Re Minister of Education and Youth Affairs v Warwick Bracken [1984] FCA 419; 6 FCR 197 (21 December 1984)

FEDERAL COURT OF AUSTRALIA

Re: MINISTER OF STATE FOR EDUCATION AND YOUTH AFFAIRS
And: WARWICK BRACKEN
No. ACT G 343 of 1984
Freedom of Information
(1985) ADMN para 96 - 048 / [1984] FCA 419; 6 FCR 197

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Freedom of Information - Refusal of access on ground that documents exempt documents - Conclusive certificate that documents exempt - Review by Administrative Appeals Tribunal - Decision that reasonable grounds that the documents were exempt did not exist - Appeal to Federal Court of Australia on question of law - Obligation of Minister to implement decision of Tribunal - No power to extend time for implementation of decision - Stay of implementation of decision of Tribunal granted.

Freedom of Information Act 1982, ss. 11, 33A, 58, 58A

Administrative Appeals Tribunal Act 1975, sub-s. 44A(2)

Administrative Law - Freedom of information - Exempt documents - Certificate of Minister in force - Determination of the Administrative Appeals Tribunal - "No reasonable grounds" - Appeal to the Federal Court of Australia - Obligations on Minister consequent upon the Tribunal's decision - Time limits - Section 58A of the Freedom of Information Act 1982 (Cth) - Application by Minister to stay the implementation of the Tribunal's decision pending appeal - Effective interlocutory relief available - Administrative Appeals Tribunal Act 1975 (Cth), ss 44(1) 44A(2) - Freedom of Information Act 1982 (Cth), ss 11, 33A, 55(1), 58, 58A - Federal Court of Australia Act 1976 (Cth), s 23 - Federal Court Rules, 0 19, r 3. The machinery of s 58A(1) of the Freedom of Information Act 1982 requires that where the Administrative Appeals Tribunal has determined that no reasonable grounds exist for the claim that a document is an exempt document under s 33A of the Act, being a document in respect of which a certificate of the Minister is in force under that section, the Minister is obliged, not later than twenty-eight days after the Tribunal's determination is communicated to such Minister, to make a decision either to revoke or not to revoke the certificate and in the case of a decision not to revoke, the Minister is obliged to furnish written notice of that decision to the person who requested the document and to cause a copy of the notice to be laid before each House of Parliament. Held: (1) In a case where an appeal by the Minister against such a determination of the Tribunal is pending and where the twenty-eight-day period referred to in s 58A(1) of the Act is to expire prior to the hearing of the appeal, there being a substantial question to be argued on the hearing of the appeal and the balance of convenience requiring that the status quo be preserved in the meantime, the court will grant interlocutory relief to preserve such status quo. (2) Without deciding what effect its order might have upon the Minister's obligations under s 58A of the Act, the court would grant an order staying the implementation of the Tribunal's decision until the determination of the appeal or further order, the more effective relief involving an extension of the twenty-eight day period provided for in s 58A(1) of the Act not being authorised by the Act, or by s 44A(2) of the Administrative Appeals Tribunal Act 1975 or by s 23 of the Federal Court of Australia Act 1976.

HEARING

Canberra, 1984, December 5, 21. 21:12:1984
NOTICE OF MOTION

Notice of motion seeking an order staying that part of a decision of the Administrative Appeals Tribunal which was the subject of an appeal to the Federal Court of Australia.

B J Bonsey (solicitor) for the applicant.

The respondent in person.
Cur adv vult

Solicitor for the applicant: Australian Government Solicitor.
GFV

ORDER

1. Pursuant to sub-section 44A(2) of the Administrative Appeals Tribunal Act 1975, the implementation of that part of the decision of the Administrative Appeals Tribunal given on 7 November 1984 in matter No. A84/25 in which Warwick Bracken was the applicant and the Minister of State for Education and Youth Affairs was the respondent whereby it was determined that there do not exist reasonable grounds for the claim that the whole of documents 2, 3 and 4 referred to in paragraph 14 of the Tribunal's Reasons for Decision are exempt documents under section 33A of the Freedom of Information Act 1982 and it was recommended that consideration be given to the release of those documents subject to appropriate deletions pursuant to section 22 of that Act be stayed pending the hearing and determination of the appeal to this Court instituted by the Minister of State for Education and Youth Affairs by notice of appeal dated 4 December 1984 or until further order.

2. The costs of this application be costs in the appeal.

Orders accordingly

DECISION

On 5 December 1984 on the application of the Minister of State for Education and Youth Affairs ("the applicant") I made an order pursuant to sub-section 44A(2) of the Administrative Appeals Tribunal Act 1975 that the implementation of that part of the decision of the Administrative Appeals Tribunal ("the Tribunal") given on 7 November 1984 in matter No. A84/25 in which Warwick Bracken ("the respondent") was the applicant and the Minister of State for Education and Youth Affairs was the respondent whereby it was determined that there did not exist reasonable grounds for the claim that the whole of documents 2, 3 and 4 referred to in paragraph 14 of the Tribunal's Reasons for Decision were exempt documents under section 33A of the Freedom of Information Act 1982 and it was recommended that consideration be given to the release of those documents subject to appropriate deletions pursuant to section 22 of that Act be stayed pending the hearing and determination of the appeal to this Court instituted by the Minister of State for Education and Youth Affairs by notice of appeal dated 4 December 1984 or until further order. I also ordered that the costs of the application be costs in the appeal. I then said that I would give my reasons for making those orders as soon as possible. What follows are those reasons.

2. Sub-section 44(1) of the Administrative Appeals Tribunal Act 1975 provides that a party to a proceeding before the Tribunal may appeal to this Court, on a question of law, from any decision of the Tribunal in that proceeding. Pursuant to that provision the applicant appealed to this Court from that part of the decision of the Tribunal given and notified on 7 November 1984 to which reference has already been made.

3. The Freedom of Information Act 1982 provides in section 11 that, subject to the Act, every person has a legally enforceable right to obtain access in accordance with the Act to a document of an agency, other than an exempt document. An exempt document includes a document which by virtue of a provision of Part IV of the Act is an exempt document. One of the provisions in Part IV is section 33A which, so far as material, provides that, a document is an exempt document if disclosure of the document under the Act, would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State. Sub-section (2) of that section provides that where a Minister is satisfied that a document is an exempt document for a reason referred to in sub-section 33A(1), the Minister may sign a certificate to that effect (specifying that reason) and, subject to the operation of Part VI of the Act, such a certificate, so long as it remains in force, establishes conclusively that the document is an exempt document referred to in sub-section (1). Part VI of the Act contains provisions for the review of decisions made under the Act.

4. The decision of the Tribunal was given upon an application by the respondent for review of a decision refusing to grant access to the documents in question in accordance with a request made under the Act (see sub-section 55(1)). Access to the documents had been refused on the basis that the documents were exempt documents by virtue of sub-section 33A(1) and there was in existence in respect of those documents a certificate signed by the applicant under sub-section (2) of that section.

5. By virtue of section 58 of the Act the powers of the Tribunal did not extend to reviewing the decision to give the certificate under section 33A. However, the Tribunal was entitled, if the respondent so requested, to determine the question whether there existed reasonable grounds for the claim that the documents referred to in the certificate were exempt documents.

6. The question of law which the applicant desires to have determined by this Court on the hearing of the appeal is whether it was open to the Tribunal, having found that each of the documents contained exempt matter, to determine that there did not exist reasonable grounds for the claim that the documents were exempt documents under section 33A.

7. On 4 December 1984 the applicant filed notice that the Court would be moved on 5 December 1984 for an order staying that part of the decision from which the applicant had appealed to this Court. An order was made in Chambers under Order 19, r.3 of the Federal Court Rules directing that the time before which notice of motion was to be served on the respondent be abridged to 6pm on 4 December 1984.

8. When the matter came before the Court on 5 December 1984 the applicant was represented by Mrs Bonsey of the Australian Government Solicitor's Office. The respondent appeared in person.

9. Leave was granted to the applicant to file an amended notice of motion in which the orders sought were an order that the part of the decision of the Tribunal the subject of the appeal to this Court "be stayed from the time immediately after (that decision) was made and before it was communicated to the Minister of State for Education and Youth Affairs" and such other order as the Court might think fit. The Court was informed that on 23 November 1984 application was made to the Tribunal to vary that part of its decision which is the subject of the appeal to this Court, the Tribunal being urged to do so because its finding that the documents in question contained exempt matter was said to be inconsistent with its finding that reasonable grounds did not exist for the claim that the documents are exempt documents under section 33A. In consequence, it was said that the decision made by the Tribunal was one falling outside its power. Before the hearing concluded the Court was informed that the Tribunal had given its decision on that application, declining to vary its earlier decision.

10. The reason for the making of the application for a stay order is to be found in section 58A of the Freedom of Information Act 1982. By virtue of sub-section (1) of that section, where as in this case the Tribunal has determined that there do not exist reasonable grounds for the claim that a document is an exempt document under section 33A being a document in respect of which a certificate is in force under that section, the applicant as the appropriate Minister is obliged, not later than 28 days after the determination of the Tribunal is communicated to such Minister, to make a decision either to revoke or not to revoke the certificate. Certain consequences follow depending upon which decision is made. In a case such as this where the certificate was given under sub-section 33A(2), the consequence of a decision that the certificate be revoked is to withdraw the claim that the document is an exempt document, while the consequence of a decision not to revoke the certificate is that the Minister is obliged to cause notice in writing of the decision to be furnished to the person who requested the document and to cause a copy of the notice to be laid before each House of the Parliament within 5 sitting days of that House after the notice is so furnished. On the basis that the decision of the Tribunal was communicated to the Minister on 7 November 1984 the period of 28 days referred to in sub-section 58A(1) was to expire on 5 December 1984.

11. The applicant relied, in support of the application for interlocutory relief pending the hearing and determination of the appeal to this Court, upon sub-section 44A(2) of the Administrative Appeals Tribunal Act 1975 or alternatively on section 23 of the Federal Court of Australia Act 1976.

12. Sub-section 44A(2) of the Administrative Appeals Tribunal Act 1975 provides -

"(2) Where an appeal is instituted in the Federal
Court of Australia from a decision of the
Tribunal, that Court or a Judge of that Court may
make such order or orders staying or otherwise
effecting the operation or implementation of
either or both of the following:

(a) the decision of the Tribunal or a part
of that decision; and

(b) the decision to which the proceeding
before the Tribunal related or a part of
that decision,

as that Court or Judge considers appropriate for
the purpose of securing the effectiveness of the
hearing and determination of the appeal."

13. Section 23 of the Federal Court of Australia Act 1976 provides -

"23. The Court has power, in relation to matters
in which it has jurisdiction, to make orders of
such kinds, including interlocutory orders, and
to issue, or direct the issue of, writs of such
kinds, as the Court thinks appropriate."

14. It was submitted that the applicant was by reason of the events which had occurred placed in a dilemma. It was said that, if that part of the decision of the Tribunal the subject of the appeal to this Court was a decision that it was not open to the Tribunal to make, the period of 28 days referred to in sub-section 58A(1) of the Freedom of Information Act 1982 had not commenced to run as no valid determination of the Tribunal had been communicated to the applicant. On the other hand, if the decision of the Tribunal was one open to it, the period of 28 days referred to in that sub-section was to expire on the day the matter was before the Court, 5 December 1984. The applicant, it was submitted, should not be placed in the position of having to act in accordance with section 58A until the appeal to this Court had been determined.

15. I was satisfied that there was a substantial question to be argued on the hearing of the appeal to this Court and that the balance of convenience required that the status quo be preserved pending the hearing and determination of that appeal. The respondent made no submission to the contrary and I formed the view that I should make an appropriate order if such could be framed and the Court had power to make it.

16. The most effective means of preserving the status quo pending the determination of the appeal would have been an order extending the period of 28 days referred to in sub-section 58A(1) of the Freedom of Information Act 1982. The statute, however, provides no machinery by which that time might be extended and, in my view, neither sub-section 44A(2) of the Administrative Appeals Tribunal Act 1975 nor section 23 of the Federal Court of Australia Act 1976 provides authority for the Court to make such an order. The absence of such a power in circumstances such as those disclosed by the present case is a matter to which the legislature may need to give attention.

17. To stay the operation of the relevant part of the decision of the Tribunal pursuant to sub-section 44A(2) or section 23 of the statutes referred to appeared to me not to to be an effective order for the Court to make. The decision of the Tribunal amounted to no more than a declaration as to the absence of reasonable grounds for the claim that the documents were exempt documents. That decision had already been communicated to the Minister. The decision did not itself have further operative effect and there was nothing upon which such a stay would operate.

18. Likewise, there seemed to be no basis upon which the order sought in the amended notice of motion could be made. If the decision of the Tribunal was one within its power, it had already been communicated to the applicant and no order of the Court could alter that fact.

19. It seemed to me, however, that, as the Tribunal's decision remained to be implemented, albeit in the manner prescribed by section 58A of the Freedom of Information Act 1982, it was open to the Court under sub-section 44A(2) of the Administrative Appeals Tribunal Act 1975 to make an order staying until the determination of the appeal or further order the implementation of the Tribunal's decision. In reaching that conclusion and the further conclusion that it was appropriate in the circumstances of the case to make that order I formed no concluded view on the question as to what, if any, effect that order might have upon the applicant's obligations under section 58A of the Freedom of Information Act 1982. When making the order on 5 December 1984 I expressly stated that I was expressing no view on that question.