Administrative Appeals Tribunal Act 1975 (Cth), s.43(1), 44(1)

Freedom of Information Act 1982 (Cth)

Solicitor for the applicant : Australian Government

Solicitor

Counsel for the respondent : Mr J.B. Weber

Solicitor for the respondent: Sly and Weigall

1. The decision of the Administrative Appeals Tribunal given on

25 September 1992 be set aside and in lieu thereof there be

substituted a decision that the decision under review by the

Tribunal as varied by the decision of the Tribunal given on

9 June 1992 be affirmed.

2. There be no order as to the costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NEAVES J The Commonwealth of Australia ("the Commonwealth") has applied to the Court by way of appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from the decision of the Administrative Appeals Tribunal ("the Tribunal") given on 25 September 1992 upon the review of a decision made on or about 18 September 1991 pursuant to s.54 of the Freedom of Information Act 1982 (Cth) refusing to give access to certain documents or parts of documents requested by Mr Julian Beale MP ("the respondent") on the ground that the documents were exempt documents within the meaning of that expression in s.4(1) of the Freedom of Information Act.

2. The documents or parts of documents to which access was refused by the decision under review by the Tribunal may be identified by reference to the schedules, respectively marked "B", "C" and "D", attached to the letter dated 18 September 1992 by which the decision was conveyed to the respondent and by the number assigned to each document within those schedules. It is unnecessary for present purposes to further identify those documents.

3. On 9 June 1992, the Tribunal, after a conference held in accordance with s.34(1) of the Administrative Appeals Tribunal Act, made a decision by consent varying the decision under review. The effect of the variation was to grant to the respondent access to some of the documents, or parts of some of the documents, to which access had been refused by the decision made on or about 18 September 1991. The hearing of the application in so far as it concerned the question whether the respondent was entitled to access to the remaining documents the subject of the claims for exemption was adjourned to a date to be fixed.

4. The hearing before the Tribunal resumed on 23 September 1992 and continued on the following day. The Tribunal gave its decision on 25 September 1992, delivering oral reasons for that decision.

5. Before the Tribunal, it was asserted by the Department of Prime Minister and Cabinet (the respondent named in the proceeding before the Tribunal) and denied by the applicant before the Tribunal (the present respondent) that each of the documents in question fell within one or other of the provisions of Part IV of the Freedom of Information Act. The provisions of that Act on which the Department relied, were ss.33(1)(a), 33(1)(b), 33A, 36(1) and 43(1)(c).

6. As appears from the reasons given for its decision, the Tribunal examined each of the documents and, having considered the submissions advanced by the parties, found that each document was an exempt document within the meaning of that expression in the Freedom of Information Act, albeit that, in the case of some of the documents, the ground of exemption was different from that on which the decision under review was based. The Tribunal concluded its examination with the following sentence:

"The Tribunal finds that the respondent has established, to the

satisfaction of the Tribunal, the exemptions set out in these

reasons."

That sentence in the Tribunal's reasons for decision was, however, immediately followed by the following statement:

"The decision of the Tribunal is that the decision under review is

set aside and the matter remitted for re-consideration in

accordance with these reasons."

7. The Tribunal did not explain why its ultimate decision was cast in those terms or what re-consideration of the matter it had in contemplation. It is, perhaps, unfortunate that the Tribunal was not asked to explain those matters at the time it gave its oral reasons and announced its decision in those terms. The matter was, however, raised by correspondence with the Tribunal, it being suggested by the Commonwealth that an appropriate course to clarify the matter might be to arrange a directions hearing. The Court was informed that no such hearing eventuated.

8. The Commonwealth now seeks to have the decision of the Tribunal set aside and a decision substituted which will reflect the conclusion reached by the Tribunal that each of the documents with which it was concerned was an exempt document. It is submitted that the Tribunal had failed to give effect to the conclusions it had reached in relation to those documents and, in particular, that there was no occasion for the decision made on or about 18 September 1991 as varied by the decision of the Tribunal made on 9 June 1992 to be further considered by the primary decision-maker.

9. Counsel appearing for the respondent informed the Court that his instructions were that, although the orders sought by the Commonwealth were not consented to, no submission was to be put in opposition to the making of those orders.

10. Section 43(1) of the Administrative Appeals Tribunal Act provides:

"(1) For the purpose of reviewing a decision, the Tribunal

may exercise all the powers and discretions that are conferred by

any relevant enactment on the person who made the decision and

shall make a decision in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and:

(i) making a decision in substitution for the

decision so set aside; or

(ii) remitting the matter for reconsideration in

accordance with any directions or

recommendations of the Tribunal."

There is, thus, an express power in the Tribunal to set aside a decision under review and to remit the matter for reconsideration. However, it may only do so where, in order to give effect to the conclusions to which the Tribunal has come, it is appropriate to set aside the decision under review but the Tribunal is not in a position to formulate a decision in substitution for the decision set aside. That was not the situation in the present case. The Tribunal had reached a firm conclusion that each of the documents which the Tribunal had to consider was an exempt document so that the appropriate order for the Tribunal to have made was to affirm the decision under review subject, of course, to the variation of that decision effected by the decision of the Tribunal made on 9 June 1992.

11. In the light of the circumstances to which I have referred and in the absence of any cogent reason to support the decision of the Tribunal that the matter be remitted for re-consideration, the decision of the Tribunal is set aside and there is substituted for that decision a decision that the decision under review by the Tribunal as varied by the decision of the Tribunal given on 9 June 1992 be affirmed. There will be no order as to the costs of the application.