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[2009] AATA 800
Administrative Appeals Tribunal of Australia
2009-10-19
Original judgment source is linked above.
The applicant, Ms Gaye Luck, has asked for reasons for the decision to:
"... list the matter of my application for a review of decisions, made properly by me to the AAT pursuant to section 29 of the AAT Act 1975 on 16 July 2009 and for which I duly showed cause on 4 and 18 September 2009, that the application was valid and that the decisions were reviewable, for an interlocutory hearing to consider the AAT's jurisdiction to review my application and the decision that there is no obligation for the Respondent to provide me with section 37 documents prior to the interlocutory hearing."[1]
She has done so under of the (ADJR Act) in relation to decisions to list the matter for hearings to determine the Tribunal's jurisdiction to review decisions she states have been made under the (FOI Act) and to hold a directions hearing.
2. Although I did not make the decision to list the matter for the jurisdiction and directions hearings, I did decide that the matters raised in her letter of 18 September 2009 should be considered at that hearing. I will give reasons for both decisions for, in making the second decision I have, for all practical purposes, made my own decision that a hearing to explore whether the Tribunal has jurisdiction or power to review any decision of which Ms Luck seeks review should be held at this stage. Although I have given reasons, I have also explained why I believe that
Ms Luck is not entitled to them under s 13 of the ADJR Act.
3. On 16 July 2009, Ms Luck sent an application to the Tribunal by facsimile. That application refers to requests for access to documents that she has made to the respondent, the Department of Human Services (Department), on
20 January 2009, 9 and 16 February 2009 and 10, 23 and 24 March 2009. Ms Luck describes her first three requests as:
"... formal requests under sections 15 and 25 of the Freedom of Information Act 1982 (Cth) on 20 January 2009, 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009 and a formal request for internal review on 24 March 2009, to inspect the following documents at an Information Access Office at the nearest possible location to my home address: Documents as defined in Section 4 document (a-e) of Act caused to be published in accordance with Section 9(1)(a-d), (2), (3), (4), (5), (6), (7), (8), and (9) pertaining to the use of, or which are used by, Centrelink and the Department of Human Services and their officers in making decisions or recommendations, under or for the purposes of the enactments the Social Security Law ... [and other legislation] and related schemes administered by Centrelink and Department of Human Services, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which the applicant is or may be entitled or subject.
The decision of Department of Human Services to refuse the applicant access, following formal requests under sections 15 and 25 of the Freedom of Information Act 1982 (Cth) on 20 January 2009, 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009 and a formal request for internal review on 24 March 2009, to the 'Information and Communication Technology Security Policy', the 'Records Management 2006-2007: Discussion Points for Action Officer's Desks', the 'Protective Security Policies and Procedures' and the 'Fraud Control Plan: DHS Core - Interim Plan'.
4. Ms Luck also attached a copy of a letter dated 22 May 2009 signed by Dr Gary Rumble, General Counsel, in the Department. He wrote:
"I refer to your letter dated 20 January 2009 and to your requests since that date in which you sought access to the documents included in the statement made by the Department of Human Services (DHS) under section 9 of the Freedom of Information Act 1982.
I have enclosed a CD containing the documents (in PDF format) that are listed in the statement that DHS has been able to locate. The details of those documents are set out in Attachment A.
As a result of the delay in finalising your request, I have decided to provide you with the documents at no charge.
5. On 23 July 2009, a letter was sent on behalf of a Deputy Registrar of the Tribunal acknowledging receipt of Ms Luck's application and advising her that she would receive a bundle of documents from the respondent in the next 35 days. If she did not receive them, she was to let the Tribunal know.
6. On the same day, another letter was sent on behalf of a Deputy Registrar enclosing a copy of Ms Luck's application. It advised the Department that the Tribunal required two copies of documents, which it described. The documents it described are those required by s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act).
7. On 21 August 2009, lawyers engaged by the Department, the Australian Government Solicitor (AGS), wrote to the Tribunal advising that the letter from Dr Rumble did not appear to constitute a decision capable of being reviewed by the Tribunal under the Freedom of Information Act 1982 (FOI Act). In particular, it did not appear to fall within the categories of documents set out in s 55(1) of that Act. Furthermore, Dr Rumble's letter did not appear to review an earlier decision and so does not appear to be a reviewable decision for the purposes of the FOI Act. Even if Dr Rumble's decision were considered to be an original decision under the FOI Act, Ms Luck could not apply to the Tribunal for its review for s 55(2) would require her first to seek its internal review under s 54. In view of its concerns, the Department questioned the Tribunal's jurisdiction to review the decision of 22 May 2009. While it waited for the Tribunal to resolve the question of its jurisdiction, the Department would refrain from lodging the documents under s 37 of the AAT Act unless the Tribunal instructed it otherwise.
8. On 24 August 2009, a letter was written to Ms Luck for a Deputy Registrar of the Tribunal. The letter enclosed a copy of the AGS letter and noted that the Department "... has advised that it does not believe the AAT has the power to review the decision. ..." It asked her to write to the Tribunal within 14 days after receiving the letter to say why she thought that the Tribunal does have power to review the decision before going on to say:
"If we do not receive a response from you within the period specified above, the AAT is not required to take any further action in relation to your application.
If you provide the AAT with details of the review the AAT may hold a preliminary hearing to decide whether or not it can review the decision. You will be notified of the date and time of the hearing.
9. On 4 September 2009, Ms Luck wrote to the Tribunal stating in part:
"1. I have sought, on 16 July 2009 to make application under section 55(1) of the Freedom of Information Act 1982 (FOIA) a review of the decisions in accordance with section 25(5) of the AATA and pursuant to section 56(1) of the FOIA deemed to have been made on 19 February 2009 to refuse me access to the documents sought and requested under section 15 of the FOIA, firstly on 20 January 2009, followed by numerous other decisions subsequently deemed to have been made on 11 March 2009, 18 March 2009, 9 April 2009 and 22 April 2009, pursuant to section 56(1) of the Freedom of Information Act 1982 (FOIA) in response to my formal requests for access on 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009.
10. Attached to her letter of 4 September 2009 was a copy of a letter written to her on 18 March 2009 by Ms Susan Kirby when Acting as the Department's General Counsel. Ms Kirby referred to Ms Luck's request dated "... 20 January 2009 for documents not related to you (your first request) and held by the Department ...". She notified Ms Luck as required by s 26 of the FOI Act of her decision in relation to the request and notified her that the decision was made under s 24A. The decision was "... that DHS has been unable to locate the documents set out in your application. To the best of my knowledge the documents do not exist. ...". Attached to the letter was an attachment stating that the Tribunal could review the decision and advised how Ms Luck could go about seeking that review.
11. On 16 September 2009, the AGS wrote to the Tribunal referring to
Ms Luck's reference in her letter of 4 September 2009 to five decisions she claims are deemed to have been made and continues:
"The applicant also claims that she seeks review of the decision made in accordance with subsection 25(5) of the Administrative Appeals Tribunal Act 1975 and deemed made on 21 April 2009 pursuant to s 55(3) of the FOI Act to refuse an internal review requested on 24 March 2009. (We note that the decision of 21 April 2009 merely affirmed the original decision).
The applicant then states that 'it is quite clear' that she is not seeking review of the decision of 22 May 2009 by Dr Rumble and therefore the tribunal has jurisdiction to hear the matter.
Having regard to the applicant's response, it is unclear as to exactly what decision the applicant is seeking review of by the tribunal given that her application for review dated 16 July 2009 clearly refers to the 'decision' of
22 May 2009 as the relevant decision before the tribunal. She states in that application that Dr Gary A Rumble made the relevant decision and moreover, attaches Dr Rumble's letter of 22 May 2009 (and no other decision by the respondent) to her application. The applicant also refers to the decision of
22 May 2009 in her letter of 16 July 2009 enclosing the application for review.
Further, the application for review does not refer to any of the decisions referred to in her letter of 4 September 2009.
"(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Magistrates Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to 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.
(2) Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.
(3) Where a person to whom a request is made under subsection (1) is of the opinion that the person who made the request was not entitled to make the request, the first-mentioned person may, within 28 days after receiving the request:
(a) give to the second-mentioned person notice in writing of his or her opinion; or
(b) apply to the Federal Court or the Federal Magistrates Court under subsection (4A) for an order declaring that the person who made the request was not entitled to make the request.
(11) In this section, decision to which this section applies means a decision that is a decision to which this Act applies, but does not include:
(a) a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies;
(b) a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision; or
(c) a decision included in any of the classes of decision set out in Schedule 2."
13. A decision to which the ADJR Act applies, and so a decision to which s 13 applies:
"... means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):
(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or
(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;
(d) a decision included in any of the classes of decisions set out in Schedule 1."[2]
The meanings of an "enactment" include an Act.[3] The AAT Act is an Act and decisions under it are not excluded by paragraph (d) of the definition of a decision to which the ADJR Act applies.
14. The key words in the definition of "a decision to which this Act", meaning the ADJR Act, applies are that it is "a decision of an administrative character ... under an enactment ..." of the requisite sort. Those words have been considered in a number of cases but regard must be had at the outset to the judgment of the High Court in Griffith University v Tang.[4] That was a case in which Griffith University (University) had decided to exclude Ms Tang from a PhD candidature programme. Ms Tang applied to the Supreme Court of Queensland for review of the University's decision and had done so under the Judicial Review Act 1991 (Qld)
(JR Act). Under s 4 of that legislation, she could apply for that review if the University's decision was "a decision of an administrative character made ... under an enactment". As that was the same basis as judicial review could be sought under the ADJR Act, it was common ground between the parties that the considerations bearing on the meaning of the ADJR Act also applied to the JR Act.[5] Gleeson CJ and, in a separate judgment, Gummow, Callinan and Heydon JJ concluded that the decision had not been made under an enactment and, in particular, had not been made under the Griffith University Act 1998 (GU Act).[6]
15. Section 5 of the GU Act provided that the University's functions were to provide education at a university standard, facilities for encouraging study and research, providing courses of study and instruction and conferring higher education awards. Section 6 gave the University powers including those to enter contracts, acquire and deal with property, fix charges and other terms for the services it supplies, and do anything necessary or convenient in connection with its functions. The University's governing body is a Council and it was given powers to enable it to manage the University's affairs.[7] It might delegate its powers to an appropriately qualified committee.[8] The Council was empowered to make university statutes, which may cover, among other things, the admission, enrolment and disciplining of students and other persons undertaking courses, fees, and the making and notifying of university rules.[9] It had made none that was relevant to the matter before the High Court.
16. Gleeson CJ considered the relationship between particular aspects of University administration and the powers and obligations in the GU Act:
" There is nothing in the Griffith University Act which deals specifically with matters of admission to or exclusion from a research programme or any course of study, academic misconduct, or intra-mural procedures for dealing with issues of the kind that arose in the case of the respondent. The powers that were exercised in establishing policies and procedures relating to research higher degrees, academic standards, investigation of alleged academic misconduct, and exclusion from programmes, all appear to flow from the general description in s 5 of the Griffith University Act of the University's functions, the general powers stated in s 6 and the general power to do anything necessary or convenient in connection with those functions, and the powers of the Council as the University's governing body, including its powers of delegation."[10]
17. His Honour was careful to point out that the structure of the GU Act is common to many pieces of legislation in which institutions are established, their functions described and powers conferred upon them but that:
"... It does not follow that any administrative decision made in the exercise of those powers is a decision made under the relevant enactment for the purposes of the ADJR Act, or legislation expressed in the same terms."[11]
18. The question that must be asked is this: "Would it have been a decision that took its legal force or effect from statute?"[12] The answer Gleeson CJ gave in this passage from his judgment:
"... [T]he legal effect of an otherwise lawful decision to terminate a relationship, contractual or voluntary, may be described accurately and sufficiently as a termination of the relationship, even if the statutory or other context in which the relationship exists confers particular benefits, or potential benefits, upon one of the parties.
So far as appears from the evidence, the relationship between the appellant and the respondent was voluntary. Neither party was bound to continue in the relationship, although the respondent would have had a legitimate expectation that certain procedures would be followed before the appellant terminated the relationship. The Griffith University Act provided the legal context in which the relationship existed. The Higher Education (General Provisions) Act also provided part of the wider context. On the other hand, the decision of the appellant, which was to terminate that relationship, was not a decision which took legal force or effect, in whole or in part, from the terms of either statute."[13]
" ... The question in the present case turns upon the characterisation of the decision in question, and of its legal force or effect. That question is answered in terms of the termination of the relationship between the appellant and the respondent. That termination occurred under the general law and under the terms and conditions on which the appellant was willing to enter a relationship with the respondent. The power to formulate those terms and conditions, to decide to enter the relationship, and to decide to end it, was conferred in general terms by the Griffith University Act, but the decision to end the relationship was not given legal force or effect by that Act."[14]
19. In their judgment, the majority also concluded that the University's decision was not "a decision of an administrative character ... under an enactment ...". While noting that "... there are dangers in looking at the definition as other than a whole ...",[15], their Honours did divide the expression into its three components: "The first is 'a decision'; the second, 'of an administrative character'; and the third, 'made ... under an enactment'."[16] They considered each element and concluded, among other matters, that each of the elements involves:
"... a question of characterisation of the particular outcome which founds an application for review under the statute. Questions of characterisation provide paradigm examples of the application of the precept that matters of statutory construction should be determined with regard to the subject, scope and purpose of the particular legislation, here the Review Act.
Again, a matter may 'arise under' a law made by the Parliament within the meaning of s 76(ii) of the Constitution if the right or duty in question owes its existence to federal law or if it depends upon federal law for its enforcement;... this is so notwithstanding that the action in question is brought, for example, for breach of a contract or to enforce a trust. ..."[17]
21. A line of Federal Court authorities relating to the ADJR Act, the majority observed, had noted that a "decision of an administrative character made ... under an enactment" must be a decision either required or authorised by an enactment but must be more than that.[19] It must be more than that if it is to be given "... that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved ...".[20] The majority answered the question of what more is required:
" The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? ... To adapt what was said by Lehane J in Lewins [Australian National University v Lewins[21]], does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?
If the decision derives its capacity to bind from contract or some other private law source, then the decision is not 'made under' the enactment in question. ...
... [A] statutory grant of a bare capacity to contract does not suffice to endow subsequent contracts with the character of having been made under that enactment. A legislative grant of capacity to contract to a statutory body will not, without more, be sufficient to empower that body unilaterally to affect the rights or liabilities of any other party. The power to affect the other party's rights and obligations will be derived not from the enactment but from such agreement as has been made between the parties. A decision to enter into a contract would have no legal effect without the consent of the other party; the agreement between the parties is the origin of the rights and liabilities as between the parties."[22]
22. In summary, the way in which to consider whether a decision has been
" 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."[23]
23. Applying the general principles to the University's decision in relation to Ms Tang, the majority concluded:
" The decisions of which the respondent complains were authorised, albeit not required, by the University Act. The Committees involved depended for their existence and powers upon the delegation by the Council of the University under ss 6 and 11 of the University Act. But that does not mean that the decisions of which the respondent complains were 'made under' the University Act in the sense required to make them reviewable under the Review Act. The decisions did not affect legal rights and obligations. They had no impact upon matters to which the University Act gave legal force and effect. The respondent enjoyed no relevant legal rights and the University had no obligations under the University Act with respect to the course of action the latter adopted towards the former."[24]
24. The Tribunal only has the jurisdiction or power to review a decision if it is specifically given the power to do so by either the AAT Act or another enactment. This is the effect of s 25 of that Act. Although it was once different, the AAT Act no longer specifies particular decisions in relation to which an application may be made to the Tribunal. Reference must now be made other legislation to find whether it provides that an application may be made to the Tribunal to review decisions made in the exercise of powers given by it. Once a provision of that sort is found, the Tribunal has power to review it because s 25(4) of the AAT Act provides that:
"The Tribunal has power to review any decision in respect of which application is made to it under any enactment."
25. Ms Luck's application to the Tribunal is concerned with matters relating to the FOI Act. The FOI Act is an enactment that contains provisions to the effect that an application may be made to the Tribunal. It does not provide that such an application may be made for review of all decisions made under it. Instead, it provides that an application may be made to the Tribunal for review of particular decisions it describes.
26. In the briefest outline, the decisions can be described in this way. An application may be made for review of any of the ten decisions described in s 55(1) if the person making the application has applied under s 54 for a review of the decision, a period of 30 days has elapsed since the day on which the application was received by the agency concerned and the person has not been informed of the result of that review. If the person has applied under s 54(1) and has been informed of the result of that review, he or she may only apply to the Tribunal for review of the decision made on that review by the agency. In addition to these decisions, a person may also apply to the Tribunal for review of certain decisions that an agency or Minister is deemed to have made. An agency or Minister is deemed to have made a decision in relation to a request for access to a document under the FOI Act if, in summary, 30 days have passed since the agency or Minister received the request and the person has not received a notice of a decision. That is the effect of s 56. The 30 day period may be
a longer period if that period, which is mentioned in s 15(5)(b) of the FOI Act, is extended according to s 15(6).
27. It follows from the nature of the Tribunal's power that, if the Tribunal has jurisdiction or power to review the decisions, or any of them, to which Ms Luck refers, they must fall within one or other of the categories I have described in the previous paragraph. In order to work out whether they do, I must know whether
Ms Luck seeks review of all of the decisions to which she has referred. If she does not seek review of all, I must know of which decisions she does.
28. Once I have identified the decisions, I must decide whether they are decisions in relation to which an application for review may be made to the Tribunal. In making this decision, I am aware that I cannot determine the Tribunal's jurisdiction in the sense in which a court can determine it as a legal question. I must, however, look to the law to understand what power the Tribunal is given so that I can ensure that I make a decision that does not go outside the power that it is given by the law.
I must make a decision of that sort when I review a decision and I must do so when
I decide whether the Tribunal has been given power to review a decision. Decisions that I make of this sort are administrative decisions and not determinative of the law as are those of a court such as the Federal Court.
29. The difference was explained by Gyles J in Yilmaz v Minister for Immigration and Multicultural Affairs[25] in relation to the powers of the Refugee Review Tribunal (RRT). There is no difference between the RRT and the Tribunal in this regard for both are merits review tribunals. Gyles J said:
"... Whilst collateral legal issues may need to be considered, the RRT is established to conduct a review on the merits. The statutory role of the RRT is to stand in the shoes of the decision-maker, and make the correct or preferable decision on the materials before it at the time of decision. It is given no jurisdiction to determine its own jurisdiction or to decide any legal question."[26]
The Migration Review Tribunal is also a merits review tribunal. In Kim v Minister for Immigration and Citizenship,[27] Tamberlin J explained that:
"The fact that the [Migration Review] Tribunal may in some circumstances have to make an administrative determination as to its jurisdiction does not mean that it can make a binding legal decision as to whether it has jurisdiction or not."[28]
30. Not every decision made under the FOI Act is a decision that comes within one or other of the decisions described in ss 54, 55 or 56. Putting aside the decision relating to a refusal to amend personal information or to annotate a personal record in accordance with an application under s 48,[29] every other decision in relation to which an application for review may be brought under the FOI Act is either expressly or implicitly premissed on their having been a request for access to a document under s 15(1). It is express in s 55(1)(a), (aa) and (ab) for each describes various decisions granting or not granting access "in accordance with a request".
The word "request" is defined in s 4(1) to mean "... an application made under subsection 15(1)". It is implicit in ss 55(1)(b) and (f) for the first refers to a decision to defer provision of access to a document and the latter to a decision to grant access in a particular manner. Neither decision can be made without there first having been a request. The same can be said for ss 55(1)(d) and (e). They provide that an application may be made in relation to the imposition or amount of a charge in the former case and in relation to the remission of the application fee in the latter.
In either case, there must first have been a request for access to a document under
s 15(1) before the matter of charges or an application fee could have been raised at all. Section 55(1)(c) refers to a decision refusing to allow a further period for making an application under s 54(1) for review of a decision. An application cannot be made under s 54(1) otherwise than where a decision has been made in relation to a request to an agency and that decision has been made otherwise than by the responsible Minister or the agency's principal officer. For the purpose of enabling a person to make an application to the Tribunal under s 55, s 56 deems the principal officer or the Minister to have made a decision refusing to grant access if that person has made a request under s 15 and has not received notice of a decision within 30 days or such further period as extended under the FOI Act.
31. Section 15(1) of the FOI Act provides that "... 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." That wording mirrors the right that a person has to
obtain access to documents. The right is found in s 11:
"(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."
32. The expression "document of an agency" means "... a document in the possession of an agency ... whether created in the agency or received in the agency."[30] An "official document of a Minister" is the subject of a more expansive definition in s 4(1) but it is not relevant to refer to it as Ms Luck has not sought access to such a document.
33. Even if a document comes within the description of a "document of an agency" so that a person appears to have a right to have access to it provided it is not an exempt document, that is not necessarily the case. Section 11, which gives the right of access, is found in Part III of the FOI Act. That right is qualified by s 12 which provides that "A person is not entitled to obtain access under this Part ..." (i.e. Part III), to documents that are described in ss 12(1) and (2) as qualified by ss 12(3) and (4).
34. Among the documents so described is "a document that is available for purchase by the public in accordance with arrangements made by an agency."[31] That provision immediately brings to mind s 9 found in Part II of the FOI Act. That section:
"... applies, in respect of an agency, to documents that are 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, being:
[being documents of the sort described in (a) to (d)]
but not including documents that are available to the public as published otherwise than by an agency or as published by another agency."
35. Section 9(2) requires the principal officer of an agency to take three steps in relation to those documents. I will refer only to the step specified in s 9(2)(a). It requires the principal officer of an agency to:
"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."
36. It follows from these provisions that Ms Luck will not have a right to apply to the Tribunal for review of a decision under the FOI Act and the Tribunal will not have jurisdiction or power to review that decision unless:
37. As that is the case, I must be able to identify the decision of which she seeks review. If I cannot identify it, I do not know whether it is a decision in respect of which Ms Luck may make an application to the Tribunal for its review.
38. The usual way in which I identify whether the Tribunal has jurisdiction is by examining the decision of which review is sought. If the terms of the decision were recorded in writing and set out in a document given to the person applying for review, the person must lodge it together with the application for review. That is required by s 29(1)(d) of the AAT Act.
39. When I look to Ms Luck's application, I find attached to it a letter signed by Dr Rumble and dated 22 May 2009. Apart from letters of her own to the Department, that is the only letter that she has attached to her application. In attaching that letter and in describing the decision of the Department in her application in the manner she has,[33] a question arises as to whether her request for access was in fact for documents that are the subject of s 9 of the FOI Act. If it is, then the Tribunal will not have jurisdiction for the reasons I have explained above.
In summary, those documents are not the subject of the right of access given under Part III of the FOI Act and so are not documents that may be the subject of a request for access under s 15(1). As they cannot be the subject of a request for access, decisions made in relation to them cannot be reviewed by the Tribunal.
40. I am not limited, however, to examining Ms Luck's initial application alone. I can look also to any supplementary material that she may submit or that the Department may submit. At one time, a member of the Tribunal might talk to an applicant in the presence of a representative of the agency whose decision might be under review in order to ask him or her for any such material. If that was not done,
a Deputy Registrar might ask for the material. Unless that material satisfied the Tribunal that it had jurisdiction, it would convene a hearing to hear submissions from both the person applying for review and the Department or agency he or she said had made a reviewable decision. It did so under its implicit power to make an administrative decision as to whether a matter came within its jurisdiction.
41. Either of these courses may still occur but the AAT Act now provides a more formal means by which additional material is obtained. It is found in s 42A(4) of the AAT Act:
(a) a person makes an application to the Tribunal for a review of a decision; and
(b) the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable;
the Tribunal may dismiss the application without proceeding to review the decision."
42. On its face, s 42A(4)(b) could be read as casting a burden on the person seeking review of a decision. The burden is to show that the decision is reviewable. If the person does not show that the decision is reviewable, the Tribunal has the power to dismiss the application. On its face, therefore, s 42A(4)(b) does not require the Tribunal to consider the matter on its merits in light of its own knowledge or enquiries or on the basis of information provided by the agency whose decision might be under review.
43. That interpretation appears to me to be inconsistent with the role of
a tribunal that is entrusted with reviewing decisions on their merits, reaching the correct or preferable decision and, except in the rarest of cases, doing so without applying a burden of proof.[34] The better interpretation seems to me to be that, if the applicant does not point to the enactment that provides that an application may be made to the Tribunal for review of the decision concerned, the Tribunal has power to dismiss the application but it is not required to dismiss the application. All that it has is a power to dismiss the application but, whether or not it does so, is at its discretion.
44. The Tribunal's discretion is not without its limits. It should be assumed to know the limits of its jurisdiction. Therefore, it must take into account both the extent and limits of its jurisdiction in the form of the enactments which confer jurisdiction upon it and the decisions it may review. It must have regard to the information given by the applicant and any information provided by the decision-maker. It may need to talk with the person seeking review and, as it must act with procedural fairness, it must give the decision-maker or the decision-maker's representative concerned an opportunity to be present at the same time. Quite apart from considerations of procedural fairness, there is a practical reason for wanting the decision-maker or that person's representative to be present in any but the most obvious cases. That person may well have information that is vital in resolving the jurisdictional issue because it will have records of any dealings between it and the person seeking review.
45 This is a case in which I am not clear as to the decision Ms Luck seeks to have reviewed. As I said earlier, she attached a copy of a letter from Dr Rumble to her application to the Tribunal. Her letter in response to the letter sent on behalf of the Deputy Registrar referred to decisions that she said were deemed to have been made. Despite Ms Luck's attempt to assist me, I am still confused as to the decision or decisions of which she seeks review. My lack of clarity is not, in my view,
a proper ground on which to exercise the discretion given by s 42A(4) to dismiss her application because she has, in my view, "... been unable to show that ... the decision is ... reviewable." The better course is, in my view, to hold a hearing so that I can ask Ms Luck and the Department's representative for information and submissions that may help me to identify with some precision the decision or decisions of which she seeks review. I will then be able to have regard to that information in deciding whether or not there is a decision that is reviewable by the Tribunal. This is my reason for deciding to hold that hearing.
46 My deciding to hold a hearing is an administrative decision. It is not, however, a decision made under an enactment. Certainly, s 33(1)(a) of the AAT Act provides that:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal".
47. The word "proceeding" is defined in inclusive terms in s 3(1). Among the meanings it is said to include are an application to the Tribunal for review of
48. Section 33(1)(a) gives the Tribunal wide power to decide how it will deal with any application or matter that it must resolve. Its discretion is limited only by the need to observe procedural fairness and to ensure that the procedure is appropriate to the proceeding. Section 33(1)(a) gives me power to make the decision that I have in this matter. In view of the judgments of Gleeson CJ and of the majority in Griffith University v Tang, the fact that I have made the decision in the exercise of a power given under an enactment does not mean that my decision has been made under an enactment. My decision does not affect confer, alter or otherwise affect legal rights or obligations of anybody and, in particular, not those of Ms Luck or of the Department. It is simply a decision to hear what she and the Department have to say.
49. It is arguable that, were Ms Luck to fail to appear at the hearing of the hearing relating to jurisdiction and so at a "proceeding", I would have power to dismiss her application for her failure to appear at "a directions hearing, or an alternative dispute resolution process under Division 3 [of Part IV], held in relation to the application, or at the hearing of the proceeding."[38] That would be a consequence of her failure to appear and of any subsequent decision I should make to exercise the power. The power is discretionary and its exercise is not mandatory. Any dismissal would not be a consequence of those two further events and not a consequent of my deciding to hold the hearing of the proceeding in the first place.
50. As my decision does not affect confer, alter or otherwise affect legal rights or obligations of anybody, I have decided that it is not a decision under an enactment. Consequently, it is not a decision to which the ADJR Act applies and so not one to which s 13 applies. I have no obligation to provide reasons although I have already given them in any event.
51. I note that the decision that I make at or after the hearing will be a decision to which s 13 of the ADJR Act applies. That will be a decision whether the Tribunal has jurisdiction to review the decision or decisions of which Ms Luck seeks review or I will not. Although not legally determining the Tribunal's decision, it will clearly be a decision that affects legal rights. It will do that for it will either permit Ms Luck to proceed with an application in the Tribunal or it will not or it will permit her to proceed only in relation to some of the decisions of which she may be seeking review and not others.[39]
52. My reasons for making the decisions are set out in paragraphs [38]-[45] above.
I certify that the preceding fifty two paragraphs are a true copy of the reasons for the decision herein of
Signed: .......................................................................
[1] Letter from Ms Luck to the Tribunal dated 24 September 2009.
[3] ADJR Act, s 3(1) paragraph (a) of the definition of "enactment"
[5] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [3];105; 725; 629; 290 per Gleeson CJ
[10] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [8]; 106-107; 726; 630; 291
[11] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [11]; 107; 727; 630; 292
[12] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [17]; 110; 729; 632; 294
[13] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [19]- [20]; 110-111; 729-730; 632; 294-295
[14] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [23]; 111-112; 730; 633; 295
[15] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [60]; 121; 738; 638; 303
[16] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [59]; 121; 738; 638; 303
[17] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [64]- [67]; 123-124; 740; 639-640; 304-305. "The meaning of the constitutional term 'matter' requires some immediate right, duty or liability to be established by the court dealing with an application for review under the ADJR Act ...": at [90]; 131; 746; 644; 311
[18] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [68]; 124-125; 741; 640; 305
[19] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [78]; 128; 743; 642; 308
[20] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [79]; 128; 743; 642; 308
[21] (1996) 68 FCR 87 at 96-97, 101-3; 138 ALR 1 at 9-11, 14-16
[22] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [80]- [82]; 128-129; 744; 642-643; 308-309
[23] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [89]; 130-131; 745; 644; 310-311
[24] [2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 79 ALJR 627; (2005) 82 ALD 289 at [96]; 132; 747; 645; 312
[26] [2000] FCA 906; (2000) 100 FCR 495 at [89]; 515 per Gyles J
[34] McDonald v Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6 at 10 in which Woodward J said:
"... There is certainly no legal onus of proof arising from the fact that this is an 'appeals' tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT (not the material before the administrator, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's. ...".
" It is possible to imagine a case where the Act which the administrator is applying places a requirement or onus on one or the other of the parties to an issue to establish a particular state of facts on which the administrator's decision would be based. If that were so, the same requirement or onus would apply before the AAT. ..."
[35] Paragraph (a) of the definition of "proceeding" in AAT Act, s 3(1)
[36] Paragraph (h) of the definition of "proceeding" in AAT Act, s 3(1)
[37] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[39] Section 43(2) of the AAT Act obliges the Tribunal to give reasons when it has reviewed a decision. That obligation does not extend to a decision of a preliminary sort such as deciding whether the Tribunal has jurisdiction, whether to make a stay order under s 41 or whether to make a confidentiality order under s 35.
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99; 213 ALR 724; 79 ALJR 627; 82 ALD 289
McDonald v Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6
Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495
(2005) 221 CLR 99
(1979) 24 ALR 577
(2000) 100 FCR 495
(2005) 213 ALR 724
(2005) 79 ALJR 627
(1996) 68 FCR 87