Administrative Appeals Tribunal Act 1975 ss. 25, 26, 27, 29, 33 to 38, 40 and 43

Safety, Rehabilitation and Compensation Act 1988

Re Murtagh and Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313

Re Edelsten and Australian Federal Police [1985] AATA 350; (1985) 4 AAR 220

Toren and Minister for Immigration and Ethnic Affairs [1994] AATA 10058

Re The Environment Centre of the Northern Territory Incorporated and the Department of Environment, Sport and Territories [1994] AATA 9781

Tuchinsky v Selective Service System [1969] USCA7 426; (1969) 418 F. 2d 155

McGhee v Central Intelligence Agency [1983] USCADC 6; (1983) 697 F. 2d 1095

East Hills Hotel Pty Ltd and Commissioner of Taxation [1999] AATA 187, (1999) 99 ATC 2,268

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307

Re Bloomfield and Sub-Collector of Customs ACT) (1981) 4 ALD 204

Re Sarina and Secretary, Department of Social Security (1988) 14 ALD 437

Re Jonsson and Marine Council (1990) 11 AAR 439

Re De Courcy Brown and Comcare (1997) 49 ALD 766

Re Confidential and Australian Prudential Regulation Authority [2002] 66 AATA 661

Re Schlegel and Department of Transport and Road Safety [2002] AATA 1184

Re Aguirre and Department of Immigration and Multicultural and Indigenous Affairs [2002] AATA 481

Re SROO and Department of Defence [2002] AATA 115

Jebb and Repatriation Commission [1988] FCA 105; (1988) 8 AAR 285

Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342

Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44

Re Easton and Repatriation Commission (1987) 12 ALD 777

Re McGourty and Repatriation Commission (1988) 9 AAR 87

DECISION AND REASONS FOR DECISION [2004] AATA 166

Decision: The Tribunal has decided that the Tribunal's jurisdiction is limited to those documents that were within the scope of the applicant's request and that were in the respondent's possession on the day it received the request.

In letters dated 12 May, 2000, each of the seven applicants requested that the respondent, the Health Insurance Commission ("the Commission"), give them access to certain documents under the Freedom of Information Act 1982 ("FOI Act"). In general terms, each request related to the ordering and purchasing of a magnetic resonance imaging machine ("MRI"). Although each varied slightly, they sought a common core of documents. I will refer to the request lodged by Radar Investments Pty Ltd ("Radar Investments") as indicative of the form taken by the others. Radar Investment's request sought access to documents that it divided into 27 categories.

2. The Commission made a decision regarding Radar Investment's request on 19 September, 2000 after charges had been calculated and paid. Following Radar Investment's request for review, it made its internal review decision on 20 April, 2001. In general terms, Radar Investment contends that the internal review decision had incorrectly decided that:

documents were exempt documents and so incorrectly denied it access to those documents;

documents were irrelevant to its request or contained irrelevant material and so incorrectly denied it access to those documents;

and that inadequate searches were conducted for documents relevant to the request.

3. Before any substantive issue may be decided in this case, there is a preliminary issue to be decided. That is whether, in reviewing HIC's decision the Tribunal has jurisdiction to consider documents that have come into HIC's possession after the date on which it received Radar Investment's request for access to documents of that description. If it does have jurisdiction, the subsidiary issue is whether its jurisdiction extends to those that come into HIC's possession up until the date of its decision or some earlier time.

4. Radar Investments submitted that the issue has been decided by the Tribunal in Re Murtagh and Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313 (Davies J, President, and Sir Ernest Coates and Mr Sinclair, Members) when it was said:

"... In our opinion, the Tribunal may make a decision with respect to documents which have come into existence after the date of the request for access provided that those documents are within the ambit of the decision under review, that is to say, that they raise no separate issue but are documents the access to which is established by the decision under review and the decision on review. Because of its function, the Tribunal must necessarily, from time to time, take account of facts which have come into existence after the date of the decision under review. Plainly, relevant documents will not always be only those documents which were in existence at the time of the making of the request for access. The original decision-maker may, and usually does, give a decision with respect to all documents within the category of the applicant's request which are known to be in the possession of the agency at the time of his decision. A decision on internal review may, and usually does, take into account all documents within the category of the applicant's request which are known to be in the possession of the agency at the time of that decision. Similarly, the Administrative Appeals Tribunal, provided that within its jurisdiction it is reviewing a decision to refuse access to documents, may give consideration to all documents which fall within the ambit of the dispute before it notwithstanding that some may have come into existence between the time of the decision under review and the time of the Tribunal's decision." (page 316)

5. The reasoning in Re Murtagh was adopted by the Tribunal in Re Edelsten and Australian Federal Police [1985] AATA 350; (1985) 4 AAR 220 (Deputy President Todd, Dr Renouf and Mr Stevens, Members) but that Tribunal did not accept that the logical conclusion was that it should consider all documents in existence. It considered whether some cut-off date should be imposed. It did not accept that an agency is required to provide all future documents relating to a request and explained its reasons:

"... Section 11 of the Act gives to a person a legally enforceable right to obtain access, in accordance with the Act, to a document other than an exempt document. Section 15 provides that a person who wishes to obtain access to a document may make a request for access to the document. The request must provide such information as is reasonably necessary to enable the agency to identify the document. Section 18 provides that where the requirements of s 15 have been met, and where any charge which, under the regulations, is required to be paid before access is granted has been paid, a person shall be given access to a document provided that it is not an exempt document. It seems to us that these sections are expressed in terms of a document that is in existence at the time of the making of a request or a decision. They do not appear to give a person a right to obtain, or to impose upon an agency or Minister a correlative duty to provide, access to all future documents which satisfy the terms of the request." (page 225)

6. The Tribunal then went on to consider the effect of s. 54 of the FOI Act:

" Section 54 of the FOI Act appears to suggest that what is required upon an internal review is that the decision of the original decision-maker be considered afresh, rather than that a new decision is required in respect of all documents in the possession of the agency at the time of the review. In relation to review by this Tribunal, while it may theoretically be possible to deal with all documents which have come into existence before the date of the hearing, such a course would pose considerable practical difficulties. It will rarely be possible for either party property (sic) to conduct its case in respect of documents which have come into existence shortly before the hearing date. As a general rule it seems appropriate to adopt the date of the application for review before this Tribunal as the last possible cut-off date." (page 225)

7. In Toren and Minister for Immigration and Ethnic Affairs [1994] AATA 10058, I decided that the Tribunal could consider documents that had come into existence since the date of the request provided they came within the ambit of that request. In Re The Environment Centre of the Northern Territory Incorporated and the Department of Environment, Sport and Territories [1994] AATA 9781, I considered the earlier Australian authorities as well as two cases from the United States of America i.e. Tuchinsky v Selective Service System [1969] USCA7 426; (1969) 418 F. 2d 155 and McGhee v Central Intelligence Agency [1983] USCADC 6; (1983) 697 F. 2d 1095. The Court of Appeals in Tuchinsky's case had limited a request for access to all "current ... material" to that material in existence at the date of the request. Fourteen years later, the Court of Appeals in McGhee's case concluded that it is not always appropriate for an agency to deal only with those documents in existence at the date of the request. Whether or not it is appropriate, depends upon what is reasonable. I decided that the weight of authority favoured my concluding that I could consider documents that had come into existence after the date of the request provided they fell within the ambit of that request.

8. On behalf of HIC it was submitted that the Tribunal does not have power to make a decision in relation to documents coming into its possession after the date of receipt of the original request. If it is incorrect in that submission, HIC submitted that the Tribunal's powers should extend only to those documents in HIC's possession at the date on which the internal review decision was made under s. 54 of the FOI Act. Due to the operation of s. 26(1), the Tribunal cannot consider documents coming into its possession after the date of the lodgement of the application for review in the Tribunal. It referred to ss. 11, 55(1) and 58(1) of the FOI Act and ss. 25 and 26 of the Administrative Appeals Tribunal Act 1975 ("AAT Act"). I will return to those later in these reasons.

9. It was also submitted on behalf of HIC that each of these cases on which Radar Investments relied was decided in error because each proceeds on an incorrect premiss. That premiss is that documents coming into an agency's possession after the date of receipt of the request are akin to taking fresh evidence or finding fresh facts. They are not akin and to permit fresh documents to be considered at the hearing would be akin to the Tribunal's considering whether a person was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 ("SRC Act") for an injury other than that which is the subject of a reviewable decision. The submission continued that to go beyond the scope of the request would be, to use the words of Deputy President McMahon in East Hills Hotel Pty Ltd and Commissioner of Taxation [1999] AATA 187 at [14], [1999] AATA 187; (1999) 99 ATC 2,268 at 2,272, a "naked usurpation of power".

10. I will consider East Hills Hotel Pty Ltd and Commissioner of Taxation at this stage because I do not consider that it is relevant in this case. Deputy President McMahon used that expression when considering whether the Tribunal is deprived of jurisdiction to review a decision under the FOI Act because the decision-maker had not complied with its statutory obligations. He was considering the "... distinction between procedural flaws or failure to comply with preconditions on the one hand, and naked usurpation of power on the other hand ..." (page 2,272). His conclusion was the failure to comply with its statutory obligations might well have led to a successful application for judicial review. Having referred to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307, Deputy President McMahon concluded that "... the nature of administrative review requires that purported decisions made on questionable legal foundations should, nevertheless, be reviewable" (page 2,272). The legal foundations for the decisions made by the decision-maker are not in question in the case that I must consider and this case does not assist me in resolving it.

11. As two of the cases, Toren and Minister for Immigration and Ethnic Affairs and The Environment Centre of the Northern Territory Incorporated and the Department of Environment, Sport and Territories are my own decisions, I have set them to one side and considered the matter afresh and without regard to my previous reasoning.

The AAT Act - general provisions

12. Resolution of the issue depends upon the extent of the Tribunal's jurisdiction. Section 25 of the AAT Act is fundamental to any consideration of the Tribunal's jurisdiction to review a decision. Section 25(1) provides that:

"An enactment may provide that applications may be made to the Tribunal:

(a) for review of decisions made in the exercise of powers conferred by that enactment."

13. Sub-section 25(4) provides the necessary corollary to this sub-section when it provides that the ".... Tribunal has power to review any decision in respect of which application is made to it under any enactment." Other sections in Part IV of the AAT Act provide for such matters as those who may apply to the Tribunal (AAT Act, s. 27), the time and manner within which they may do so (AAT Act, s. 29) and the procedure of the Tribunal and its powers associated with procedural aspects (e.g. AAT Act, ss. 33 to 38). Section 40 sets out the Tribunal's powers "for the purpose of reviewing a decision" as well as those for those for the purpose of hearing a proceeding. The powers of the Tribunal "for the purpose of reviewing a decision" are set out in s. 43. They are that it "... may exercise all the powers and discretions that are conferred on the person who made the decision" (AAT Act, s. 43(1)).

14. On occasion, the decision-maker may wish to alter a decision after a person has applied to the Tribunal for its review. Until the enactment of s. 26, there had been doubts expressed as to whether the decision-maker could change a decision (Report of the Review of the Administrative Appeals Tribunal dated 29 November, 1991) or views expressed that he or she could not (e.g. Re Bloomfield and Sub-Collector of Customs ACT) (1981) 4 ALD 204 (Senior Member Todd, as he then was) and Re Sarina and Secretary, Department of Social Security (1988) 14 ALD 437 (Deputy President Todd) and my own decision in Re Jonsson and Marine Council (1990) 11 AAR 439). With effect from 16 December, 1995, s. 26 has provided that:

"(1) Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on review unless:

(a) the enactment that authorised the making of the application expressly permits the decision to be altered; or

(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration.

(2) A reference in subsection (1) to the alteration of a decision is a reference to:

(c) the setting aside of a decision and the making of a decision in substitution for the decision set aside."

15. Any provision of the AAT Act may be modified by an enactment conferring jurisdiction on the Tribunal. Of particular interest in this case is s. 25(3) which provides:

"Where an enactment makes provision in accordance with subsection (1), that enactment;

(a) shall specify the person or persons to whose decisions the provision applies;

(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and

(c) may specify conditions subject to which applications may be made."

16. It is clear from the provisions of the AAT Act to which I have referred that, while Parliament set out a general framework of procedures and powers in the AAT Act, it intended that those procedures and powers be defined and circumscribed by the enactment making provision for review by the Tribunal. The result, therefore, is that regard must be had to the terms of the enactment to decide whether or not the Tribunal has been given jurisdiction to review a decision and, if so, the limits of that jurisdiction.

The enactment conferring jurisdiction on the Tribunal - the FOI Act

17. That brings me to the FOI Act. Parts III and IV of the FOI Act are concerned with the circumstances in which a person may gain access to information held in documentary form in the possession of Ministers and in the possession of departments and public authorities, together known as "agencies". They do so by creating a general right that is limited to certain documents and qualified by certain exceptions and exemptions. It is limited to a "document of an agency" and an "official document of a Minister" (see generally, s. 3(1)(b)). A "document of an agency" means "... a document in the possession of an agency ... whether created in the agency or received in the agency" (s. 4(1)). An "official document of a Minister" means:

"... a document that is in the possession of a Minister ... in his capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from his possession if he is entitled to access to the document and the document is not a document of an agency." (s. 4(1))

In the main, the exceptions exclude certain documents from the scope of the FOI Act on the basis of workload considerations (s. 24), that they are available through other avenues (ss. 12 and 15A) or that they have been placed in certain historical and library collections (s. 13). The exemptions, set out in Part IV, exclude certain documents from the scope of the FOI Act on the basis of their content, or part of it. They do so in order to protect defined public interests as well as information held by Ministers and agencies regarding the private and business affairs of persons outside the public arena.

18. With those limitations in mind, the right of access is set out in s. 11 and it is in the following terms:

"(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 the Minister's belief as to what are his or her reasons for seeking access."

19. A person who wishes to exercise his or her right to obtain access to a document of an agency may request access to the document (s. 15). His or her request must comply with the requirements of s. 15(2). It must, for example, be in writing, provide as much information about the document as is reasonable to enable it to be identified and be accompanied by the appropriate fee.

20. Part III sets out the steps that must be followed by the responsible Minister or the principal officer of the agency, or by a person acting with his or her authority, in making a decision on a request made under the FOI Act. It also prescribes the framework within which the decision-maker exercises his or her power. He or she must, for example, transfer a request to another agency in the circumstances set out in s. 16 and must handle a request for information that is computerised in accordance with s. 17. Section 22 sets out what he or she must do after deciding not to grant a request for access on the ground that it is an exempt document by virtue of a provision of Part IV or that it contains information that is irrelevant to the request. Section 24A authorises the decision-maker to refuse a request for access to a document that has not been located if two criteria are fulfilled. The first is that all reasonable steps have been taken to find the document and the second is that the agency or Minister is satisfied that either the document is in the agency's or Minister's possession but cannot be found or that it does not exist.

21. Section 23 sets out those who may make decisions "in respect of a request made to" an agency or other body.

22. Once a decision has been made, s. 54 of the FOI Act provides for its internal review provided the initial decision was not made by the principal officer of the agency as its Minister. An application for internal review must be made within the time limits prescribed (ss. 54(1A) and (1B)) and must be a decision that comes within the terms of s. 54(1). Once an application for internal review has been made to an agency, "... it must as soon as practicable arrange for a person (not being the person who made the decision) to conduct such reviews to review the decision and make a fresh decision" (s. 54(2)). What is meant by the words "a fresh decision"? The ordinary meanings of the word "fresh" include "... II8 New, novel; not previously known, used, met with, etc. ME. b Additional, other, different. LME 9 Recent, newly made; ..." (The New Shorter Oxford English Dictionary, 1993) and "... 1. newly made or obtained, etc ..." (Macquarie Dictionary, 3rd edition, 1997). The expression was also considered by Deputy President Todd in Re Edelsten and Australian Federal Police when he said:

"Section 54 of the FOI Act appears to suggest that what is required upon an internal review is that the decision of the original decision-maker be considered afresh, rather than that a new decision is required in respect of all documents in the possession of the agency at the time of the review" (page 225)

I agree with Deputy President Todd's analysis of the section. It requires a decision-maker to go back to the terms of the original request and to make the decision anew without regard to the findings made and decision reached by the original decision-maker. Section 54(3) does not, however, serve to extend the decision-maker's jurisdiction beyond that enjoyed by the original decision-maker. The decision-maker's jurisdiction must be limited to making a fresh decision under s. 54 and, when regard is had to s. 23, that fresh decision must be in respect of the request made to the agency.

23. Is there any guidance to be had from the provisions of the FOI Act relating to the review in the Tribunal? Part VI is concerned with the review of decisions made under the FOI Act by the Tribunal. To place those boundaries in perspective, I will begin with s. 55 which specifies the Tribunal's jurisdiction. Section 55(1) provides that:

"(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:

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

(aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or

(ab) a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or

(b) a decision to defer the provision of access to a document; or

(c) a decision refusing to allow a further period for making an application under subsection 54(1) for a review of a decision; or

(d) a decision under section 29 relating to imposition of a charge or the amount of a charge; or

(e) a decision under section 30A relating to remission of an application fee; or

(f) a decision to grant access to a document only to a qualified person under subsection 41(3); or

(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or

(h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48."

Sections 55(2) and (3) qualify s. 55(1) to the extent that a person may not apply to the Tribunal for review if he or she is entitled to make an application for review under s. 54.. While s. 55 is drafted in terms of a decision's having been made, s. 56 provides for the circumstances in which a decision has not been made. If a decision has not been made within 30 days of the request's having been made or within such further time as has been extended under s. 15(6), a decision refusing access is deemed to have been made (s. 56(1)).

24. Section 56(5) is concerned with the situation in which a decision-maker wishes to alter a decision after a person has already lodged an application for review of that decision by the Tribunal. It provides that:

"Where, after an application has been made to the Tribunal by virtue of this section but before the Tribunal has finally dealt with the application, a decision is given, other than a decision:

(a) to grant, without deferment, access to the document in accordance with the request; or

(b) to amend or annotate the record of personal information to which the application relates;

the Tribunal may treat the proceedings as extending to a review of that decision in accordance with this Part."

Section 56(5)(b) was inserted with effect from 25 October, 1991 but s. 56(5)(a) has been part of the FOI Act since its implementation on 1 December, 1982. As it applies only to an application lodged by virtue of s. 56, it applies only to an application lodged for review of a decision that has been deemed to have been made after a decision was not made within the prescribed time limits.

"Before dealing further with an application made by virtue of this section, the Tribunal may, on the application of the agency or Minister concerned, allow further time to the agency or Minister to deal with the request."

The inter-relationship between s. 26 of the AAT Act and s. 56 of the FOI Act

26. These provisions show that the Tribunal's power is again linked back to the request but do not assist further in the resolution of the issue I must decide.

27. What is the inter-relationship between s. 26 of the AAT Act and ss. 56(5) and (6) on the one hand and the remaining provisions of the FOI Act on the other? Cases discussing the relationship between s. 26 and the provisions of legislation other than the FOI Act are not helpful in determining the relationship for it depends upon the precise terms of the legislation. Consequently, my decision in Re De Courcy Brown and Comcare (1997) 49 ALD 766 at 770-771 and the Tribunal's decision in Re Confidential and Australian Prudential Regulation Authority [2002] 66 AATA 661 at paragraphs 8-12 (Downes J, President, and Mr McLean and Ms Prime) are not relevant.

28. The cases of Re Schlegel and Department of Transport and Road Safety [2002] AATA 1184 at paragraphs 64-66 (Senior Member Sassella), Re Aguirre and Department of Immigration and Multicultural and Indigenous Affairs [2002] AATA 481 at paragraph 28 (Senior Member Sasella) and Re SROO and Department of Defence [2002] AATA 115 at 57-59 (Senior Member Sassella) state, in effect, that a decision can be changed under s. 26 with the consent of the person making the request for access. Both were concerned with decisions that had been made and that were the subject of review. Unlike Re Schlegel and Re Aguirre, Re SROO required the Tribunal to review a deemed decision to refuse access. Senior Member Sassella said:

"57. The tribunal has noted that the respondent proceeded to make fresh decisions as to the release of documents even after the applicant applied to the tribunal for a review of the deemed decision. Section 26 of the AAT Act is intended to impede such activity. It restricts the powers of a decision-maker after a person applies for a review. If the decision under review is to be altered this can occur only if the Act permits it (which it does not), or if the parties to the application, and the tribunal, consent to the making of the alteration. Alterations of decision occurred as late as 11 December 2001 (Ex R7).

58. The tribunal dealt with this at a directions hearing by inviting the applicant to amend her application to refer to the issues that remained outstanding as at the end of August 2001. The applicant did this in her extremely helpful letter dated 31 August 2001 (Ex A4). The tribunal formally approves the applicant's request to amend her application for review.

59. As regards the decision in Ex R7, it was clear at the hearing that the tribunal and the parties present appreciated that this fresh decision resulted in the release of further documentation and that all parties approved of the development. The tribunal therefore refers to s 26 of the Act and accepts the alteration of the decision under review as recorded in Ex R7. The decision(s) under review are therefore all the relevant decisions of the respondent taken up to and including 11 December 2001."

29. It is apparent from what I said in Re Jonsson and Marine Council and in light of the doubts that have been expressed in other quarters (see paragraph 14 above) that, regretfully, I disagree with Senior Member Sassella's conclusion that s. 26 is intended to impede the alteration of a decision once an application for review has been lodged in this Tribunal. It does, in fact, extend the decision-maker's power to do so. Depending on the view that is taken of the law as it stood prior to the introduction of s. 26, that section either extends the decision-maker's power by enabling him or her to alter a decision once an application has been made to the Tribunal or clarifies his or her power to do so. While I agree with his further statement that a decision can only be altered by consent or if an enactment permits it, I do not agree with his conclusion that the FOI Act does not permit it in the circumstances under consideration in Re SROO. Section 56(5) does not seem to have been drawn to Senior Member Sassella's attention. On one view, it could be said that s. 56(5) assumes that the decision-maker may make a new decision after an application for review has been lodged in the Tribunal rather than expressly permits the decision-maker to make a new decision. If that is the correct view, it might be said, the decision could not be substituted for the previous decision without both parties to the proceeding consenting. It does not, however, seem to me to be the correct view. Reading ss. 56(5) and (6) together, it seems to me that the FOI Act expressly permits the decision that has been deemed to have been made to be altered i.e. varied, set aside or set aside and a new decision substituted. If it were otherwise, there would be no reason to give the Tribunal the power to allow an agency or Minister further time "to deal with the request". Section 56(5) does, therefore, expressly permit the decision to be altered but only where it is a deemed decision to refuse access. Putting s. 56(5) to one side, I agree with Senior Member Sassella that there are no other provisions of the FOI Act permitting the alteration of a decision. Therefore, if a decision-maker wishes to vary a decision other than a deemed decision, he or she must rely on the s. 26(1)(b) of the AAT Act.

Merits review in the Tribunal - general principles

30. In undertaking administrative review, it was said by Davies J in Jebb and Repatriation Commission [1988] FCA 105; (1988) 8 AAR 285 that the general approach of the Tribunal is:

"... to regard the administrative decision-making process as a continuum and to look upon the Tribunal's function as a part of that continuum so that, within the limits of a reconsideration of the decision under review, the Tribunal considers the applicant's entitlement from the date of application, or other proper commencing date, to the date of the Tribunal's decision." (page 289)

31. Davies J considered the issue again in the context of the review of a decision to cancel a pension and, in doing so, considered the Tribunal's approach in reviewing a decision whether a person is entitled to a pension. He did so in Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342 where he first reviewed the earlier decisions of Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44 (Davies J, President, Senior Member Ballard and Dr Garlick, Member), Jebb v Repatriation Commission, Re Easton and Repatriation Commission (1987) 12 ALD 777 (Davies J) and Re McGourty and Repatriation Commission (1988) 9 AAR 87 (Davies J). He said of the review of decisions refusing to grant a pension:

" Regard must always be had to the nature of the decision which is under review. In Re Tiknaz, in Re Easton, in Jebb's case and in McGourty's case_, the decision under review was a decision refusing to grant a pension or benefit that had been applied for. In each case, it was held that there was jurisdiction to consider entitlement not only as from the date of the application but also entitlement up to the date of the Tribunal's decision. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the_

pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal's decision.

Merits review in the Tribunal - FOI decisions

32. The position of a person seeking an entitlement to a pension is analogous to the position of a person seeking an entitlement to have access to a document under the FOI Act. Each seeks an entitlement which is, in the case of the FOI Act, expressed as a right. In the case of an entitlement to a pension, the ongoing nature of administrative review means that the Tribunal must consider a person's entitlement to a pension on each and every day throughout the period from the date of the application for the pension and the determination of the matter by the Tribunal. As part of its ongoing nature, regard can be had to fresh evidence and to changes in the law determining the entitlement to the pension. At all times, though, the matter under consideration remains the pension for which the person applied. Unless permitted by legislation, it does not become another type of pension or benefit different from that for which the person originally applied or a second or third pension in addition to the first.

33. The review of a decision under the FOI Act in relation to a request for access to a document must be treated in the same way. Given the subject matter of the FOI Act, decision-making must necessarily be an ongoing process. The public interest in maintaining the confidentiality of a document and so in claiming that it is exempt from disclosure may, for example, be very short lived. Other events may transpire so that a decision refusing access on the basis that it is an exempt document could no longer be maintained by the time that an application for review is heard by the Tribunal. Whether or not the document is exempt would be considered at the date of the Tribunal's decision and not at the date of the initial decision. Section 21(1)(c) expressly recognises that events and circumstances affecting a document may alter over time when it provides that provision of access may be deferred until the occurrence of an event or the passage of a period of time where earlier release of a document would be contrary to the public interest.

34. In reviewing a decision, the Tribunal has, subject to the remaining terms of s. 58:

"... in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister." (s. 58(1))

If it should decide that a document is an exempt document, it may not decide that access be granted (s. 58(2)). Where conclusive certificates have been issued, the scope of the Tribunal's review is limited (ss. 58(3) to (5A)).

What is the Tribunal's jurisdiction in this case?

35. To say that the decision-making process under the FOI Act is an on-going process and that a person's entitlement must be considered from the date of his or her request to the date of the Tribunal's decision, does not answer the question in this case. Equally, a consideration of the Tribunal's powers on review and whether the decision-maker can change a decision do not answer the question. These are matters that are consequences of the Tribunal's having jurisdiction but not determinative of it.

36. It is apparent from my summary of the provisions of the FOI Act that the Tribunal's jurisdiction must be ascertained by reference to two factors. The first is the decision of which review is sought or, if it should be a deemed decision to refuse access, any decision made subsequently while the matter is before the Tribunal. The second is the terms of the request. If it were otherwise, s. 55(1)(aa) would not permit an application to be made for review of a decision granting access to a document but not granting, in accordance with that request, access to all documents to which it relates. Similarly, s. 55(1)(ab) would not permit an application to be made for review of a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access. Whether or not access has been granted in accordance with a request can only be ascertained by reference to the request.

37. The decision that is under review in this case is the internal review decision made on 20 April, 2001. That was a fresh decision made under s. 54(2) after review of the decision made on 19 September, 2000. As the initial decision was made "in respect of a request" made by Radar Investments and the internal review decision was a fresh decision after review of that decision, it too must have been made in respect of the request. The application to this Tribunal has been made to review that fresh decision and so it too must be an application to review a decision made in respect of a request.

38. What, then, is the request? When I have reference to the request in this case, I see that three formulations of the request have been adopted in the 27 categories of documents sought by Radar Investments. They are:

five of the categories sought to documents in relation to certain events "occurring between 1 November 1998 and the present, in relation to ..." specified matters;

twenty of the categories sought access to documents between certain persons or of a certain description "in relation to ..." certain events; and

two of the categories sought access to documents "created in or after November 1998 concerning the applications by ..." named persons.

39. There could well be documents that have come into the possession of HIC after the date on which it received Radar Investment's request and which meet one or more of the descriptions in the three categories. It seems to me, however, that, on a proper reading of the FOI Act, the request must be taken to refer to documents in the possession of HIC on the date that it is received. Radar Investments has a legally enforceable right to have access to documents in the possession of HIC but it is a right that is tailored by the provisions of the FOI Act. One of the provisions according to which it is tailored is 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 that document" (s. 15(1)). It assumes that the document is in the agency's possession at the time that the request is made. So too do the other provisions of the FOI Act. A provision such as s. 21 has regard to events that may occur in the future but none refers to documents that are yet to come into existence.

40. Having regard to the framework of the FOI Act, I have concluded that HIC was required to consider Radar Investment's request only in relation to documents in its possession at the time it received the request. On internal review, the decision-maker is limited to reviewing the initial decision and so is limited to reviewing the decision made in respect of the request as was the initial decision-maker. As the Tribunal reviews the internal review decision, it must also be limited to that request and so to the documents in the possession of HIC at the time the request was received.

41. In many instances, but not in this, parties agree that the agency will consider documents that have come into its possession after the date of the request. This is a very practical approach and one to be encouraged. It ensures that all of the issues relating to all of the documents ultimately sought by an applicant may be resolved at the one time. In order to give the Tribunal jurisdiction, though, it would seem that a further request should be made and a decision and internal review decision made or the matter simply allowed to lapse so that a decision refusing access is deemed to have been made. The applications for review of the two decisions would then be heard together. I do not think that either s. 26 of the AAT Act or s. 56(5) of the FOI Act can be used to circumvent this process. Section 26 permits a decision to be altered where the parties consent to that course or where that alteration is permitted by an enactment. Section 56(5) is such an enactment and does permit the decision-maker to alter a deemed refusal decision. Other than extending the decision-maker's power to alter the decision at all, though, s. 26 does not otherwise extend the powers that the decision-maker may exercise when making that altered decision. He or she must make any decision, be it the original decision or an altered decision, within the same scope of authority. The scope is not extended by virtue of a decision's being an altered decision. That scope is limited by the request in respect of which the decision is made and so to the documents in the possession of the agency at the time that the request was received.

42. For the reasons that I have given, I have decided that the Tribunal's jurisdiction is limited to those documents that were within the scope of the applicant's request and that were in the respondent's possession on the day it received the request.

I certify that the forty-two preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: ................................................................

Date of Telephone Directions Hearing 11 April, 2003

Solicitor for the Applicant Freehill Hollingdale & Page

Solicitor for the Respondent Australian Government Solicitor