Rana v Australian Federal Police

Relevant statutory framework 19 The object of the FOI Act is to extend as far as possible the right of the Australian community to access information in the possession of the Commonwealth. 20 Subsection 11(1) of the FOI Act provides that: '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.' 21 The word 'document' is defined in subs 4(1) of the FOI Act to mean: '(a) any of, or any part of any of, the following things: (i) any paper or other material on which there is writing; … (v) any article on which information has been stored or recorded, either mechanically or electronically; (vi) any other record of information; or …' 22 Section 24 of the FOI Act provides that requests for access to information may be refused in certain cases. 23 Section 24A of the FOI Act provides that: 'An agency or Minister may refuse a request for access to a document if: (a) all reasonable steps have been taken to find the document; and (b) the agency or Minister is satisfied that the document: (i) is in the agency's or Minister's possession but cannot be found; or (ii) does not exist.' 24 Section 23 of the Freedom of Information Act 1991 (SA) (the State FOI Act) (which is relied on by the appellant) provides: 'An agency must notify an applicant in writing - (a) of its determination of his or her application; or (b) if the application relates to a document that is not held by the agency - of the fact that the agency does not hold such a document.' 25 The FOI Act, a law of the Commonwealth, provides for the right of the Australian community to access information in the possession of the Commonwealth. Further, and in particular, the FOI Act provides that persons who have an application for access to information refused are entitled to written notice of that decision.

Application of State Law (Ground 1) 26 The appellant contends that the effect of s 79 of the Judiciary Act is such that the AFP should have complied with the State FOI Act. 27 The appellant contended before the primary judge, as he does here, that s 23 of the State FOI Act was 'picked up' by operation of s 79 of the Judiciary Act and became a 'surrogate federal law': McLeod v Australian Securities and Investment Commission (2002) 211 CLR 287 at 302, at [44] (McLeod); Commonwealth of Australia v Wood (2006) 148 FCR 276 at [33]-[34] (Wood). He says that section was in conflict with s 24A of the FOI Act and the State FOI Act (being the later Act) applied to the extent of any conflict or inconsistencies with s 24A. He argued the respondent's conduct amounted to a constructive refusal and/or a failure to give notice of a determination pursuant to s 23 of the State FOI Act. In his view, University of Wollongong v Metwally (1984) 158 CLR 447 (Metwally) assisted his argument. 28 In his reasons the primary judge said it was a sufficient answer to this contention of the appellant that the State FOI Act was not 'picked up' by s 79 because the Commonwealth had 'otherwise provided' in enacting the FOI Act. 29 Section79 of the Judiciary Act provides: 'The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.' 30 As is evident from the terms of this provision, it only applies when courts are exercising federal jurisdiction. An executive decision-maker processing an application for a request for information under the FOI Act is not a court. Section 79 is not addressed to officers of the executive government. It is directed to certain courts. The consequence is that s 79 is not engaged in the present case and the principles discussed by the High Court in McLeod can have no application. 31 This is supported by Solomons v District Court of New South Wales (2002) 211 CLR 119 at [23] per Gleeson CJ, Gaudron, Gummow, Hayne, and Callinan JJ who referred to four relevant limitations in the text of s 79: 'First, the section operates only where there is already a court "exercising federal jurisdiction", "exercising" being used in the present continuous tense. Secondly, s 79 is addressed to those courts; the laws in question "shall ... be binding" upon them. The section is not, for example, directed to the rights and liabilities of those engaged in non-curial procedures under State laws. Thirdly, the compulsive effect of the laws in question is limited to those "cases to which they are applicable". To that it may be added, fourthly, the binding operation of the State laws is "except as otherwise provided by the Constitution"' 32 With reference to the appellant's reliance on Wood, two points must be made. First, Wood was not concerned with s 79. It was concerned with whether as a matter of statutory construction the Anti Discrimination Act 1998 (Tas) applied to the Commonwealth and whether this Act breached Chapter III of the Constitution. Wood was concerned, in part, with an allegation of age discrimination at a time when Commonwealth law did not prohibit age discrimination. Second, and in any event, Wood was not followed by the New South Wales Court of Appeal in Trust Company of Australia Ltd (trading as Café Tiffany's) (2006) ATPR 42-126 at [67]-[69]. 33 As to the appellant's reliance on Metwally,it also cannot assist his contention. That case was concerned with a different point. In Metwally the Court held that when a State law is held to be inconsistent with a Commonwealth law and the invalidity of the State law is brought about by s 109 of the Constitution, the Commonwealth Parliament cannot enact a law to override the operation of the Constitution. No such issue arises here. 34 In any event, if s 23 of the State FOI Act were to be 'picked up' as the appellant contends, in its terms it cannot assist him. This is because the section is directed to an 'agency' which is defined by the State FOI Act to be referrable to State agencies only.

Procedural fairness (Ground 2) 35 The appellant contends he was denied procedural fairness. He expresses this in a variety of ways which are reflected in the subheadings which follow. 36 This issue of procedural fairness must be approached in the light of what was said by members of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1. Gleeson CJ, addressing the issue of procedural fairness and legitimate expectation, said at [37]: 'Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.' At [25] he stated that judicial review should not be elevated 'to a level of high and arid technicality'. The flexibility of the requirements of procedural fairness was emphasised also by McHugh and Gummow JJ at [48]. The requirements are exclusively procedural. They are not substantive. 37 Procedural fairness requires that a party be given a reasonable opportunity to present his case; not that the decision-maker (or for that matter a Court) ensure that a party takes the best advantage of the opportunity to which he is entitled: see Sullivan v Department of Transport (1978) 20 ALR 323; cited Re Association of Architects (Australia); ex parte Municipal Officers Association (Australia) (1989)63 ALJR 298 at 305; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 272 per Gummow J at 482; Luu v Renevier (1989) 91 ALR 39. 38 What is appropriate in terms of procedural fairness depends on circumstances of the case and they include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision maker is acting: see Kioa v West (1985) 159 CLR 550 per Mason J at 564-595. 39 In our opinion, in the circumstances of this case and subject to the detailed issues which follow, procedural fairness was provided to the appellant. He chose to proceed with the hearing. He was aware of all relevant issues. He did not seek an adjournment or express any difficulty or inability to proceed. Although unrepresented, he is familiar with the processes of the Court and Tribunals as evidenced by numerous published decisions: for example Rana v Flinders University of SA [2005] FMCA 1473; Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6; Rana v Human Rights Equal Opportunity Commission (1999) 54 ALD 337; Rana v Chief of Army Staff (2006) 90 ALD 474; Rana v Military Rehabilitation Compensation Commission [2005] FCAFC 85; Rana v Flinders University Ors [2004] FMCA 325; Rana v State Ombudsman of South Australia [2004] FCA 456; Rana and Military Rehabilitation and Compensation Commission (2005) 89 ALD 180; Rana; Ex parte - Re Beaumont Ors [2005] HCA Trans 576 (9 August 2005); Rana v Fergusson Ors (No.2) [2003] FMCA 297; Rana v Fergusson Ors (No.1) (2003) 175 FLR 439; Rana v State Ombudsman of South Australia Ors [2004] HCA Trans 480 (19 November 2004); Rana v University of SA [2003] FMCA 525.

The appellant did not agree to the respondent preparing the court book 40 The primary judge ordered that the respondent prepare the court book (not an 'Appeal Book') at the directions hearing on 18 May 2006. The appellant appeared in person at that hearing. The appellant and respondent did not have the transcript of proceedings before the AAT (the transcript). All other relevant documents available to the parties were included in the Court Book. The appellant claims to have been advised by the AAT that no transcript existed. In the circumstances, whether the appellant or respondent prepared the Court Book was immaterial.

The appellant sought a copy of the transcript 41 The respondent was not aware at the relevant time that the appellant had sought the transcript, to correct alleged errors or otherwise.

Delay in filing the court book 42 The respondent accepts that the Court Book was not filed until 26 June 2006. An affidavit of the solicitor for the AFP in this proceeding filed with leave on the hearing of the appeal establishes that the late filing was due to oversight. Attempts to serve by courier on the appellant on that date were rebuffed by the appellant who that day undertook to collect it personally.

Appellant caught unawares 43 The appellant makes a bare allegation that some representation was made by the Australian Government Solicitor (AGS) to the appellant in relation to provision of the transcript. This allegation is unsubstantiated. 44 The AGS wrote to the appellant in relation to the late production of the Court Book on 26 June 2006 by email which said in part: 'If the late delivery of the court book impacts of [sic] your readiness to proceed to hearing on Friday, please let me know and we can perhaps approach the Court for further directions.' 45 The appellant responded by email the same day and said, in part: 'I am prepared to go ahead on Friday as it would have minimal impact on me.' 46 It is clear the appellant chose to conduct his case in the manner that he did before the primary judge. 47 There was no requirement for a 'certificate of examination' given a court book (not an appeal book) was being prepared. Order 52 of the FCR does not apply to applications pursuant to the AD(JR) Act. There was no need to liaise as to the contents of the Court Book as all of the available relevant material was included. Communications by the appellant with the Registrar as described by the appellant were not known to the respondent.

Primary judge referring to the transcript 48 The principle of procedural fairness takes into account the information which needs to be addressed by the person affected by the decision. Fairness does not require that each document received by a decision-maker must be provided to the person affected by the decision, particularly where the person is aware of the information contained within each document: Rana v Chief of Army Staff (2006) 90 ALD 474 per Kiefel, Kenny and Graham JJ at [35]. The appellant appeared in person before the AAT, and was therefore aware of matters with which the transcript was concerned. There was no practical unfairness caused by the primary judge having reference to the transcript; which transcript was neither available to the appellant nor respondent at the proceeding before the primary judge (see Lam). Further, an appeal to the Full Court of the Federal Court is not an appeal in a strict sense, but is an appeal by way of rehearing: see s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth); Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [75]; Kirby J at [128] and Hayne J at [176]. See also CSR Ltd v Delia Maddalena (2006) 80 ALJR 458 per Kirby J at [16]. This paragraph was cited with approval by the Full Court of the Federal Court in Astrazeneca Pty Ltd v Glaxosmithkline Australia Pty Ltd (2006) ATPR 42-106 at [32]..

Allegations of bias against the AAT and the primary judge 49 The appellant complains the primary judge went on to explore the allegation of bias against the AAT. As the appellant did not pursue this complaint in oral submissions before the primary judge, he was not strictly obliged to consider the issue. He dealt with this matter out of abundance of caution as it was raised in the appellant's written submissions. That was appropriate. He was entitled to have regard to the transcript. Neither party raised the issue of the transcript of the AAT before him. Neither party had it or referred to it. Further, the appellant was aware of all matters agitated before the AAT and the manner in which the AAT proceeded. In those circumstances there is no room for the allegations of bias against the primary judge. 50 This follows from the applicable principles. A finding of actual bias is a grave and exceptional matter: NADR v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 287 per Emmett J at [16]. An accusation of such bias must be firmly established, even a reasonable apprehension of bias must be 'firmly established': see Re JRL: Ex parte CJL (1986) 161 CLR 342; Forge v Australian Securities and Investments Commission (2006) 80 ALJR 1606. Although the test for apprehended bias is less stringent than that of actual bias, it is not sufficient if a reasonable bystander 'has a vague sense of unease or disquiet': Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 per Weinberg J.

Findings of fact and law (Grounds 3 and 4) 51 The appellant complains that the respondent failed to take all reasonable steps to locate the 1991 Documents in a database called 'LEAN' (Law Enforcement Access Network). This contention was raised by the appellant for the first time in the written submissions filed for this appeal. It was occasioned by the appellant locating the reasons and judgement of Beaumont J in Beesley v Australian Federal Police (2001) 111 FCR 1. Beesley was a case in which all relevant databases were searched. In the course of his reasons Beaumont J at [30] described the evidence before the Tribunal from which he was hearing an appeal. He referred to the evidence of an AFP agent who testified that he knew nothing of a system called LEAN. He stated that the Tribunal had referred to a submission which also identified NEPI to oversee the functions of the national crime records. Beaumont J went on to consider at [64] whether the relevant information sought from the LEAN data base could be properly characterised as a'document' of the AFP. That in turn depended on whether the existence of a right of access by the AFP to the data base had the consequence that the document was in the 'possession' of the AFP. He favoured the application of the concept of 'constructive possession'. As the Tribunal had not addressed these relevant issues, he allowed the appeal and remitted the matter to it for reconsideration. 52 Based on the reasoning in Beesley, the appellant contends that at least three data bases exist which were not included in the searches by the AFP in response to his fourth request. These are LEAN, NEPI and another base he described as CRIMTRACK. He also contends that the concept of 'constructive possession' should be applied in respect of them. 53 The AAT received written and oral evidence from Mr Norman, the respondent's Co-ordinator of National Operations Information and the review officer. The appellant cross-examined Mr Norman as to the searches undertaken by the respondent to locate the 1991 Documents. The appellant did not refer to a LEAN database during his cross-examination of Mr Norman or in the proceedings before the primary judge. 54 Nevertheless, the evidence given by Mr Norman was to the effect that searches had been conducted of all databases. The AAT referred to part of Mr Norman's oral evidence in its decision as follows: 'There were a number of searches done over time in reply to your various applications for information. On each of those occasions, searches were done of our computer records, of our manual records, of our archival records and no record either showing the existence or non-existence of those files could be found.' 55 The appellant in his communications to the Court in respect of this appeal has firmly resisted the calling of fresh evidence in relation to the data bases to which he now makes reference. He asserts that the issue he raises is one of law. We do not agree. He raises issues of fact on which there was no evidence before the Tribunal and hence also not before the primary judge. 56 In respect of the LEAN data base, the reasons of a senior member of the AAT in Beesley v Commissioner of Taxation (2001) 47 ATR 1219 at [64] record evidence in that hearing to the effect that the LEAN project did not eventuate so that a suggestion by Mr Beesley that the Australian Taxation Office could access databases available through LEAN was found to be ill-founded. 57 In his reasons the primary judge agreed with the decision in Chu v Telstra Corporation Ltd (2005) 147 FCR 505 that the judgment as to whether all reasonable steps had been taken for the purposes of s 24A of the FOI Act was not a jurisdictional fact: see also decision of Besanko J on what constitutes a jurisdictional fact in Beyazkilinc v Manager Immigration Reception and Processing Centre [2006] FCA 1368 at [41]-[45]. 58 We agree with the respondent that the finding of fact that all reasonable steps had been taken, was open on the evidence before the AAT and should not be disturbed: Waterford v Commonwealth (1986) 163 CLR 54 at 77. Examination of the evidence before the Tribunal on the issue does not disclose any cogent basis upon which to assert the AFP has not taken all reasonable steps. In any event, a finding on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by error of law. No such error is made out. It follows there is no foundation at all for the late submission by the appellant that the AFP has engaged in any 'fraudulent' act with respect to LEAN, CRIMTRACK or any other data base.

Conclusion 59 For the above reasons, the appeal must be dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Nicholson and Tracey.

Solicitor for the Respondent: Australian Government Solicitor

Date of Judgment: 27 November 2006