Duncan v Chief Executive Officer, Centrelink

THE STATUTORY SETTING 4 It is necessary to refer to aspects of the FOI Act and, briefly, to the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The FOI Act 5 The first of the enumerated means of effectuating the object of the Act is of some present relevance. Section 3(1)(a) provides: "(1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by: (a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices".

6 The circumstances revealed in this proceeding call into question Centrelink's past understanding and informed commitment to this aspiration, as also to Parliament's declared intention in s 3(2) that the provisions of the Act be interpreted so as to further the object of the Act. 7 Sections 8 and 9 of Part II of the Act require, in differing ways, the publication of certain documents and information. Only s 9 is of present relevance. Section 9(1) makes the section applicable to four enumerated categories of document provided a document in any of those categories is - "… provided by the agency for the use of, or are used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be entitled or subject". Section 9(2)(a) and (b) provide respectively that: "(2) The principal officer of an agency shall: (a) cause copies of all documents to which this section applies in respect of the agency that are in use from time to time to be made available for inspection and for purchase by members of the public; (b) cause to be prepared by a day not later than the relevant day in relation to the agency, and as soon as practicable after preparation to be made available, for inspection and for purchase by members of the public, at each Information Access Office, a statement (which may take the form of an index) specifying the documents of which copies are, at the time of preparation of the statement, available in accordance with paragraph (a) and the place or places where copies may be inspected and may be purchased". (Emphasis added.)

8 The s 9(2) obligation to make s 9(1) documents available is not unqualified. Relevantly for present purposes, s 9(4) does not require the making available of a s 9(1) document containing "exempt matter" (the term "exempt document" to which this refers is defined in s 4(1)), though it does require, where practicable, the making available of a redacted version excluding that matter. I would note in passing that, whether or not identifying a s 9(1) document itself involves the making of a decision - this is considered below - the making available of it necessarily involves a decision that it does not contain exempt matter: see Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 at 558. 9 Though only relevant as providing part of the context of s 9, s 10(1) of the Act is noteworthy as providing some legislative recognition that documents may not have been made available or included in a statement, despite the requirements of s 9. Section 10(1) provides: "10 Unpublished documents not to prejudice public (1) If a document required to be made available in accordance with section 9, being a document containing a rule, guideline or practice relating to a function of an agency, was not made available, or was not included in a statement made available at each Information Access Office, as referred to in that section, before the time at which a person did, or omitted to do, any act or thing relevant to the performance of that function in relation to him or her (whether or not the time allowed for publication of a statement in respect of the document had expired before that time), that person, if he or she was not aware of that rule, guideline or practice at that time, shall not be subjected to any prejudice by reason only of the application of that rule, guideline or practice in relation to the thing done or omitted to be done by him or her if he or she could lawfully have avoided that prejudice had he or she been aware of that rule, guideline or practice." (Emphasis added.)

The AD(JR) Act 10 The claim prosecuted now by Mr Duncan relates to s 13 of the AD(JR) Act. For present purposes it is sufficient to note that, subject to specified exceptions, s 13(1) provides that where a person makes a decision to which the Act applies, any person who is entitled to apply to this Court or to the Federal Magistrates Court under s 5 in relation to the decision may, by giving written notice to the decision maker, request that person to provide him or her a statement in writing setting out the findings on material questions of fact relating to that decision, referring to the evidence or other material on which those findings were based and giving reasons for the decision. 11 A person who is "aggrieved" by a decision to which the Act applies may apply for an order of review of that decision on the grounds specified in s 5 of the AD(JR) Act. I would note in passing that one of Centrelink's bases for opposing Mr Duncan's application is that Mr Duncan is not a "person aggrieved" for s 5 purposes, hence he was not entitled to make a s 13(1) request in any event. It is equally contended that the CEO (or his delegate) makes no "decision" for AD(JR) Act purposes when performing the function imposed by s 9 of the Act.

Other Matters 12 I earlier noted that the CEO did not, as s 13(3) of the AD(JR) Act requires, give Mr Duncan a notice that the CEO was of the opinion that he was not entitled to make his latter two requests. Absent such a notice Mr Duncan could not apply to this Court under s 13(4A) of the Act for an order that he was entitled to make a s 13(1) request. It would seem that for this reason, he has sought declaratory relief to the same end under s 21 of the Federal Court of Australia Act 1976 (Cth). Additionally, no reliance has been sought to be placed upon the provisions of s 7(2) of the AD(JR) Act. 13 It is common ground that the provisions of s 26 of the FOI Act (which relate to the provision of reasons for a decision refusing to grant access to a document to which access had been requested) is of no present relevance. I would note in passing that s 13(1) of the AD(JR) Act does not apply to such a refusal decision: see s 26(1A) of the FOI Act. 14 One final matter of statutory and jurisdictional significance that I should mention arises out of observations I made at the hearing of Centrelink's strike out motion. In giving Mr Duncan leave to file an amended application I expressed the view that what, possibly, he was seeking was an order that the CEO discharge the statutory obligation imposed by s 9. Relief to that end has not been sought in the present application. Rather the relief sought is the provision of a statement of reasons in relation variously to a decision that the FOI manual was not one to which s 9 applied and/or a decision to prepare a s 9(2)(b) statement which did not list all documents of the types enumerated in s 9(1).

Relevant Factual Background 15 Mr Duncan has been in dispute with Centrelink apparently, on several fronts, for some time prior to the alleged "decision" giving rise to his present claim. Despite his counsel's attempt to induce me to engage in some at least of the detail of those background matters, it is unnecessary for me to do so and I refrain from so doing. I need only refer to the following. (i) It is clear that Mr Duncan did not have the FOI Manual available to him for a period during which Centrelink took decisions that related to him. (ii) On 30 December 2005 he made a s 15(1) FOI request for the manual, noting in his request that this document was not available for inspection or purchase by the public. (iii) On 2 February 2006 that request was granted subject to the payment of a fee estimated to be $536.27. Mr Duncan did not act on that approval as such but sought further information concerning an aspect of the Manual. He subsequently indicated that he regarded the likely cost as prohibitive. (iv) He later made a request to have his personal records amended, that request in turn drawing attention to the fact that the FOI Manual had not been made available for inspection and purchase by the public under s 9 of the FOI Act. That request was refused, but was allowed on internal review, the review officer also indicating by letter of 21 July 2006 that pursuant to guidelines under s 9 of the Act, he would be able to inspect and purchase the FOI Manual. There is uncontested evidence that Mr Duncan claimed he did not receive this notification until 27 July 2006. For the purpose of this proceeding, I accept that such was the case. (v) On 25 July 2006 Mr Duncan wrote to the CEO asserting that the FOI Manual was prima facie a document required to be made available under s 9 of the FOI Act but that Centrelink had refused inspection of it on a number of occasions. Accordingly - "… in accordance with s.13(1) of the ADJR Act, I request that you 'furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision' by the 'principal officer of an agency' not to make Centrelink's FOI Manual available for inspection by 'members of the public'." (Emphasis in original.) (vi) On 1 August 2006 Centrelink published a statement, as required by s 9(2)(b) of the FOI Act, of publications it had made available under s 9 for inspection and purchase by members of the public. The statement did not include a reference to the FOI Manual. In an affidavit filed in this proceeding, Ms Terry, the officer whose responsibility it was to update Centrelink's s 9 statement, indicated that: "In preparing the section 9 statement I concentrated principally on documents relating to Centrelink's core business of assessing entitlements under social security legislation. I did not give close consideration to the need to include manuals and like materials in making decisions under the FOI Act and overlooked Centrelink's FOI manual which was not included." The 1 August 2006 statement equally did not specify where copies of documents in the s 9 statement could be inspected and purchased. Ms Terry's evidence on the compilation of this statement (which had last been published in October 2001) was that a minute was sent to approximately 78 Centrelink National Managers who were asked to identify documents within their branch responsibility that fell within the scope of s 9(1) but excluding "exempt matter": see s 9(4). From the responses made the August 2006 statement was prepared. I refer below to the different procedure adopted in respect of the 2007 statement. (vii) Centrelink provided Mr Duncan with a full hard copy of the manual on 8 August 2006 and waived all fees in respect of it. (viii) On 7 September 2006, Mr Duncan wrote to the CEO raising the issue of the non-inclusion of the FOI Manual in the 1 August 2006 s 9 statement. His facsimile closed as follows: "… in accordance with s.13(1) of the ADJR Act, I request that you 'furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision' that Centrelink's FOI Manual is not a document that is 'used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment,' or otherwise a document to which s.9 of the FOI Act 'applies.'" He returned to this theme in a further facsimile to the CEO of 13 September 2006 which stated (in part): "The purported section 9 statement of 1 August 2006 does not provide any information on the location where documents listed therein may be inspected or purchased[.] The purported section 9 statement of 1 August 2006 does not list all documents defined at s.9(1). For example, it unlawfully excludes documents by the application of the rule set out at para 2.800 of Centrelink's FOI Manual. In accordance with s.13(1) of the ADJR Act, I request that you 'furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision' pursuant to s.9(2) of the FOI Act by the principal officer of Centrelink to cause to be prepared a statement that does not list all documents defined by s.9(1), and does not state the location where listed documents may be inspected and purchased." It is this "decision" in particular which appears to be the primary (but not exclusive) subject of the present application. I will for the sake of completeness deal compositely with the "decision" alleged in each of his requests. (ix) Mr Duncan filed his original application on 11 October 2006. As later amended, it asked for the statements of reasons sought in his requests, noted above, made on 25 July 2006, 7 September 2006 and 13 September 2006. The evidence of Centrelink is that it has not furnished Mr Duncan with any statement of reasons under s 13(2) in response to any of his three requests. Centrelink, though, did notify Mr Duncan on 4 October 2006 that as he had been sent a copy of the FOI Manual on 8 August 2006 there was no basis for his request for reasons made on 25 July 2006. There is no evidence before me that any such courtesy was given him in relation to his two subsequent requests notwithstanding the requirement in s 13(3) that if the person on whom a request is made is of the opinion that the requesting party was not entitled to make it, written notification is to be given to that party. Not having received such a notice under s 13(3), Mr Duncan cannot avail of the right given to a person who has received a s 13(3) notice to apply to the Court under s 13(4A) for an order declaring that he was entitled to make the latter two requests. (x) In her affidavit filed on 2 November 2007, Ms Terry indicated that on 31 August 2007 an updated s 9 statement was published which included the FOI Manual. A covering note was subsequently added on 21 September 2007 which indicated that the documents in the statement were available for inspection and purchase from Centrelink offices. Unlike with the 2006 statement, and "[i]n order to provide a more comprehensive statement", the process adopted was exclusive not inclusive. The National Managers were asked to have identified any documents within their branch responsibility that should not be included in the s 9 statement and to provide reasons why those documents should be excluded. As Ms Terry observed this allowed her to rectify any omissions or errors that had been brought to her attention "including the omission of Centrelink's FOI manual from the earlier statement."

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.

Counsel for the Applicant: Mr R J C McCormack (Pro Bono)

Solicitor for the Respondent: Australian Government Solicitors