes the conferral on the Tribunal of wide powers in a proceeding to review a decision or, as in the present case, a deemed decision. The conferral of a power "to review any decision that has been made" does not amount to the conferral of a power to review a failure to make a decision. For the Tribunal to attempt to review a failure to make a decision would be a distraction from the task of the Tribunal, which is to make the correct or preferable decision, on the material before it, in relation to the request for access to documents.
31 It is not to the point to ask why any Minister would ever make a decision if there is no obligation to do so. Doubtless, many Ministers do make decisions, because they see it as important to respond to requests for access to documents, rather than to allow the responsibility to be undertaken by the Tribunal on a review of a deemed decision refusing to grant access to documents.
32 The Tribunal was correct to determine, in its decision of 4 January 2008, that it had no power to direct the Attorney-General or the Minister to make a decision, but had jurisdiction to review the decisions deemed to have been made by the Attorney-General and the Minister to refuse Ms Bienstein's requests for access to documents. As the Tribunal recognised at [29] of its reasons for this decision, it had a power under s 42D of the AAT Act to remit a decision for reconsideration. If it had chosen to exercise this power, and remitted the relevant deemed decision to each of the Attorney-General and the Minister, each of them might have been motivated to make a decision. It is by no means clear that this would have occurred, because the advocate representing both the Attorney-General and the Minister had made it clear to the Tribunal at a directions hearing that neither proposed to make a further decision. This may have been a reason for the Tribunal refraining from exercising its power to remit under s 42D. In any event, that power is a discretionary one. The exercise of a discretion conferred on the Tribunal is immune from appeal to this Court unless it raises a question of law. The exercise of the discretion by the Tribunal in the present case does not raise a question of law. Similarly, the power given to the Tribunal by s 56(6) of the FOI Act to allow further time to deal with a request for access to documents involved a discretionary power. Neither that subsection nor s 56(5) of the FOI Act authorises the Tribunal to direct the making of a decision. As the Tribunal said at [31] of its reasons for decision of 4 January 2008:
Section 56(5) does not authorise the Tribunal to direct an agency or Minister to make a decision. It permits it only to facilitate the making of a decision should the agency or Minister wish to do so. Such further decisions are not infrequent and assist in narrowing the documents that are truly in issue between the parties.
33 For these reasons, the Tribunal was correct to hold that it did not have power to direct either the Attorney-General or the Minister to make an actual decision on Ms Bienstein's request for access to documents. The Tribunal dealt with the deemed decision to refuse such access, as it was obliged to do.