Adjourned to an administrative mention on 22 September 2017 by which date the parties are to advise the Tribunal in writing as to the further conduct of the proceeding.

1. On 30 October 2015, the applicant requested access to correspondence and other documents from, to, or passing between Ms Karen Batt or the Community and Public Sector Union Victoria and the Special Minister of State from 4 December 2014 until the date of the request.
2. A decision was not made within the timeframe set by section 21 of the Freedom of Information Act 1982 (the FOI Act) and was therefore a deemed refusal.
3. On 30 June 2016 the applicant applied to the Tribunal for a review of the deemed refusal decision.
4. Subsequently, a decision was made. The decision letter bearing that date was signed by Matthew Thompson, Freedom of Information Officer, Department of Premier and Cabinet. The letter contained the statement:

Please note that the Department of Premier and Cabinet has been appointed to process freedom of information requests on behalf of the Special Minister of State.

1. I am satisfied that the decision is in effect that of the Special Minister of State.
2. Order 2 of orders made by the Tribunal on 25 June 2016 reads:

At the request of the applicant the application shall be treated as an application for review of the decision of the respondent dated 18 July 2016.

1. An email from the Freedom of Information Manager of the Office of the Leader of the Opposition to the Tribunal set out documents to which the applicant continues to seek access. Paragraphs 6 and 7 of the email read as follows:
   1. Further, the applicant believes that additional correspondence exists between the Special Minister of State and Ms Karen Batt or the CPSU Vic, regarding redundancy and redeployment in the Victorian Public Sector, dated December 2014.
   2. This correspondence has not been provided, nor is it included as an exempted document in the document list filed by the respondent as part of the statement pursuant to s 49 of the Victorian Civil and Administrative Tribunal Act 1998 on 15 August 2016.
2. On 25 January 2017, orders by consent made in chambers commenced with the following:

The Tribunal notes that the applicant contends that VCAT's jurisdiction under s 50(1)(a) of the Freedom of Information Act 1982 to review a decision by a Minister refusing to grant access to a document in accordance with a request includes jurisdiction to consider whether the Minister has undertaken an adequate search for documents (the Jurisdictional question).

1. Procedural orders then followed concerning the determination of the jurisdictional question.
2. Further procedural orders were made. The jurisdictional hearing took place on 14 June 2017, following which written submissions were filed and served.
3. As a matter of procedural fairness I have considered all submissions including those filed out of time.

1. I am satisfied that the Special Minister of State is a 'Minister' within the meaning of the FOI Act.
2. Applications for review by the Tribunal are relevantly provided for by section 50(1) which reads as follows:
   1. Applications for review by the Tribunal

(1) Subject to this section, an applicant may apply to the Tribunal for review of -

(a) a decision of the principal officer of an agency or a Minister refusing to grant access to a document in accordance with a request;

(b) a decision of the Freedom of Information Commissioner refusing to grant access to a document in accordance with a request;

(c) a decision of the Freedom of Information Commissioner deferring the provision of access to a document;

(d) a decision of an agency refusing to grant access to a document in accordance with a request, if the Freedom of Information Commissioner has made a determination under section 49G(1) in respect of that request;

(e) a decision of an agency refusing to grant access to a document that is claimed to be exempt under section 28 or 29A;

(f) a decision under section 24 by the principal officer of an agency or a Minister deferring the provision of access to a document;

(g) a decision as to the amount of a charge that is required to be paid before access to a document is granted, whether or not the charge has already been paid by the applicant, if the Freedom of Information Commissioner has certified that the matter is one of sufficient importance for the Tribunal to consider.

1. Agency is defined in section 5 of the Act as a department, council or a prescribed authority.

Department is defined in section 5 as a department within the meaning of the Public Administration Act 2004 or an office or body specified in section 16(1) of that Act.

1. It is to be noted that section 50 of the FOI Act confers no specific power on the Tribunal to consider whether an agency or a Minister has undertaken an adequate search for documents.
2. The question of whether the Tribunal has jurisdiction to order agencies to conduct further search for documents within the scope of an FOI request was considered by Senior Member Proctor in Smeaton v Transport Accident Commission[1]. Paragraphs 33 to 49 of Senior Members Proctor's decision read as follows:
   1. Since 1999, VCAT, and before it the Administrative Appeals Tribunal of Victoria regarded the FOI Act as conferring jurisdiction for the Tribunal to order agencies to further search for documents within the scope of an FOI request.
   2. Relatively recent examples of VCAT 'employing' the jurisdiction include Friends of Mallacoota Inc v Department of Planning and Community Development (General) [2011] VCAT 1889, Tabcorp Holdings Ltd v The Secretary to the Department of Treasury and Finance (No 1) (Review and Regulation) [2013] VCAT 1234 and Tabcorp Holdings Limited v Secretary to the Department of Treasury and Finance (Review and Regulation) [2013] VCAT 1731.
   3. In Smeaton v Victorian Workcover Authority (General) [2010] VCAT 1264, I said, in my view VCAT must follow Victoria Police v Burton [1999] VSC 534 (16 December 1999). Hedigan J said it was open to the Tribunal to conclude that no sufficient searches had been done and that the claimed inability to discover the documents was in truth a refusal. Section 51 of the VCAT Act sets out VCAT's functions on review, including reviewing a refusal.
   4. The then FOI Act had relatively little to say about rights to challenge whether a government agency had conducted a thorough and diligent search for documents. Section 27(e) gave, in an indirect fashion, a right to complain to the Ombudsman:

where the decision does not relate to a request for access to a document that if it existed would be, an exempt document under section 28, 29A or 31 but the decision is to the effect that the document does not exist or cannot, after a thorough and diligent search, be located, inform the applicant of his right to complain to the Ombudsman

1. The then Act said nothing further on the topic. Section 50 conferred jurisdiction on VCAT. The 'old s 50' was relatively brief compared to the new s 50 (see below).
2. On 1 December 2102, the Freedom of Information Amendment (Freedom of Information Commissioner) Act 2012 amended the FOI Act to change the 'FOI scheme' in Victoria to among other things introduce the Freedom of Information Commissioner.
3. In my view, VCAT's jurisdiction to order an agency to search for documents, where the agency has already searched for documents, ended that day.
4. I agree with the reasoning set out in Smeaton. It should be noted that the decision referred only to an agency. The principles apply equally to a Minister.
5. The regime for dealing with complaints is set out in part VIA of the FOI Act. This regime was inserted by the 2012 Act referred to in Senior Member Proctor's decision. Section 61A(b) to (e) confers an entitlement to complain to the Freedom of Information Commissioner about actions taken or failed to be taken by a Minister. However, no reference is made to a Minister's decision that a document does not exist or cannot be located.
6. In the Second Reading Speech to the Bill of what was subsequently enacted as the 2012 Act, the Tribunal's ongoing role of conducting merit reviews of agencies' decisions was referred to. No reference was made to review of complaints about the administration of the Act.
7. In determining whether the Tribunal has jurisdiction to order further search for documents I am mindful of the object of the Act and the need not to view its provisions in a narrow manner. However, the Tribunal cannot arrogate jurisdiction where it is not given by an enabling statute, in this case the FOI Act. I am satisfied that the intention of Parliament is clearly and unambiguously reflected in the absence of conferral of jurisdiction on the Tribunal in relation to complaints and the consequent lack of jurisdiction to consider whether the Minister has undertaken an adequate search for documents. It follows that the Tribunal lacks the power to order further searches for documents within the scope of the FOI request.

[1] Smeaton v Transport Accident Commission (Review and Regulation) [2014] VCAT 341.