It was submitted that it was a precondition to the exercise of the discretion that a decision be made. The argument was that s.66(2)(b) and (c) assumed the existence of a decision. There is certainly no positive requirement in the section that there must be a decision before the discretion can be exercised. The argument proceeded entirely on inferences drawn from the wording of the section.

It was then argued that the Tribunal now had no jurisdiction to make a decision.

Counsel for the respondent then went on to submit that s.14 reserved a power to the original decision maker which, if exercised, removed the substratum of the Tribunal's jurisdiction and that this had happened in the present case.

Section 14 of the FOI Act reads as follows:

"Nothing in this Act is intended to prevent or

discourage Ministers and agencies from publishing or

giving access to documents (including exempt documents),

otherwise than as required by this Act, where they can

properly do so or are required by law to do so."

In our view this submission is a misconstruction of the purpose and effect

of s.14 of the FOI Act. It is a section that is intended to facilitate access to documents outside the terms and mechanisms of the Act. It is a section intended to free Ministers and agencies from constrictions that they might imagine flow from the Act. It is designed to encourage freer access to documents. In a sense the section is otiose. It does not alter the law or prescribe rules having the force of law. It is declaratory, rather than regulatory. It recognises and emphasises the right of Ministers and agencies to change their minds to the advantage of applicants. It is not necessary specially to empower them to give access to documents once a decision to refuse that access has been taken or even reviewed. That power already exists.

Such a power however can not preclude the Tribunal from reviewing a decision when a valid application has been made to it for that purpose within the structure of the FOI Act. It becomes seised of the decision to the exclusion of the decision maker.

As was said in R. v. Moodie 17 ALR 219 at 225 the decision maker becomes functus officio once he has forwarded the request for review to the Tribunal. That was an application under the Student Assistance Act but in general the same principles would apply to the FOI Act in our view. The decision maker could not, for example, superimpose an alteration or seek to subvert the power of the Tribunal to review all aspects of the decision.

This is not to say that a decision maker may not arrive at an agreed settlement with an applicant or proposed applicant. In our view however, it is not open to a decision maker unilaterally to impose a solution by varying or revoking or modifying a decision once made, if an application has then been made to this Tribunal for review of the decision.

It was said in Re Bloomfield 4 ALD 204 at 210:

"Certainly a decision maker has, under the AAT Act, a

continuing role in relation to, for instance, compliance

with s.37 of the AAT Act and appearance before the

Tribunal to support the decision under review at what is

in essence a rehearing, a role which is plainly

contemplated by the AAT Act. It is presumably to be

implied that a decision maker may negotiate with an

applicant for the purpose of pursuing the possibility of

an agreed solution. The functions of a decision maker

to which I have referred, however, arise from the AAT

Act or from the legislation from which the decision

maker derives his powers and functions. It seems to me

that in the absence of power suitably conferred, it is

not open to a decision maker to purport to revoke, vary

or otherwise amend a decision once it has become subject

to the process of review."

Counsel for the respondent submitted that s.14 of the FOI Act was a "power

suitably conferred" as referred to in Re Bloomfield. As previously stated we do not share this view. Section 14 is not a power to revoke, vary or otherwise amend a decision which is subject to an application to this Tribunal for review. Such a power in fact resides in the Tribunal under s.43 of the Administrative Appeals Tribunal Act. If this argument were to succeed then that section could be rendered just as nugatory as s.66 of FOI Act. The question whether a decision is a precondition to the exercise of s.66 discretion will not, however, arise in this case.

Following a different and independent line of reasoning, the Tribunal arrived at the same conclusion in Re Paterson and Department of Home Affairs and Environment N83/927, 19th April 1985. In no uncertain terms, Deputy President Hall said:

"I also reject out of hand the respondent's submission

that because, shortly prior to the date appointed for

the hearing of this matter, the respondent decided to

grant access to the disputed documents, the Tribunal's

jurisdiction to deal with this application came to an

end. The fact is that the application for review is

still pending before this Tribunal; it has not been

disposed of by consent or by any formal order of the

Tribunal. Whilst there are obvious reasons why the

Tribunal would not wish to embark upon a hearing of the

substantive merits of claims of exemption that are no

longer sought to be maintained, the Tribunal still has

available to it all the powers conferred upon it by the

Administrative Appeals Tribunal Act 1975 . . .and the FOI

Act to dispose of the matter before it and to make all

such orders incidental to the disposal of the matter as

are necessary and proper to be made."

In Re Rae and Department of Arts, Heritage and Environment QB4/187, 13th May

1985, Deputy President Todd, faced with the same argument, came to the same conclusion. He said "I simply endorse the decision to which he came for the reasons stated by him, with which I fully agree." Irrespective of whether a "decision" is a necessary precondition, there can be no doubt that our jurisdiction to make a recommendation under s.66 is not usurped merely by making the documents available prior to the hearing. For that matter, our jurisdiction to make a decision remains intact.

Not only do we believe that we have jurisdiction to make a decision, we believe that we have a duty to do so. An application has been made to this Tribunal. Once having satisfied ourselves that we have jurisdiction to deal with that application, we must make a formal decision, even (as is often the case) if it is no more than merely removing the application from the list for hearing. In the present case as agreement has been reached between the parties, we believe that we should record a decision to that effect.

In Re Qantas Airways Limited and Deputy Commissioner of Taxation 2ALD 291 at 292, Davies J. said "The empowering of the Tribunal to review a decision ordinarily confers upon the Tribunal not merely an authority but also a duty to do so whenever proper application is made to it." The terms of our decision will appear at the end of these reasons. In the circumstances it will not be necessary to make a finding whether a decision is necessary to base jurisdiction for a recommendation under s.66 of the FOI Act.

An applicant must demonstrate 3 elements in an application under s.66. Firstly, he must show that an application has been made under s.55 of the FOI Act for review. There can be no doubt of the existence of such an application in this case, except in so far as the document Grant of Residence Status Handbook is concerned.

Then the applicant must show that he was successful or substantially successful. In Paterson's case (supra) it was suggested that all that was required here was a successful result, not necessarily a successful decision.

In the present case the applicant would have to be regarded as successful in relation to the Spouse Paper, all of which has been made available to her.

If a quantitative test is the correct one to apply, then one would have to say that the applicant has also been substantially successful in relation to DORS. She has gained access to all of the 206 pages except 16 and two small passages. There was no evidence before us as to the contents of the deleted pages but from the argument put before us by both sides (and without contradiction) it appears to us that the applicant obtained sufficient access for her purposes and learned the pith and substance of the contents of the document. We were told that the document was of considerable use in giving advice on migration matters to clients of the Marrickville Legal Centre. The fact that the applicant was prepared to accept the document in its truncated form, is evidence in itself that she considered that she had substantial access to the sort of information she was seeking. Whether a quantitative or a qualitative approach therefore is adopted we believe that the applicant has been substantially successful in relation to DORS. She has the bulk of the material and is aware of substantially all the information she sought.

The third element that an applicant must show is that success was achieved "in his application for review".

It is true that access to the documents was gained without proceeding to the hearing of the application and the calling of evidence on both sides. Counsel for the respondent argued that the giving of access in those circumstances was an exercise of powers under s.14 and was therefore somehow or other outside the terms of the FOI Act. Again in our view this is a misconstruction of the meaning and purpose of s.14.

If an application is made to this Tribunal pursuant to s.55 of the FOI Act after an internal review, and if preparations are then made for a hearing, and if in the course of those preparations agreement is reached on access and the basis of access, how can it be said that this agreement and this access did not arise out of the application for review? There is no reason why the respondent should reverse a previously confirmed decision except for the prospect of yet another review by an external Tribunal of that decision. There is no reason why the respondent would act, otherwise than within the context and structure of this present application for review. In our opinion the applicant has been successful or substantially successful in her application for review and this Tribunal may accordingly exercise its discretion granted by the Statute.

We do not believe, however, that we should exercise that discretion in favour of the applicant.

It is a wide discretion although there are 4 specific matters which we are charged to take into account. Before dealing with the general discretionary arguments we will deal with each of the 4 elements set out in s.66(2) of the FOI Act.

The application was brought on behalf of Marrickville Legal Centre, a voluntary organisation working in an inner western suburb of Sydney and providing legal advice free of charge for those in need. The area in which the centre operates is populated by a large number of people to whom knowledge of the Australian Government's policy on Immigration and Ethnic Affairs is a matter of particular interest. We are prepared to take note of the fact that the organisation is voluntary and non-profit making. In our view however, that alone is not sufficient to demonstrate that payment of the costs of this application would cause financial hardship, either to the applicant personally or to her organisation. One cannot assume that any organisation describing itself as non-profit making would necessarily suffer financial hardship if called upon to pay costs. "Hardship" is a strong word and in our view severe circumstances would need to be demonstrated before it became applicable. To use the phrase in F.G. O'Brien v. Elliott (1965) NSWR 1473 the applicant would have to demonstrate "matter of appreciable detriment". That has not been done in the present case. In the absence of tangible evidence of real financial detriment, it would be rash to assume hardship existing in every non-profit making organisation which could range from an established church to an ad hoc group formed for the purpose of an application such as the industry group Litter Research Foundation in Paterson's case (supra) and which chose voluntarily to exercise its legal rights before this Tribunal.

We are also charged to have regard to the question whether the decision of the Tribunal will be of benefit to the general public. The documents in question are not personal to any particular person. We did not see the documents but we understand them to be working documents of some sort describing the draft policy of the department in the areas indicated by the titles of those documents. To make such documents available to the applicant is to make them available to the public, there being no restriction on the applicant as to what she may do with them. Indeed it is likely that in the circumstances of the present application the contents of the documents will be made known to a large number of clients of the applicant's organisation. This must be consistent with the object of the FOI Act set out in s.3 of extending as far as possible the right of the Australian community to access to information in possession of the Government. The decision in question therefore must be regarded as being of benefit to the general public.

For the reasons outlined above we accept that the decision will be of no commercial benefit to the applicant.

Sub-section (d) dealing with the reasonableness of the decision reviewed by the Tribunal is the sub-section upon which the applicant relies most heavily. Indeed it is on the basis of the unreasonableness of the respondent (to use a general term) that the applicant seeks the exercise of our general discretion under s.66.

The applicant's argument was that there were many delays by the respondent in finally arriving at the position where the documents could be made available to her. It was almost on the day set aside for the hearing of this application that final agreement was reached. It was submitted that the procrastination in question was unreasonable and that this should be recognized by a recommendation being made under s.66.

In our view the term "reasonableness of the decision" in sub-section (d) does not mean "reasonableness of the respondent". The applicant has her remedies under ss.19, 31 and 56 of the FOI Act where decisions are delayed. It is not necessary to resort to the costs section in order to ensure that statutory timetables and authorized extensions are met. There is an elaborate structure within the Act to ensure that applications are not frustrated by delays. Outside the terms of the Act the applicant may also complain of tardiness to the Ombudsman. It is a matter with which he may properly concern himself. In view of the wording of s.66 we do not consider that we should take it into account in the present application. The American decisions referred to in Rae's case (supra) extrapolate principles from differently constituted legislation.

The reasonableness of the decision is quite different from the reasonableness of the respondent (as perceived by the applicant). The Tribunal has to have regard to quite different considerations from conduct in examining the decision. It is to the final result and its effects that one must look, not to the steps leading up to the arrival of that result. Here we must conclude that the decision (as distinct from the conduct - on which we make no finding) of the respondent was reasonable. The applicant accepted it. If she did not consider that refusal of access to part of one document was not reasonable or supportable by law, she would have pursued her application. If she considers the decision reasonable, now knowing the contents of most of the documents, this must be strong (if not necessarily conclusive) evidence that it was.

The 4 elements referred to are by no means the only matters that the Tribunal may take into account in exercising its very wide discretion. The discretion, be it noted, is a double one in that the Tribunal is empowered only to make a recommendation, which the Attorney General may or may not accept.

In our view it would be wrong to make a recommendation in the circumstances of the present case for the principal reasons for which the applicant contends. To do so would be to discourage parties from reaching agreements. It is in the public interest that wherever possible, agreement be reached between applicant and respondent without the necessity of a full hearing. This is desirable for a large number of reasons not the least of which is that it enables the parties to negotiate flexibly and furthermore it frees the resources of the Tribunal to deal with intractable situations. To regard the inevitable delays in reaching agreement as a ground for making a recommendation as to costs would be to punish those who were prepared to review a situation and to change their minds.

If a matter proceeds to a full hearing (and matters under this Act can be extraordinarily lengthy and complex and therefore expensive) then that would necessarily increase the financial hardship (if it existed) of which we are bound to take account. Accordingly, anything that can save expense to the parties and to the community has to be regarded as a desirable objective and something to be encouraged. To make a recommendation for payment of costs in the present circumstances is not the way to encourage such conduct. We therefore decline to make the recommendation sought.

The order of this Tribunal will be:

By consent, the decisions under review are set aside except in so far as

they relate to pages 16, 17, 77, 170, 172, 173, 175, 188, 191, 193, 136, 137, 138, 176, 177, 178 and designated portions of 193 and 194 of the document entitled "Review of Australian Procedures for Determining Refugee Status".