Lawrance v Chief Executive Officer, CRS Australia

REASONS FOR JUDGMENT Introduction 1 This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") from a decision of the Administrative Appeals Tribunal ("AAT") constituted by Senior Member Kelly dated 24 May 2005. On that date, Senior Member Kelly affirmed a decision of a delegate of the respondent ("CRS") made on 16 April 2004 refusing the applicant's request for documents made pursuant to s 15 of the Freedom of Information Act 1982 (Cth) ("FOI Act"). 2 The applicant filed a notice of appeal from Senior Member Kelly's decision on 7 June 2005. She filed a supplementary notice of appeal on 16 March 2006. 3 Whilst not opposed to the filing of the supplementary notice, CRS points out that many of the seventeen questions stated in the original and supplementary notice do not state questions of law; see TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [11]; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Limited (2003) 133 FCR 290 at [42]. 4 Most of the background facts, as well as the decision of Senior Member Kelly, have been set out in my judgment in matter NSD 55 of 2005, handed down contemporaneously with this judgment; see Lawrance v President, Administrative Appeal Tribunal [2006] FCA 342. 5 It is necessary to add only briefly to what I have already said about the background and the decision under appeal. Supplementary Background Facts 6 In her request for documents under the FOI Act dated 23 February 2004, the applicant explained that whilst she had "never been aware or conscious of having had CRS involvement in any aspect of my employment or my life", she came to believe "with hindsight" that there had been some sort of involvement. 7 At a time which is not precisely clear, but certainly by early 2004, the applicant came to believe that she has been the subject of a Commonwealth program administered by CRS under a contract or other arrangement with her various employers. She believes that the program has been provided under the Disability Services Act 1986 (Cth) ("DSA"), and includes non-consensual treatment and covert surveillance. She also believes that former friends, in particular Ms Beverly Smith ("Ms Smith"), a former CRS employee, have been involved in the program and have contacted the applicant's family. 8 The essence of the applicant's complaint is set out in a letter which she wrote to the President of the AAT on 28 April 2004. 9 The letter of 28 April 2004 includes the following:- "I had a friend, Bev Smith, who was coincidentally a CRS employee. I was told by a former friend Andrea Howard, in 1999 that 'Bev Smith was no friend to you', (she has never even met Bev Smith), a comment she refused to explain or elaborate on, and it has only been since that astonishing comment that I have had cause to reflect on exactly why that comment may have been made. I have never realized or imagined or known of any CRS activity in relation to my employment and it has been a great shock to wonder what on earth has been going on. Former friends who make that sort of comment, having had no connections with my employment or with Bev Smith, seem to indicate that there is much that Bev Smith has done which has been extremely devious, manipulative, dishonest and totally behind my back. This may also apply to Louise Perrottet, also a CRS employee and a social acquaintance known to me through Andrea Howard. They were friends at university but had not pursued a close friendship for years and had not been a part of any joint socialising since Andrea's wedding over fifteen or so years ago. Louise knew little other than what I told her (virtually nothing) of my employment and was certainly not a person to whom I would have discussed work related things with nor a person with whom I would ever have made a confidant of in that respect. I would never, ever have consented to her having any involvement whatsoever in my personal or employment affairs, being an independent, autonomous person who highly valued her privacy and who has no and had no disability or psychiatric disorder. Thus any involvement she may have had in my circumstances has been devious, behind my back, unethical and like Bev Smith, ultra vires the Disability Services Act (Cth) and in disregard of my rights to privacy and in breach of anti-discrimination legislation. This detail is all relevant as I am seeking access to records setting out all these womens' involvement in my employment, as they have done so in a professional capacity not in a social capacity (obviously) - as employees of CRS and/or similar organizations or in a similar capacity. Such conduct is not only the antithesis of friendship but is also unlawful and where it has occurred, has done so completely without my knowledge or consent. The records I am seeking access to thus include email records of the individuals concerned as well as all other records and documents. On 23 February 2004 I wrote to CRS Australia requesting full and comprehensive access to all records and documents of personal and health information, including all emails sent by and received from Bev Smith and Louise Perrottet and Anne Brimson and others, relating to my employment at Centrelink, the Department of Social Security, the SSAT and the RRT. I requested information that might be held electronically, including email records and the like. I also made it clear that although I have never ever qualified for CRS intervention - eg I have never met the criteria set out in s 18 of the Disability Services Act (Cth) 1986, nor have I ever had and nor do I have a disability, or a psychiatric disorder, it seemed apparent that CRS had indeed involved themselves at some stage in my employment." The Evidence before the AAT 10 Apart from the 'T' documents lodged pursuant to s 37 of the AAT Act, the AAT had substantial documentary evidence before it including:- · Two lengthy affidavits affirmed by the applicant on 28 July 2004 and 20 September 2004, the latter comprising 77 handwritten pages and a chronology; · An affidavit of Ms Janine Wood ("Ms Wood") of CRS affirmed 27 August 2004; · An affidavit of Ms Margaret Carmody ("Ms Carmody") of CRS affirmed 23 August 2004; and · CRS Client Service Charter and CRS Privacy and Personal Information Statement. 11 Oral evidence was given in the AAT on 1 November 2004 by the applicant, Ms Smith, Ms Perrottet, Ms Wood, Ms Carmody, and Ms O'Neill, who was a former member of the SSAT. 12 I have referred at some length to the evidence given by the witnesses at the oral hearing in my judgment in matter NSD 55 of 2005. 13 Briefly, the applicant gave evidence of her complaints, but Ms Smith and Ms Perrottet both denied having any dealings with the applicant in their official capacity as employees of CRS. They also denied any knowledge of, or any involvement by, CRS with the applicant. 14 Ms O'Neill was a Senior Member of the SSAT during the applicant's employment. She denied any knowledge of any arrangements in relation to the applicant under the DSA. 15 The evidence of Ms Wood and Ms Carmody deals with the services provided by CRS, that is to say that they are only provided consensually, and with the various efforts undertaken in attempting to find documents the subject of the applicant's request. They also dealt with the time it would take to manually review the electronic information held by CRS relating to Ms Smith. The FOI Act 16 The FOI Act relevantly provides as follows:- " 4 document of an agency or document of the agency means a document in thepossession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency. … 11 Right of access (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: (a) a document of an agency, other than an exempt document; or (b) an official document of a Minister, other than an exempt document. (2) Subject to this Act, a person's right of access is not affected by: (a) any reasons the person gives for seeking access; or (b) the agency's or Minister's belief as to what are his or her reasons for seeking access." 17 Section 15 provides:- "(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document. (2) The request must: (a) be in writing; and (b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and (c) specify an address in Australia at which notices under this Act may be sent to the applicant; and (d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory; and (e) be accompanied by the fee payable under the regulations in respect of the request." 18 Section 24A provides:- " An agency or Minister may refuse a request for access to a document if: (a) all reasonable steps have been taken to find the document; and (b) the agency or Minister is satisfied that the document: (i) is in the agency's or Minister's possession but cannot be found; or (ii) does not exist." 19 Under s 61 of the FOI Act, the relevant agency or the Minister to whom the request was made has the onus of establishing that the decision given in respect of the request was justified or that the AAT should give a decision adverse to the applicant. The decision of Senior Member Kelly 20 Senior Member Kelly made the following factual findings:- ● CRS does not collect or store an individual's sensitive personal or health information unless that person is a client, employee or contractor of CRS. ● Vocational rehabilitation is a voluntary process and such programs are provided in consultation with the client. The service would not be provided with the consent of a third party only. ● CRS Australia does not conduct surveillance; it is not an investigative agency. ● CRS has conducted searches as detailed in the evidence given by their witnesses. No records have been found relating to the applicant. ● Searches were also conducted of CRS' electronic archives to relevant e-mails and other documentation in relation to Ms Smith and Ms Perrottet. No records were found relating to Ms Perrottet. ● Electronic holding in relation to Ms Smith were located, including e-mail and other documentation amounting to 400 megabytes of material. A manual search would be required to determine whether any of the material was relevant. It would take four days to recover the material from IT services and, on a conservative estimate, 100 hours to review it. ● The relationship between the applicant and Ms Smith was purely one of friendship. Ms Smith was not involved in any activity relating to CRS activities in respect of the applicant. ● Apart from the applicant's belief, arrived at in hindsight, there is no other evidence to suggest any connection between CRS and the applicant. ● If CRS did hold documents or information about a program or service relating to the applicant, it would have been found by the searches already conducted. 21 Senior Member Kelly was satisfied that all reasonable steps had been taken to find the documents the subject of the applicant's request. The learned Senior Member went on to conclude that the documents did not exist. The Notice of Appeal 22 I will set out in full the fourteen questions stated in the Notice of Appeal as follows:- "1. Senior Member Kelly, an officer of the Commonwealth resumed the hearing of an adjourned case, and proceeded to publish a decision, in disregard of her status as a party to Federal Court proceedings NSD 55 of 2005 brought under s 39B of the Judiciary Act 1903, in which proceedings her conduct in this part-heard matter, and her refusal on 1 November 2004 to make s 35(2) directions under the Administrative Appeals Tribunal Act 1975, including non-publication are issues currently being dealt with: MIMA v Bhardwaj (2002) 209 CLR 597. 2. Senior Member Kelly's conduct and her decisions of 1 November 2004 and 24 May 2005, involve a denial of procedural fairness in a number of areas: Sullivan v Department of Transport (1978) 1 ALD 383; Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28; Quitlong v Australian Postal Corporation [2003] FCA 359 3. In reaching her decision Senior Member Kelly failed to take into account relevant facts and relevant considerations: Sullivan v Department of Transport (1978) 1 ALD 383; Hart v Herron [1984] Australian Torts Reports 80-201. 4. Senior Member Kelly has dealt with the application and reached a decision that is erroneous at law because she acted on the basis that the applicant is impaired or has a disability. There is no evidence before the Tribunal to demonstrate or prove that the applicant has an impairment, or a disability: Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208. 5. Senior Member Kelly has refused to provide the applicant with a reasonable opportunity to present her case, as is required under s 39 of the Administrative Appeals Tribunal Act, and under the common law: Sullivan v Department of Transport (1978) 1 ALD 383; Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208. 6. The Tribunal refused to continue to adjourn the hearing, at the applicant's request, and resumed it without any notification or consultation made to the applicant: Sullivan v Department of Transport (1978) 1 ALD 383; New York Properties P/L v Commissioner of Taxation (1985) 7 FCR 401. 7. The Tribunal refused, on 1 November 2004, to adjourn and deal with the non-attendance of witnesses who had been issued with a summons by the Tribunal to attend the hearing on 1 November 2004. Senior Member Kelly said that she did not know what to do in these circumstances: Sullivan v Department of Transport (1978) 1 ALD 383; New York Properties P/L v Commissioner of Taxation (1985) 7 FCR 401; Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208. 8. The Tribunal made a decision erroneous in law because it was so unreasonable that no reasonable person could have made it: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24. 9. The Tribunal refused to allow the applicant to determine the issues, and to present her case without interference: Sullivan v Department of Transport (1978) 1 ALD 383. 10. The Tribunal made mistakes of fact in disregard of the evidence, or in the complete absence of rationally probative and credible evidence, or on no evidence: Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208. 11. The Tribunal applied the wrong principles or did not apply any principles, in considering whether all reasonable steps had been made to locate documents under s 24A of the Freedom of Information Act 1982: Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208; Re Anti-Fluoride Association (1985) 8 ALD 163; Langer v Telstra Corporation Ltd [2002] AATA 341; Beesley v Commissioner of Police [2000] NSW ADT 52; Secretary, Department of Treasury & Finance v Kelly [2001] VSCA 26 18 VAR 427; Beesley v Australian Federal Police [2001] FCA 836; Re SRB and SRG (1994) 33 ALD 171. 12. The Tribunal is mistaken as to the scope and application of the Disability Services Act 1986 (Cth) in relation to CRS Australia: Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208 13. The Tribunal has failed to make findings on all the material and relevant questions of fact as is required under s 43 of the Administrative Appeals Tribunal Act 1975. 14. The Tribunal has proceeded to deal with the application and to reach a decision on the erroneous assumption that the applicant has consented to participate in a Commonwealth programme, or a Commonwealth - State arrangement under the Disability Services Act 1986 or some other Act. No such consent exists currently and no such consent has existed at any time in the past: Lombardo v Federal Commissioner for Taxation (1979)." The Supplementary Notice of Appeal 23 The supplementary notice of appeal added the following questions:- "15. The AAT did not ask the correct question or correctly identify the issues in dealing with the FOI matter, leading to jurisdictional error. This occurred when the AAT focussed only upon asking whether the applicant had ever been the subject of a CRS programme, instead of dealing with the applicant's case and asking whether the applicant had ever been the subject of a Disability Services Act1986 (Cth) programme: Yusuf (2001) 206 CLR 323 16. The AAT had no evidence for the findings of fact which it made in relation to: