Lawrance v Centrelink

The FOI Act 8 Section 15 of the FOI Act provides that subject to s 15A, a person who wishes to obtain access to a document of an agency may request access to the document. The request, must, inter alia, provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency to identify it. In s 4 of the FOI Act 'document of an agency' is defined so as to mean a document in the possession of an agency, whether created in the agency or received in the agency. Section 15A deals with requests for access to personnel records. 'Personnel records' are defined in s 15A(1) so as to mean documents containing personal information about an employee or former employee of an agency that are kept by the agency for personnel management purposes. If the agency has established procedures for access to those documents, then the employee must not apply under s 15 for access to those records unless he or she has made a request for access in accordance with the established procedures, and is either not satisfied with the outcome of the requests or has not been notified of the outcome within 30 days after the request was made. 9 Section 16(1) of the FOI Act provides: '(1) Where a request is made to an agency for access to a document and: (a) the document is not in the possession of that agency but is, to the knowledge of that agency, in the possession of another agency; … the agency to which the request is made may, with the agreement of the other agency, transfer the request to the other agency.' 10 Section 24A of the FOI Act provides: 'An agency … may refuse a request for access to a document if: (a) all reasonable steps have been taken to find the documents; and (b) the agency … is satisfied that the document: (i) is in the agency's … possession but cannot be found; or (ii) does not exist.' 11 Section 61 of the FOI Act places on the agency the onus of establishing that the decision given in respect of an FOI request was justified, or that the AAT should give a decision adverse to the applicant.

The AAT's decision 12 Senior Member Kelly identified as the issues for determination whether Centrelink has taken all reasonable steps to find the documents Ms Lawrance requested and whether or not they exist, as required by s 24A of the FOI Act. Senior Member Kelly prefaced her consideration of those issues with the following introduction: '10. To understand Ms Lawrance's case, it is necessary to know the background to her request. Her evidence was that a couple of people in 2000 and 2004 had told her that a former friend of hers (not employed by Centrelink) sent emails to her employer. She believed the email quite wrongly imputed to her psychiatric disorders. The employer was not specified. 11. Also, in 2002 a doctor told her that "Canberra needs a diagnosis" and in 2003 a doctor told her that a close relative of hers had been observing her. As a result of these remarks Ms Lawrance formed the belief that there was a possibility of an assessment of her or a program of some kind being carried out, or conditions being implemented in relation to her during her employment at the Administrative Law Section of Centrelink ("ALS"). She formed this belief some years after she had left Centrelink's employment.' 13 Ms Lawrance contended before the AAT that if a psychiatric assessment of her had been commissioned, such a sensitive document would not have been placed on her personnel file. There was evidence from Ms Garcia that if such an assessment had been obtained in relation to Ms Lawrance it would have been recorded in her own name and would be contained in her personnel file. Ms Lawrance contended that Ms Garcia's evidence was unreliable but the AAT made the following finding of fact: '22. I accept Ms Garcia's evidence in cross-examination that if there had been a program such as Ms Lawrance contends, the records would be on her personnel file. Further, the requests Ms Garcia made were for all information relating to Ms Lawrance, not just her personnel file and even if information were confidential, it would have been disclosed.' 14 A Commonwealth Medical Officer ('CMO') prepared a report in relation to Ms Lawrance when she joined the Public Service in 1986. Ms Lawrance told the AAT that she had received 'one page of it, not the whole thing' from the RRT, although the page which she received was not produced to the AAT for its examination. Ms Lawrance also told the AAT that she remembered that on the day of her examination she saw the CMO sign a two double page report. Ms Lawrance relied upon the failure of Centrelink to produce the CMO's report, or the balance of it, as evidence that it had failed to comply with its obligations under the FOI Act. 15 Ms Garcia gave evidence before the AAT that to her recollection the CMO reports were only about a page long and consisted of a series of columns with the option for the CMO to tick either yes or no although she could not specifically say whether she had ever seen a form that was used in 1986. Ms Lawrance disputed the evidence given by Ms Garcia. 16 The AAT made the following factual finding in relation to this issue: '23. Ms Lawrance gave evidence that certain documents had not yet been found and she did not believe that they did not exist. For example, she believed the medical report she had been given by the RRT was incomplete, and that the full report should be held by Centrelink, and that Mr MacDougall's reference for her appointment to the RRT should also be held by Centrelink. She saw the medical report in 1986 when she was appointed to the Commonwealth Public Service. I do not accept that her recollection is accurate, given the lapse of time and Ms Garcia's evidence that medical reports of that period were only one page. Mr MacDougall's evidence contradicted what Ms Lawrance said. He said that a reference he had provided would have been held by the RRT, not by Centrelink.' Mr MacDougall was a witness called by Ms Lawrance. The AAT found that his evidence did not support any aspect of her case. 17 The AAT expressed its conclusions in the following paragraphs: '25. Ms Lawrance's principal argument was that because certain documents were not provided to her, all reasonable steps had not been taken to find the documents she had requested. On the evidence as set out above, I do not accept that is so for the following reasons: · documents relating to various subjects to which her request related would have been in her personnel file which was transferred to the RRT; · if there were documents relating to her otherwise held by Centrelink, they would have been disclosed by the searches Centrelink carried out; that is established by the fact that documents were found and were provided to her as set out in the decision of 17 March 2004, although Ms Lawrance said they were not what she had asked for; · her belief that certain documents must exist, including e-mails, relating to assessments, programmes or conditions of work affecting her, e-mails from a friend to her employer and information provided to or from family members, is purely speculative; that documents satisfying the requests were not found does not persuade me that the searches undertaken by Centrelink were inadequate. There is no evidence to which I attribute significant weight that supports Ms Lawrance's belief; · given the speculative nature of Ms Lawrance's belief, it is not reasonable for Centrelink to carry out further searches for the material requested. All reasonable steps have been taken. 26. There were two further matters relevant to this argument which I did not understand Ms Lawrance to press at the hearing, but which I address for completeness. The first is a suggestion that Centrelink ought to have made inquiries of past employees and of people who were not employees. Ms Lawrance referred to paragraph 104 of Langer and Telstra Corporation Ltd [2002] AATA 341 which mentioned that Telstra officers "pursued a number of leads", "that they have contacted officers involved in the proposal to become a participant in the RDN-CRC in order to obtain documents held by them or to ascertain the location of documents they once held". I do not understand this to be authority for the proposition that Ms Lawrance put. Rather, the paragraph refers to current employees whose positions have changed over time. 27. Further, in my opinion s 24A(a) does not require such inquiries to be made in this case. The documents that must be provided are those in the possession of the agency. Ms Garcia's evidence was that all the former employees ceased employment before January 2001. It would be unreasonable to require Centrelink to search for the individuals involved. Further, whether any assistance would be provided if an individual were found is uncertain. This is particularly so in this case where Ms Lawrance's belief about a programme or conditions of employment and the involvement of former friends and colleagues which would have led to the creation of documents, is not supported by evidence to which I attribute any significant weight. 28. No authority was brought to my attention to support a proposition that inquiries must be made of people who were not employed by the agency and there is nothing in the Act to support such a proposition. 29. The second matter that Ms Lawrance did not press was that Centrelink had to obtain its records which had been transferred to the RRT, as Ms Lawrance requested on 24 March 2004. Centrelink stated in its response of 8 April 2004 that the decision-maker had no authority to access that file "as it is now the property of the Refugee Review Tribunal". There was no evidence or legal argument to refute that statement. Further Ms Lawrance's request was transferred to the RRT pursuant to s 16 of the Act. The RRT was relevantly in possession of the file and Centrelink had no right to it. In my opinion, the issue of "possession" which arose in cases referred to by Ms Lawrance, including Beesley v Australian Federal Police [2001] FCA 836 and the cases discussed in that decision, are not relevant. Centrelink did not have to "repossess" the material it had created. It acted appropriately in referring the request to the RRT pursuant to s 16. The authorities relied upon do not address the situation where documents have been transferred to another government agency in accordance with the practice of Commonwealth agencies and where pursuant to s 16 of the Act, the request under the Act has been transferred to that other agency. 30. Ms Lawrance's second argument was that I ought not be satisfied that the documents do not exist. The first matter that needs to be mentioned although not addressed by either party, is the meaning of "exist" in s 24A(b)(ii) because it is clear that Ms Lawrance's personnel records from her time of employment with Centrelink and its predecessors do "exist" in the possession of the RRT. I have found no authorities on this question. In the context of s 24A and the scheme of the Act, including ss 4 and 16, it is my opinion that the term is limited to documents that are in the possession of the agency. 31. I am satisfied on the evidence that the documents requested and to which access has been refused, relevantly do not exist.'

The Federal Court proceedings 18 Ms Lawrance filed a Notice of Appeal from the decision of the AAT as well as a Supplementary Notice of Appeal. The respondent filed written submissions contending that the Supplementary Notice of Appeal did not identify any proper question of law for determination. In response, Ms Lawrance filed an Amended Supplementary Notice of Appeal which identified 13 questions as being the questions of law raised on the appeal. Those questions, and my decision in relation to them, are as set out in succeeding paragraphs.

Question 1 19 Question 1 is as follows: '1. In refusing to adjourn the hearing to obtain or ascertain evidence from other witnesses in FOI proceedings such as Andrea Howard, did the AAT breach the rules of procedural fairness and fail to apply s 39 of the Administrative Appeals Tribunal Act? Sullivan v Dept of Transport (1978) 1 ALD 383 Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at 8.' 20 The decision of the Full Court in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 establishes that a denial of procedural fairness is an error of law, and, therefore, an appeal from a decision of the AAT on the grounds of such a denial raises a question of law within s 44(1) of the AAT Act. There were a number of proceedings instituted by Ms Lawrance in the AAT in relation to requests which she had made under the FOI Act and a summons had been issued by Ms Lawrance for Andrea Howard to appear in one of those proceedings which was to be heard after the present proceedings. There is no suggestion that the summons had been issued to Ms Howard to attend to give evidence in the present proceedings. A study of the transcript recorded at pp 123, 124 and 127 of the appeal papers indicates that either Ms Lawrance did not make an express request for an adjournment of the present proceedings in order to call Ms Howard to give evidence, of if she did, that was not a request which she pursued. The matter was left upon the basis that if something later turned up which was relevant to the present proceedings then Ms Lawrance could make an application to reopen her case. There was no clear statement to the AAT of the evidence which Ms Howard could give which would be relevant to these proceedings and Ms Lawrance stated that she did not know whether Ms Howard could give relevant evidence. In those circumstances, there was no procedural unfairness in the AAT proceeding to determine the application for review upon the basis of the materials which the parties had placed before it: cf Day v Lynn (2004) 138 FCR 300.

Question 2 21 Question 2 is as follows: '2. Did the AAT breach the rules of procedural fairness by: (i) not clarifying during the hearing the identity of the respondent; (ii) by its perverse and irrational approach towards the issue of how to deal with the enquiries, suggested of Dr Montgomery, and of Dr Pickles; (iii) by interrupting the applicant's introduction and the presentation of her case and by its argumentative approach in the issue of the applicant giving evidence as a witness; (iv) by accepting undocumented, oral evidence as to Centrelink personnel practices from the person who had been the respondent's advocate if preliminary conferences and who had never worked in personnel; (iv) by not, in accordance with accepted practice and s 61 of the Freedom of Information Act, requiring the respondent to provide a Schedule of Correspondence or index of documents, nor of documents alleged to have been transferred under s 16 of the FOI Act.' 22 The decisions the subject of the application for review were decisions of Centrelink, hence Centrelink was appropriately joined as a respondent in the proceedings. In a letter dated 18 October 2004 from the Australian Government Solicitor ('the AGS') to the Registrar of the AAT it was stated that the AGS had been instructed by the Secretary, Department of Family and Community Services to act on behalf of the respondent in this matter. In the pages of the transcript reproduced at pp 86 and 87 of the appeal papers, the Senior Member raised with the parties whether the appropriate agency was Centrelink or the Department of Family and Community Services. There was some inconclusive discussion of this issue involving both Ms Lawrance, and the solicitor for the respondent, Ms Pownall, but the discussion petered out, with neither party asking the AAT to do anything in particular. In those circumstances, there was no obligation on the AAT to pursue the matter further on its own initiative and it was entitled to proceed upon the basis that Ms Lawrance's application was properly constituted insofar as the parties to it were concerned. 23 Ms Garcia said that she had not made any enquiries of Dr Montgomery (whom Ms Lawrance asserted was the source of her information in 2003 that her sister was 'observing' her) or of Dr Pickles (whom Ms Lawrance asserted was the source of her information in 2002 that 'Canberra needs a diagnosis'). Ms Lawrance suggested to Ms Garcia during the course of her evidence that enquiries should be made of Dr Montgomery and Dr Pickles, a suggestion which Ms Garcia resisted and which was not taken up. 24 It is implicit in Question 2(ii), that the AAT was obliged to pursue this matter further. It was not for the AAT to arrange for enquiries to be made or for searches to be conducted. The AAT's role was to determine whether all reasonable steps had been taken to find the documents identified in the original request (bearing in mind that the original request referred to arrangements which may have been entered into around 1998 or 1999 whilst Ms Lawrance was employed in the ALS), and if not so satisfied to set aside the decision made under s 24A of the FOI Act and remit the matter to the respondent. The AAT addressed that question, but answered it adversely to Ms Lawrance. No breach of the rules of procedural fairness is established by reason of the AAT having disposed of the issue in this way. 25 I have read the whole of the transcript of the proceedings before the AAT. There is no substance in the complaint made in Question 2(iii). The AAT's 'approach' to the issue of Ms Lawrance giving evidence as a witness was neither argumentative, unconventional or improper, as the Senior Member explained to Ms Lawrance that there was a difference between giving evidence and making submissions, and that if evidence was to be given it was to be given from the witness box. Ms Lawrance eventually gave a limited amount of evidence, which is recorded in the pages of the transcript at pp 48-49 of the appeal papers. 26 Question 2(iv) refers to the evidence of Ms Garcia. The assessment of that evidence was a matter for the AAT. Ms Garcia was cross-examined by Ms Lawrance and some of the evidence of which Ms Lawrance complains was elicited by her in the course of that cross-examination. There is no breach of the rules of procedural fairness in accepting the evidence of a witness. Whether, as a matter of fact, that evidence should have been accepted, does not give rise to a question of law. 27 The matter raised in Question 2(v) does not give rise to a breach of the rules of procedural fairness. The 'accepted practice' referred to in Question 2(v) has not been established. There is no substance in the complaint that Ms Lawrance was denied procedural fairness because the AAT did not require the respondent to provide the schedule or index referred to in the question.

Question 3 28 Question 3 is as follows: '3. Was there evidence to support the AAT's conclusion of fact at para 23 that the applicant's 1986 CMO report, created upon her recruitment to the Australian Public Service (24 November 1986), was only one page long? Did the AAT apply s 61 of the FOI Act in making its finding? Parks Holdings P/L v CEO of Customs [2004] FCA 820 at paras 62 and 66 Telstra v Slater [2001] FCA 149 at para 48 Duncan v Hotop [2004] FCA 274, at paras 9 & 10 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, per Deane J at 368.' 29 The AAT's conclusion was sustained by Ms Garcia's evidence and by its non-acceptance of Mr Lawrance's recollection that in 1986 she had seen a four page document, given the lapse of time.

Question 4 30 Question 4 is as follows: 'Did the AAT have any evidence upon which to find that the applicant's recollection of the number of pages of the 1986 CMO report was not accurate "given the lapse of time"? Parks Holdings at paras 62 & 66 Telstra v Slater at para 48 Duncan v Hotop at para 9 ABT v Bond at 368 Dolan v Australian & Overseas Telecommunications Corporation (1993) 42 FCA 206, at 216 Jones v Dunkel (1959) 101 CLR 298 Browne v Dunne' 31 The assessment of the reliability of Ms Lawrance's evidence and the weight to be attributed to it was a matter for the AAT. The AAT did not have to have specific evidence directly on the point before the Senior Member could make the finding which she did. Whilst Ms Lawrance made statements to the AAT as to her recollection, those statements were not part of the evidence which Ms Lawrance gave having been affirmed to give evidence in the passages of the transcript reproduced at pp 48 and 49 of the appeal papers. In any event, the AAT was entitled not to be satisfied of the facts stated having regard to the passage of time and the other materials before it. The rule in Browne v Dunn (1893) 6 R 67 has no application to proceedings in the AAT: Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [56] - [57].

Questions 5 and 6 32 Questions 5 and 6 are as follows: '5. Did the AAT's treatment of the applicant's evidence as to the number of pages of the 1986 CMO report amount to a failure to take into account a material, relevant consideration?' Percerep (1998) 86 FCR 483, at 496 Duncan v Hotop at paras 9 & 10 Telstra v Slater at para 48 ABT v Bond at 368 6. Did the AAT take into account irrelevant considerations when it accepted the evidence of Andrea Garcia to the number of pages of the 1986 issue CMO report? Authorities as in (5).' 33 The AAT made a decision on a factual controversy adverse to Ms Lawrance. These questions seek to dress up an issue of fact as an issue of law, when there is no such issue.

Question 7 34 Question 7 is as follows: 'Was the AAT's decision so unreasonable that no reasonable decision-maker could have made it, or, was it so devoid of plausible justification that no reasonable person could have taken that course? Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 Percerep at 496 Duncan v Hotop at para 10 Norton v Comcare [2000] FCA 1068 at 20 (para)' 35 The AAT's decision is not devoid of plausible justification. The conclusion which the AAT reached was open on the factual findings which it made, and the findings which it made on factual controversies were in turn findings which were open to the AAT.

Question 8 36 Question 8 is as follows: 'Did the AAT fail to take into account a relevant consideration or material fact when it ignored the absence of any searches for documents from the Legal Services Branch of DSS by the respondent, in circumstances where the evidence indicated that it was that agency and not Centrelink which had been the repository of personnel records in 1997-1998?' 37 There was evidence from Mr McDougall that in 1997-1998 personnel records relating to Centrelink employees were held by the Legal Services Division of the DSS in Canberra. But this evidence leads nowhere, as the evidence established, and the AAT accepted, that the personnel records relating to Ms Lawrance were in the possession of the RRT. Further, the issue was whether all reasonable steps had been taken to find documents in the possession of Centrelink. The fact that some years before the FOI request was made, personnel records of Centrelink employees were held by the DSS in Canberra has no bearing upon the resolution of that question.

Question 9 38 Question 9 is as follows: 'Did the AAT fail to consider the case put by the applicant, and to deal with a discrete aspect of the applicant's case, when it stated that the applicant did not "press" the need to enquire of non-Centrelink employees, at para 26 of its reasons for decision? Wang v MIMA [2004] FCA 108 at para 87' 39 The AAT in fact addressed this aspect of Ms Lawrance's case in pars 26, 27 and 28 of its reasons for decision, although its understanding was that Ms Lawrance had not pressed the point.

Questions 10 and 11 40 Questions 10 and 11 are as follows: '10 Did the AAT take into account irrelevant considerations and/or fail to take into account relevant considerations and/or make a finding of fact without any evidence, when it found at para 22 of its reasons that, if there had been a Commonwealth programme in relation to the applicant, the records or documents would have been in the one and same personnel file as other personnel records? 11. Did the AAT fail to make findings in relation to all the material questions of fact in the matter as required under s 43(2B) of the AAT Act when it failed to make a finding as to whether or not a Commonwealth programme such as one pursuant to the Disability Services Act 1986 (Cth) had existed in relation to the applicant?' 41 Ms Garcia's evidence sustained the AAT's finding in par 22 of its reasons. The AAT's task was to determine whether reasonable enquiries had been made for documents. It was not obliged to make a finding as to whether or not a Commonwealth program had existed in relation to Ms Lawrance, although, on a fair reading of its reasons for decision, the AAT was not satisfied as to the existence of such a program because it assessed Ms Lawrance's contentions in this respect as 'purely speculative', and not supported by any evidence to which the Senior Member was prepared to attribute significant weight. 42 Whilst Ms Lawrance asserted that the evidence before the AAT indicated the strong probability of the existence of some sort of Commonwealth program having existed in relation to Ms Lawrance and her Commonwealth employment from around 1998, the AAT was not bound to accept that assertion. It was open to the AAT not to be convinced by Ms Lawrance's hearsay evidence as to what she had been told by Dr Pickles, or by her hearsay statements from the Bar Table as to what she had been told by Dr Montgomery. The Senior Member observed in the course of argument recorded at p 127 of the appeal papers that Ms Lawrance had not sought to call Dr Pickles for the purpose of giving evidence that she had provided some report to Centrelink which Centrelink had failed to produce. Question 12 43 Question 12 is as follows: '12. Did the AAT fail to make a finding in relation to a material question of fact as required under s 43(2B) of the AAT Act when it failed to make a finding as to whether or not a superannuation certificate recorded information about the applicant as a consequence of her 1986 CMO report?' 44 The AAT was not under any duty to make any findings about the existence and location of this particular document. On a fair reading of its decision, the AAT was satisfied that Centrelink did not have in its possession any documents relating to the appellant other than documents already produced to the appellant. Question 13 45 Question 13 is as follows: 'Did the AAT reach a decision devoid of plausible justification, in the Wednesbury sense, by, at paras 27 and 27 of its reasons, attaching "no significant weight" generally in relation to the applicant's evidence, with no adverse findings having been made in relation to the applicant's credibility, and no discussion or reasoning as to why "no significant weight" was attached to the applicant's oral and documentary evidence?' 46 As I have already indicated, it was within the province of the AAT to decide factual questions including its assessment of Ms Lawrance's evidence. It was open to the AAT not to be satisfied upon the basis of the materials provided by Ms Lawrance that some sort of Commonwealth program existed in relation to Ms Lawrance and her Commonwealth employment from around 1998. The AAT's assessment that Ms Lawrance's contentions in that respect were purely speculative is an assessment which it was entitled to make. Similarly, its assessment that Ms Lawrance's stated recollection that she saw the CMO sign a four page report some 18 years earlier was not accurate given the lapse of time and Ms Garcia's evidence, was one which the AAT was entitled to make. 47 The appeal should be dismissed. Ms Lawrance opposes the making of an order for costs on the grounds that this is an administrative law matter where the Commonwealth is clearly at fault. By embarking upon an appeal to this Court Ms Lawrance chose to go beyond the 'costs free' environment of the AAT. Ms Lawrance's claim against Centrelink has failed, and no sufficient reason has been shown for departing from the ordinary consequences of that failure in terms of costs. 48 I order that the appeal be dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Solicitor for the Respondent: Australian Government Solicitor