McEwan v Australian Health Practitioner Regulation Agency (General) [2012] VCAT 1741

1. This application is dismissed due to lack of jurisdiction.
2. No order as to costs.

1. In March 2012, Mr McEwan made an FOI Request to the Australian Health Practitioner Regulation Agency (AHPRA) for,

a copy of the redacted minutes of the meeting of the Physiotherapy Board of Australia (the Board)" and "a copy of the form furnished to the Board by Ms [Catherine Anne] Whitty for the renewal of her 2011-2012 Physiotherapist Registration which states her residential and business address.

1. After Mr McEwan paid the application fee and third parties were consulted, on 27 June 2012 AHPRA refused access to documents under the Freedom of Information Act 1982 (Cth)(Cth FOI Act). It advised Mr McEwan of his right of internal review under the Cth FOl Act. Mr McEwan did not seek internal review under the Cth FOl Act, the time for which has now passed.
2. Instead, on 23 July 2012 he lodged an application for review with VCAT. An issue arose within VCAT as to whether it had jurisdiction to decide the application for review. On 10 September 2012, VCAT directed its principal registrar to accept the application. AHPRA then received notice from VCAT of the application for review.
3. On 21 September 2012, AHPRA sent a letter to Mr McEwan, saying he had not sought an internal review and saying AHPRA would consider a late internal review request. Mr McEwan did not accept that invitation, which AHPRA later revoked.
4. On 22 October 2012, VCAT held a directions hearing in this proceeding. AHPRA successfully sought an order dismissing the proceeding for lack of jurisdiction, because VCAT does not have jurisdiction where a first FOI decision has been made and the applicant does not seek internal review.
5. For Mr McEwan's information and because the application raises novel issues concerning AHPRA, the Cth FOI Act and VCAT, I give these written reasons. They are based on careful analysis by Mr M. Batskos, Solicitor, FOI Solutions, with which I agree. The references to the 'legislative maze' are mine.

1. AHPRA operates nationally, by way of each Australian state and territory adopting model laws. Speaking broadly, to achieve national consistency concerning access to documents it holds, it had been made subject to the Cth FOI Act across Australia. However, the power to decide disputes arising with respect to FOI requests is conferred on state bodies. In Victoria, the state body is VCAT. I describe the steps to reach this conclusion.

AHPRA, as it operates in Victoria, is subject to the Cth FOI Act, as it was before 1 November 2010

1. To discover that AHPRA as it operates in Victoria is subject to Cth FOI Act, as it was before 1 November 2010, requires a journey through a legislative maze.
2. The maze consists of the:

1. Health Practitioner Regulation National Law (Victoria,) Act 2009 (Vic) (the Victorian Act); 2. Health Practitioner Regulation National Law (the National Law);

1. Health Practitioner Regulation National Law Act 2009 (Qld);

1. Health Practitioner Regulation National Law Regulation 2010 (Vic) (the National Law Regulation); 2. Freedom of Information Act 1982 (Cth)(the Cth FOI Act) as it was before 1 November 2010; and 3. Freedom of Information Amendment (Reform) Act 2010 (Cth).
2. AHPRA, as it operates in Victoria, is subject to Cth FOI Act, as it was before 1 November 2010, because:

1. Under section 4 of the Victorian Act, from 1 July 2010 the National Law as it is set out in the Schedule to the Act, applies as a law of Victoria, as if it was a part of the Victorian Act. 2. The National Law appears as an appendix to the Victorian Act. AHPRA is established by section 23 of the National Law as "the National Agency".

1. Under section 7 of the Victorian Act, the Freedom of Information Act 1982 (Vic) does not apply to the National Law or to instruments made under the National Law. Given that AHPRA is established under the National Law, the Victorian FOI Act does not apply to AHPRA.

1. Under section 215 of the National Law, the Cth FOI Act, as modified by the National Law Regulation, applies as a law of Victoria for the purposes of the national registration and accreditation scheme, of which AHPRA is a part. 2. Regulation 15 of the National Law Regulation provides that the Cth FOl Act applies as if it was modified to only apply to agencies including AHPRA, a National Agency. 3. The Cth FOl Act applies with a number of amendments including "any other modifications that are necessary" (see Regulation 16(j), National Law Regulation). 4. Therefore, any request for access to documents made to AHPRA under FOI must be made and dealt with under the Cth FOI Act as amended or modified by the National Law and the National Law Regulation, but also as if any amendments made by the Freedom of Information Amendment (Reform) Act 2010 (Cth) had not taken effect. 5. Therefore, the FOl law which applies is the Cth FOl Act as it existed immediately before the amendments which took effect from 1 November 2010 as a result of that amending legislation. (All following references to the Cth FOl Act are to that Act as it existed before 1 November 2010).

1. To discover that VCAT has jurisdiction takes us further into the maze:

1. The regulations under the National Law Regulation are permitted to amend the Cth FOl Act to confer jurisdiction on a court or tribunal of Victoria (see Section 215(3)(c), National Law). 2. By section 6 of the Victorian Act, VCAT is declared the responsible tribunal for Victoria for the purposes of the National Law.

1. Further, Regulation 16(e) of the National Law Regulation provides that the Cth FOI Act applies as if a reference to the Administrative Appeals Tribunal ("AAT") was a reference to "a relevant tribunal" and as if the Administrative Appeals Tribunal Act 1975 (Cth) did not apply.

1. In Victoria, VCAT is the relevant tribunal, established under the VCAT Act (see Regulation 17(h), National Law Regulation). 2. Therefore, VCAT has jurisdiction concerning AHPRA's decisions applying the Cth FOI Act, as it existed before 1 November 2010, subject to conditions set out in that Act.

1. The Cth FOI Act requires an applicant to seek internal review before he or she may apply to VCAT (or any other relevant review body) for review.
2. Section 55 of the Cth FOl Act says,

Subject to this section, an application may be made to the ... Tribunal for review of:

(a) a decision refusing to grant access to a document in accordance with a request...

...where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review."

1. Section 54 of the Cth FOI Act sets out that an applicant, by application in writing to the agency accompanied by any application fee in respect of the application, is entitled to seek internal review of the decision within 30 days[1] of being notified of a decision about a freedom of information request. The types of decisions in respect of which internal review may be sought relevantly include:

...where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being:

(a) a decision refusing to grant access to a document in accordance with a request.

1. The words "subject to this section" in section 55(1) of the Cth FOI Act means that a person's right to make an application for review is qualified by other provisions of section 55. One of the qualifications is that the decision of which review is sought must be a decision that the agency made after the applicant has made an application for internal review under section 54. It cannot be the initial decision (see Deputy President Forgie in Re Maksinovic and Commonwealth Director of Public Prosecutions [2007] AATA 1993 at para 11).
2. Therefore, by a combination of these provisions, VCAT does not have jurisdiction to decide an application for review of a decision to refuse access to documents where internal review had not first been requested under section _5_4 of the Cth FOI Act (see French J in Duncan v Administrative Appeals Tribunal [2004] FCA 1258 at para 32).
3. This 'internal review requirement' is similar to the same requirement under section 51(2) of the Freedom of Information Act 1982 (Vic) (see Borthwick and University of Melbourne (1985) 1 VAR 33).

1. In the present proceeding, Mr McEwan made an FOI request to AHPRA. AHPRA refused access at first instance and informed Mr McEwan his internal review right. Mr McEwan did not exercise that right before applying to VCAT. Therefore, under section 54 of the Cth FOI Act, VCAT does not have jurisdiction to entertain his application for review.
2. Therefore, I dismissed Mr McEwan's application under section 75 of the VCAT Act on the basis that it is "misconceived" in that it is outside VCAT's jurisdiction.

1. AHPRA sought orders that Mr McEwan pay its legal costs of and incidental to this proceeding.
2. Mr Batskos submitted this was appropriate because before the directions hearing he had by letter advised Mr McEwan of the issues discussed above, invited him to withdraw his application and warned if he did not and the application was dismissed, AHPRA would seek costs.
3. Section 109 of the VCAT Act relevantly says,

(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(v) attempting to deceive another party or the Tribunal;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(e) any other matter the Tribunal considers relevant.

1. I dismissed the costs application. After considering the criteria set out in section 109(3), I do not regard it as fair that I order Mr McEwan to pay the costs sought. As a self-represented person, he cannot be expected to make an informed decision about VCAT's jurisdiction, in the context of the legislative maze he faced.

[1] Or such further period as the agency allows: section 54(1A), Cth FOI Act.