CONSIDERATION
16 The decision (or decisions) the subject of this application can be, and has been, put in slightly different ways in Mr Duncan's requests and in the proceeding, although the essence of what he asserts is obvious enough. That decision was not to make the FOI Manual available when such was required by s 9(2)(a) and, hence, not to specify it in the s 9(2)(b) statement. The decision itself was manifested in the statement.
17 To be entitled to reasons in respect of that decision, Mr Duncan has to bring himself within the requirements of s 13(1) and thus of s 5 of the AD(JR) Act. In particular he must make out that he is (i) "[a] person who is aggrieved"; (ii) by "a decision of an administrative character made, or required to be made" under the FOI Act; (iii) for which he can apply for an order of review on one or more of the grounds specified in s 5(1) of the AD(JR) Act.
18 Subject to what I have to say below, I am prepared to assume for present purposes, that, given his apparently ongoing disputes with Centrelink, Mr Duncan has had a special interest in the proper performance of the statutory obligations imposed by s 9 above that of an ordinary member of the public: see Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 547-548; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 261; insofar as those obligations relate both to the making available of, and to including in the s 9(2)(b) statements, documents used in Centrelink's making decisions or recommendations concerning him. I am, in consequence, prepared to assume that he could have been "a person aggrieved" if, for the purposes of s 5(1) of the AD(JR) Act, the CEO had taken a "decision" to which s 5 applied: see Mark v Australian Broadcasting Tribunal (1991) 32 FCR 476 at 477.
19 I do not consider that Mr Duncan has, throughout, been acting simply as "an effective and faithful representative of the public interest in due administration of the [FOI Act]": Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 84; notwithstanding that he has made comments suggesting this in his affidavits. I would also note that s 10(1) of the FOI Act, to which I earlier referred, lends support to the view that a person could in fact be prejudiced by the reliance by a decision maker on a document not made publicly available, or included in the s 9(2)(b) statement, when making a decision in relation to that person.
20 Secondly, I am prepared to assume (a) that, subject to the s 9(4) exempt matter question, the FOI Manual was of such character that it ought to have been made available to the public and to have been specified in the 2006 statement as Centrelink, through Ms Terry's evidence, seems to accept; and (b) that its non-inclusion in the documents made available could found an application under s 5(1) of the AD(JR) Act by an aggrieved person, if such resulted from a decision of an administrative character made under an enactment.
21 For the reasons I will shortly give, I am satisfied that, in discharge of the s 9 obligations, a decision making process was adopted for which the CEO was responsible and that a decision of a type that was amenable to AD(JR) Act review was taken by Ms Terry for the CEO which resulted both in the omission of the FOI Manual from the documents made publicly available and in no reference being made to it in the statement.
22 However, notwithstanding the above, I am not satisfied that there would be any utility in granting the relief sought.
23 The respondent's contention is that the performance of the functions imposed by s 9 does not involve the making of a decision because it does not involve the determination of any application, inquiry or dispute, or the resolution of any issue and because it has no effect on Mr Duncan's rights or obligations or on those of any member of the public. I disagree with both contentions.
24 While requiring the CEO of Centrelink to procure two specified outcomes - i.e. the making available of documents under s 9(2)(a) and the preparation of a statement under s 9(2)(b) - the section does not in express terms confer any discretion upon the CEO as to what satisfies the requirements of the section. It simply requires that specified outcomes are to be produced. Neither does the section descend into the administrative processes and procedures to be employed to produce those outcomes. This is left to the CEO and to the administrative arrangements that are in place, or that are to be put in place, for the purpose. But when one has regard both to the terms of the s 9(1) and to the subject matter upon which s 9 works, it is, in my view, not open to serious question that the performance of the obligation imposed by s 9(2)(a) requires (i) the engaging in a process of inquiry and of fact finding leading to a determination as to whether or not a document satisfies the various criteria specified in s 9(1); and, relatedly, (ii) a determination whether that document, if it satisfies s 9(1), contains exempt matter and hence falls to be dealt with under s 9(4) of the Act.
25 I do not consider that it properly can be said that, s 9(4) apart, s 9(1) and (2) create a self-executing regime with the obligation to make documents available flowing directly from the "existence of facts falling within [s 9(1)]" and not from "a decision": cf Whim Creek Consolidated NL v Colgan (1991) 103 ALR 204 at 211 and the cases referred to therein; see also Aronson, Dyer and Groves, Judicial Review of Administrative Action, 61 ff (3rd ed, 2004).
26 The intent of s 9 is obvious enough. It is to have made publicly available for inspection and purchase documents having the characteristics prescribed in s 9(1), though subject (inter alia) to exceptions as in s 9(4). Moreover, it is mandatory in its requirement. The exceptions apart, no discretion is given as to whether documents having those characteristics will be made available, i.e. whether the s 9(2)(a) function ought be performed at all or in a given instance, but then a discretion is not the necessary requirement for a decision to which the AD(JR) Act applies: see s 3(1) "decision to which this Act applies". Provided a decision is of an administrative character required to be made under an enactment, that suffices: cf Peverill v Meir (1990) 95 ALR 401 at 421.
27 It is, in my view, improbable that Parliament intended s 9(1) as identifying objective facts on which s 9(2)(a) would operate rather than as setting criteria which, though largely factual in character, does involve deliberative evaluation and could give rise to questions of judgment and degree (e.g. was a document "used by the agency or its officers" in the manners specified and for the purposes specified). When coupled with the need to negative the operation of s 9(4) before making the determination to make a document available, s 9(2)(a) clearly required that a mental process be engaged in requiring the application of consideration to a variety of matters posed by the s 9(1) criteria and by the s 9(4) exception before reaching a decision which had its external manifestation in the s 9(2)(b) statement. That determination, in a practical sense, ordained whether or not a document would be made available for public inspection and purchase. I am not in this suggesting that there was a decision made under s 9(2)(b) to make available the statement specifying the s 9(2)(a) documents. That action itself did not emanate from a deliberative or reasoning process: cf Guss v Commissioner of Taxation (2006) 152 FCR 88 at [75], [82]. It was simply a routine mechanical (or ministerial) act that was required to be done. Rather, I am of the view that the s 9(2)(b) statement was the formal manifestation of the CEO's decisions as to the documents that were required to be made available under s 9(2)(a).
28 Further, the CEO's decision was "of an administrative character made under an enactment". Its object was the ascertainment of the documents which members of the public would be entitled as of right under the Act to inspect and purchase. In this its administrative character was obvious enough.
29 In Griffith University v Tang (2005) 221 CLR 99, Gummow, Callinan and Heydon JJ in commenting on the mirror "made under an enactment" formula of Queensland's Judicial Review Act 1991 (Qld), observed (at [89]):
"The determination of whether a decision is 'made … under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made … under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice."
(Emphasis in original.)
30 The statutory right presently in question was a right the FOI Act intended Mr Duncan to have as a member of the public. It was affected by the decision manifested in the non-inclusion of the FOI Manual in the 1 August 2006 statement. The travails he had in securing his statutory entitlement up until the decision to give him the manual evidence the possible significance of the right itself to a member of the public. He was denied that to which the Act gave him an entitlement.
31 Accordingly I would be satisfied that, but for the provision to Mr Duncan of the manual on 8 August 2006, and on the assumptions that I have been making, Mr Duncan would have been entitled to the declaration that he is now seeking, i.e. that he is entitled to the provision of a statement of reasons for the non-inclusion of the FOI Manual in the documents made available to the public under s 9(2)(a) of the Act, which was manifest in the 1 August 2006 statement. Nonetheless, as a matter of discretion, I am also satisfied that declaratory relief ought be refused.
32 The utility of the declaration as a species of relief is now well accepted. It equally is well accepted that it is neither possible nor desirable to fetter the exercise of this discretionary power by laying down rules as to the manner of its exercise: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437. Nonetheless, its exercise is confined by the considerations which mark out the boundaries of judicial power hence it must be directed to the determination of legal controversies and not to the answering of abstract, hypothetical, or moot questions or giving advisory opinions: Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 at 582; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355-356. An applicant must demonstrate a "real interest" in a "real question" the answering of which must produce some "real consequences for the parties": Forster at 437; and see generally Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 413-415.
33 Of immediately present relevance to the duty to provide reasons under s 13(1), the Court as a matter of discretion ought not, except in exceptional circumstances, make a declaration in relation to the entitlement to a s 13(1) statement where the decision to which the statement relates has been set aside, revoked or superseded: see United Airlines v Secretary, Department of Transport and Communications (1990) 26 FCR 598 at 607. The reason for this is that in such cases the "real question" will not relate to the failure to give reasons as such, but to the correctness or otherwise of an existing operative decision for which the reasons have been sought.
34 Having made all of the assumptions I have made in Mr Duncan's favour, he has not satisfied me that to make the declaration he seeks has real practical consequences. On 25 July 2006 he sought reasons for the decision not to make the manual available for inspection by members of the public. His complaint in substance, though, was that at that time he personally was aggrieved by the decision. On his making of that request, the CEO was likelihood bound to furnish that statement for the reasons I have given. I do not consider it necessary here to enter upon the question whether because of the decision of 21 July 2006 to give him the manual under s 9 he ceased to be aggrieved even though he was not aware of this decision until 27 June 2006, i.e. two days after he made his request for reasons. As with Hill J in United Airlines at 606-607, I incline to the view that duty once enlivened, was "not abrogated" by the later provision to him of the manual. What the later provision of the manual did, though, was to eliminate the substance of his grievance. He had been provided by the internal review officer - in accordance with his s 9 entitlement with the manual to which he claimed the right to inspect and purchase. Mr Duncan has put on extensive evidence alleging ongoing causes of grievance to him. His complaint now is essentially that Centrelink still has not identified all the documents falling within s 9(1). The present is not an application for preliminary discovery with all of the conditions required to be satisfied before "information discovery" is allowed: see St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at [26]. My sole concern, as ultimately was accepted at the hearing, was with the manual and its non-provision.
35 In respect then, of the 25 July 2006 request, I consider that, the manual having been provided, making the declaration sought in respect of that request would have no real practical consequences for the parties. It is regrettable but understandable that the decision taken to provide Mr Duncan with the manual was not communicated to Ms Terry so that its inclusion in the 1 August 2006 statement could possibly have been secured. Nonetheless, at the end of the day his right had been vindicated.
36 A distinct consideration illustrating the inutility of now granting declaratory relief in respect of the 2006 decision evidenced in the 1 August 2006 statement, is that that statement has been updated and varied in the 31 August 2007 statement. The manual is specified in that statement. The reasons for its non-inclusion in the 1 August 2006 statement now have no practical consequences.
37 What I have said above is sufficient to warrant my refusal of any declaratory relief in this proceeding. I would add, though, that consistent with what I have said about Mr Duncan being a person aggrieved when he made his 25 July request, I am not satisfied such was the case when, after being provided with it pursuant to s 9, he made his requests on 7 and 13 September 2006. By this stage, in my view, in all probability he was doing no more than asserting, as a member of the public, the public interest in the due administration of the FOI Act (a matter about which, for whatever reason, he clearly entertains suspicions). Hence he lacked standing to make an application for reasons under s 13(1) in respect of those two requests.
38 In reaching my conclusions on this matter, I have rejected much in the submissions of both parties. I will give them the further opportunity to make such submissions, if any, as they may wish to make on the question of costs.
39 I will order that the application be dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.