Freedom of Information - Jurisdiction - whether documents in possession of Member of the Commonwealth Parliament are accessible under the FOI Act - documents relating to enquiries of a constituent - whether document of an "agency", that is whether held by a "prescribed authority" - whether "official documents of a Minister" - reference to explanatory memorandum of amendment to Act to clarify meaning - whether respondent held documents in his capacity as a Minister - retrospectivity of 1983 amendment.

Freedom of Information Act 1982 s.3, s.4, s.11, s.15, s.55, s.56 Acts Interpretation Act s.8, s.38

Commonwealth of Australia Constitution Act 1900 (UK)

Freedom of Information (Miscellaneous Provisions) Regulations

Sankey v Whitlam (1978) 142 CLR 1

Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430

The Tribunal has no jurisdiction to hear this application. The application is dismissed.

This decision concerns whether the Tribunal has jurisdiction to entertain an application made by Mr Michael Said under the Freedom of Information Act 1982 ("the Act"). It raises an issue of general importance in terms of whether documents held by Members of the Commonwealth Parliament are accessible under the Act. The matter arises out of a request made by the applicant in a letter dated 5 August 1992 addressed to:

Member for Fremantle

Honourable Treasurer of Australia"

The request is in the form of a postscript at the end of the letter and is in the following terms:

"P.S. : I am also requesting you to provide me with a copy of all

my files that are in your power and/or possession, having anything

whatsoever to do with me and/or my son, since 1977 to date.

This request is made to you pursuant to the provisions of the

Freedom of Information Act, 1982 with its subsequent amendments

(FOI) Act

Michael N Said"

2. Although the Tribunal had substantial reservations about whether, under the Act, documents held by a Member of Parliament are subject to the Act, it provisionally listed Mr Dawkins as respondent to the application. In order to determine whether it had jurisdiction to deal with the matter, the Tribunal held a Directions Hearing on 7 January 1993. The applicant made submissions in support of his contention that the Tribunal had jurisdiction to hear the substantive application. Ms T Cowles, from the Australian Government Solicitor's Office, appeared on the respondent's behalf to object to the matter proceeding.

3. In order to address the essential issue of jurisdiction the Directions Hearing also sought to establish the nature of the documents to which Mr Said's request related, the capacity in which Mr Dawkins had possession or control over them, and whether, given the basis on which the respondent held the documents, they could be said to be held by an "agency" within the meaning of s.4(1) of the Act. In letters to the parties dated 15 December 1992 the Tribunal also indicated that there were a number of other matters including whether Mr Said's request had been sufficiently detailed to comply with s.15(2) of the Act, and whether the absence of a response by Mr Dawkins could be deemed, by s.56(1) of the Act, to be a refusal to comply with a request under the Act. Since these additional issues are secondary (in the sense that, if the request is not competent in the first place, the failure to respond could not constitute a deemed refusal, nor would any of the other issues concerning the form of the request arise) this ruling will only concern the primary issue of whether or not the original request was competent. It necessarily follows that if it is not, this Tribunal lacks jurisdiction to proceed further with the application.

4. At the Directions Hearing, Ms Cowles indicated, on behalf of the respondent, that the respondent did not wish to take any objection about the form of the request. It was understood by the respondent to relate to documents held by Mr Dawkins at his electorate office pertaining to various enquiries made by Mr Said, as a constituent of the respondent, over a period of years dating back to the respondent's election to Parliament in 1977. Given the form of the applicant's request as a post-script to a letter principally concerned with his relationship, as a constituent, with Mr Dawkins' electorate office and staff, and given also the generality of the request (nothing in it relating to the affairs of any Department in respect of which Mr Dawkins held office as Minister of State) the Tribunal accepts that to be the case. The interpretation given by the respondent to the request is a natural and reasonable reading of it.

5. Mr Said, however, maintains that Mr Dawkins has dealt with him over the relevant period in both his capacity of Minister and as a Member of Parliament. As such the applicant disputes that Mr Dawkins only dealt with him as a "constituent". That, in the opinion of the Tribunal, does not alter the situation. The essential question is what is the ambit of the request. To what is it directed? As stated in the previous paragraph, in its terms, there is nothing of substance to indicate that Mr Said was seeking official documents held by Mr Dawkins as Minister. The mere inclusion of a reference to Mr Dawkins as "Treasurer" at the beginning of the letter is inconsequential in this respect.Even though the Act should not be approached pedantically and its provisions applied too stringently, in this case the respondent's understanding of the essential scope of the request was justified in the circumstances.

6. It could be contended that having regard to s.15(3) and (4) of the Act, which impose obligations on agencies to assist persons seeking documents, the respondent should have made the basis of his refusal clear to Mr Said so that the latter might have been able to reformulate his request in terms that more explicitly were directed to documents, if any, held by Mr Dawkins that fell within the reach of the Act. Arguably, Mr Said might have better understood the basis of the respondent's declining to respond to him if a short statement of the respondent's objection had been furnished to him by someone with authority to do so. But as indicated above, s.15(3) and (4) bind only "agencies" within the meaning of the Act and not other persons not caught by the Act.

7. This decision is therefore made on the basis that the request of Mr Said set forth in paragraph 1 was directed to documents that are in the possession and control of Mr Dawkins in his capacity of a Member of Parliament.

8. Whether particular documents are accessible under the Act depends on whether they fall within s.11 of the Act. So far as relevant, that section reads:

" Subject to this Act, every person has a legally enforceable

right to obtain access in accordance with this Act to:

a document of an agency, other than an exempt document;

or

an official document of a Minister, other than an exempt

document."

In its terms this provision is exclusive. Unless the documents to which access is sought fall within one or other of the two categories specified, the person has no right to access under the Act.

Are the documents sought by Mr Said "documents of an agency"?

9. In s.4(1) "agency" is defined as meaning "a Department or a prescribed authority". Mr Said did not suggest that the documents held by Mr Dawkins could be deemed to be within the control or possession of a Department. Clearly such a proposition would be untenable. Mr Said's request can only be sustained on the basis that the documents held by Mr Dawkins are those of an agency, and, further, in that respect, only if, in some way, they fall within the possession of a "prescribed authority".

10. "Prescribed Authority", as defined by s.4(1) of the Act, means:

(a) a body corporate, or an unincorporated body, established for a

public purpose by, or in accordance with the provisions of, an

enactment or an Order-in-Council, other than -

(i) an incorporated company or association;

(ii) a body that, under subsection (2), is not to be taken to be a

prescribed authority for the purposes of this Act;

(iii) the Australian Capital Territory House of Assembly;

(iv) the Legislative Assembly of the Northern Territory or the

Executive Council of the Northern Territory;

(v) the Legislative Assembly of the Territory of Norfolk Island; or

(vi) a Royal Commission;

(b) any other body, whether incorporated or unincorporated,

declared by the regulations to be a prescribed authority for

the purposes of this Act, being -

(i) a body established by the Governor-

General or by a Minister; or

(ii) an incorporated company or

association over which the Commonwealth is in a position

to exercise control;

subject to subsection (3), the person holding, or

performing the duties of, an office established by an enactment

or an Order-in-Council; or

the person holding, or performing the duties of, an

appointment declared by the regulations to be an appointment

the holder of which if a prescribed authority for the purposes

of this Act, being an appointment made by the Governor-General,

of by a Minister, otherwise than under an enactment or an

Order-in-Council." (emphasis added)

11. Mr Said submitted that documents in the possession of Mr Dawkins as a Member of Parliament could be said to come within paragraph (b)(ii) of the definition of "prescribed authority". He sought to support this by reference to subsection (3) of s.4 which provides as follows:

"(3) A person shall not be taken to be a prescribed authority-

(a) by virtue of his holding -

(i) an office of member of the Legislative Assembly for The

Australian Capital Territory;

(ii) an office of member of the Legislative Assembly of the Northern

Territory or of Administrator or of Minister of the Northern

Territory; or

(iii) an office of member of the Legislative Assembly of the

Territory of Norfolk Island or of Administrator or Deputy

Administrator of that Territory or an executive office created

pursuant to section 12 of the Norfolk Island Act 1979; or

The point he seeks to make is that since members of the House of Representatives or the Commonwealth Parliament are not excluded under subsection (3), they must be deemed to be included within the definition of prescribed authority.

12. It is clear that to the extent that he relies on exclusions of specific instances of membership of bodies such as the Legislative Assemblies of the Northern Territory, the Australian Capital Territory and Norfolk Island, Mr Said's contention is not logically tenable. What subsection (3) does is to make it clear that being a member of one of the named Assemblies does not constitute the member himself or herself as a "prescribed authority". That exclusion is a counterpart to the fact that under paragraph (a)(ii), (iii) and (iv) of the definition of "prescribed authority" the named Legislative Assemblies are themselves excluded from that definition. Section 4(3), perhaps out of abundance of caution, simply ensures that members of the nominated bodies enjoy the same immunity as the bodies themselves.

13. More fundamentally, even if one could describe the House of Representatives as a "body", established for a "public purpose", it cannot be said to be established "by, or in accordance with the provisions of, an enactment or an Order-in-Council". This is so irrespective of whether it has corporate personality or is merely an unincorporated body. The Houses of Parliament are not established by an enactment. "Enactment" means, according to s.4(1), "an Act", which having regard to s.38(1) of the Acts Interpretation Act 1901 means an Act of the Commonwealth Parliament. The House of Representatives is established by s.24 of the Commonwealth Constitution, which is itself part of the Commonwealth of Australia Constitution Act 1900, an Act of the British Parliament. As was said by Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1, at 31:

"The Constitution is not a law made by or under the authority of

the Parliament of the Commonwealth. In its original form it was an

enactment of the Parliament of the United Kingdom."

The House of Representatives is not, therefore, a body established under an enactment, unlike the Legislative Assemblies of the named Territories, which owe their existence, ultimately, to Acts of the Commonwealth Parliament.

14. Moreover support for the view that members of the House of Representatives were not meant to be included in the net as prescribed authorities can be gleaned from the very fact of the express exclusion of the Legislative Assemblies mentioned in paragraphs 11 and 12 above. They are deliberative, elected legislatives. It would be strange not to also exclude like bodies such as the Houses of the Commonwealth Parliament even if it be assumed that they also fall within the term "body established by... an enactment".

15. Furthermore, it is inappropriate to describe the House of Representatives or the Commonwealth Parliament itself as "an incorporated company or association over which the Commonwealth is in a position to exercise control" within the meaning of s.4(1)(b)(ii) of the Act. They are neither companies nor associations. To the extent that they exercise the legislative power and functions of the Commonwealth, they cannot be said to be in any way subordinate to or subject to the control of the Commonwealth, irrespective of whatever sense the word "Commonwealth" has in that provision.

16. Alternatively, Mr Said submitted (by way of an oral communication to the Tribunal subsequent to the Directions Hearing) that if he fails in his contention that the House of Representatives is a "prescribed authority" because the Commonwealth Constitution is not an enactment, it nevertheless comes within paragraph (d) of that definition, namely:

"the person holding, or performing the duties of, an appointment

declared by the regulations to be an appointment the holder of

which is a prescribed authority for the purposes of this Act, being

an appointment made by the Governor-General, or by a Minister,

otherwise than under an enactment or an Order-in-Council."

(emphasis added)

17. The short answer to that proposition is that an appointment referred to in paragraph (d) must be one "declared by the regulations" to be, in effect, a prescribed authority. There is no such declaration in the relevant provisions, namely, the Freedom of Information (Miscellaneous Provisions) Regulations.

18. The respondent submitted that the key to the definition of "prescribed authority" is that it must be "a body corporate or an unincorporated body, established for a public purpose by, or in accordance with the origins of, an enactment or an Order-in-Council". The respondent further submits:

""that the definition of "prescribed authority" applies to bodies

of persons, using the everyday meaning of the word "body". "Body"

is defined as "a collective group, or an artificial person: body

politic, body corporate" in the Macquarie Dictionary and, in the

present context, does not contemplate individuals. Individuals are

brought into the operation of the FOI Act either in their capacity

as officers of a prescribed authority or Department, or when acting

in their capacity as a Minister.

19. The Tribunal agrees with the respondent's submission that as an individual and as a natural person unconnected with a prescribed authority, Mr Dawkins cannot be characterised as a "prescribed authority".

20. The documents in question therefore are not in the possession of a prescribed agency and hence not of an agency.

Are the documents sought by Mr Said accessible as "official documents of a Minister"?

21. Mr Said submitted that a distinction should not be drawn between Mr Dawkins as a Member of Parliament and as a Minister, otherwise as a practical matter, a Minister could "escape" the legislative net of the Act by saying he is acting as a constituent's member.

22. This submission misses the point. The crucial issue is the capacity in which Mr Dawkins holds the documents; ie. whether as Member or as Minister. Once it is determined that the documents to which access is sought are in the former category and not the latter, they are not within the reach of the Act.

23. The Tribunal notes the following submissions put by the respondent concerning whether the fact that a Member may also be, as it happens, a Minister, affects the amenability of documents under the Act:

(i) The second basis upon which the issue can be considered

is whether the documents held by the respondent are official

documents of a Minister as referred to in the FOI Act.

(ii) The respondent submits that the definition of "official

document of a Minister" contained in section 4(1) of the FOI

Act is the only definition that contemplates the issue of

documents held by a Federal Member of Parliament. That section

provides that an...

"official document of a Minister means a document in the

possession of a Minister, or in the possession of the Minister

concerned, as the case requires, in his capacity as a Minister,

being a document that relates to the affairs of an Agency or a

Department of State"

The FOI Act does not expand on this definition any further.

(iii) The respondent submits that the definition is concise in

its terms and clearly does not cover documents held by a

Minister in his capacity as a Member of Parliament. If,

however, the Tribunal requires further clarification it is

submitted that section 15AB of the Acts Interpretation Act 1901

(Cth), should be evoked to allow the Tribunal to consider the

Explanatory Memorandum to the FOI Act and to subsequent

amendments to the FOI Act made in 1983 which provide an

explanation of what is meant by "official documents of a

Minister".

(iv) The Explanatory Memorandum to the Senate for the Freedom

of Information Bill, 1981, at page 4 states,

"Official document of a Minister is defined as a document

in the possession of a Minister that relates to the affairs of

an Agency or a Department of State. It does not include

documents of a party political or personal kind, or that relate

to a Minister's activities as a Member of Parliament."

(v) The Explanatory Memorandum to the Senate of the Freedom

of Information Amendment Bill 1983 provides, at paragraph 6

that

"Paragraph 3(d) will amend the definition of "official

document of a Minister" in sub-section 4(1) to make clear that

a document of a Minister does not fall within the Act unless he

has it in his capacity as a Minister. Documents which a

Minister holds in his capacity as a Member of Parliament, for

example, relating to electorate matters, do not come within the

Act. The amendment clarifies the Principal Act on this point."

(v) The respondent submits that, as the records are therefore

not subject to the FOI Act, the respondent was correct in

declining to act on the applicant's request.

24. Mr Said takes issue with these submissions in two respects. His first is that the word "official" adds nothing to the sense of the word "document of a Minister" in s.11(1)(b) of the Act. It is superfluous. The Tribunal understands the applicant to be saying a strict distinction should not therefore be drawn between documents held by a person qua Minister and those held by him or her qua Member. As such, he is reiterating the point he makes in paragraph 21 above. However, the applicant's submission overlooks the fact that "official document of a Minister" is extensively defined in s.4(1) of the Act in terms which clearly delineate documents held in the capacity of a Minister, ie. by virtue of office, from other kinds of documents. The further attribute is also stipulated that the document must relate to the affairs of an agency or Department.

25. A set of statutory criteria is therefore laid down as to which documents satisfy the prescription. The definition thus demarks a distinction that the Tribunal must observe, even bearing in mind the beneficial nature of the Act. In this respect, s.3 of the Act which states that the object of the Act is "to extend... the right... to access to information in the possession of the Government of the Commonwealth by... (b) creating a general right of access to information in documentary form in the possession of Ministers" does not avail the applicant. The expression of general intent cannot be taken to enlarge the ambit of s.11(1) beyond its stipulated boundaries (ie. as construed in the light of the relevant definitions in s.4(1)). A document which is held by a Member in his or her representative capacity cannot be transformed magically into an official document merely because the Member is, incidentally, a Minister. To argue that it is to confuse (in all senses of the word) one character of the respondent with the other.

26. The Tribunal is in general agreement with the respondent's submissions set forth in paragraph 23 on this point. They are also consistent with Attorney-General's FOI Memorandum No 19 which states, at pp 19-20:

"that "(d)ocuments of a personal or party political kind or

comprising the records of a Minister in his capacity as a Member of

Parliament do not fall within the definition:, and further, that

since the definition includes "only documents which a Minister has

in his possession in his capacity as Minister", it excludes

"representations which a Minister receives in his capacity as a

Member of Parliament from one of his constituents concerning the

affairs of an agency within another portfolio..."."

Commenting on that note, P Bayne Freedom of Information (Law Book Co Ltd, 1984), p 58, fn 51, observes:

"These statements were made in reference to the definition of

"official document of a Minister" before it was amended in 1983,

but they accord with the purpose of the amendment."

27. Mr Said then submits that even if the Tribunal accepts the respondent's contentions, he would argue that the amendment to the Act in 1983 relating to documents dealing with personal or electoral matters should not be considered to apply retrospectively to documents coming into Mr Dawkins' possession since 1977 up to the time of the amendment.

28. Generally, an amendment which has the effect of repealing an existing statutory provision is taken not to affect an accrued right unless clearly intended to do so (Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430, 440-1; s.8 of the Acts Interpretation Act 1901). In the present case, however, there was no clearly established prior entitlement to access documents of an electoral or personal kind in the possession of a Member of Parliament. The amendment spoken of above should therefore be regarded as clarificatory in character to remove any doubts about the matter. The suggestion implicit in the comment of Mr Bayne that the amendment reflected the pre-existing accepted interpretation of the Act is correct, in the opinion of the Tribunal.

29. For the reasons given above, the Tribunal concludes that the request of the applicant, in its natural and proper sense, does not relate to documents to which access is given under the Act. It is therefore incompetent and cannot support an application to this Tribunal under s.55 of the Act. Accordingly, the Tribunal dismisses the application on the ground that it lacks jurisdiction.