Brighton-Stangstins and Australian Competition and Consumer Commission [2009] AATA 1006 (8 May 2009)

Last Updated: 10 March 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 1006

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4884

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JASON BRIGHTON-STANGSTINS

Applicant

And

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Respondent

DECISION

Tribunal

G. D. Friedman, Senior Member

Date 8 May 2009

Place Melbourne

Decision

The Tribunal affirms the decision under review.

..............................................
Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2008/4884

JASON BRIGHTON-STANGSTINS

and

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

MELBOURNE

10.00 AM, FRIDAY, 8 MAY 2009

The applicant appears in person

MS E. ARDUCA appears for the respondent

EXTRACT OF TRANSCRIPT

MR FRIEDMAN: Well, in this matter the issue is quite specific. The applicant on 1 July 2008 lodged a request for documents under the Freedom of Information Act. There were two categories of documents. One was training course material relating to the ACCC and the second one was copies of ACCC documents or procedures. And he later widened his application on 2 July 2008 to include employment history of Mr Mark Quinane, including particulars such as qualifications, employment history in the Australian [P]ublic [S]ervice, and training undertaken while an officer of the APS and for a position description of Mr Quinane as at 23 January 2007. And the applicant said he didn’t seek access to personal details, rather, information of the nature of his employment as an APS officer and no access to information regarding any disciplinary matters.

Subsequently, documents were released in relation to request numbers 1 and 2, or categories 1 and 2, and on the day of the hearing today Ms Arduca, on behalf of the respondent, indicated that the respondent will grant access to the position description if it exists in relation to Mr Mark Quinane as at 23 January 2007, or another document that might not be exactly that, but is substantially that. That access will be granted outside the Freedom of Information Act and will be provided to the applicant as soon as practicable.

That then leaves the third category; the employment file of Mr Mark Quinane subject to deletion of his personal details. The respondent wrote to the applicant indicating to him that processing of the request would involve a charge of $363.98. That was subsequently revised and the estimated total in a written estimate provided to the tribunal in December 2008 was $249.06. And I’m not sure, as a result of the decision in relation to document 4, whether that might, in fact, be reduced slightly. The amount would be around – let’s just say the amount will be around $200 for convenience.

The applicant sought remittal – waive or remittal of the application fee and processing costs on the grounds of public interest and the relevant section of the Freedom of Information Act is section 29, subsection (5) ... which states:

Without limiting the matters the agency ... or Minister ... may take into account in determining whether or not to reduce or not impose the charge, the agency or Minister must take into account –

and (b) reads –

[w]hether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public.

Now, the applicant in this case has raised two main grounds for seeking to rely on section 29, subsection (5)(b). The first one is that he was subject to procedural unfairness in a previous proceeding that he had in this tribunal and the second main area was the area specified in subsection 29(5)(b), the public interest. Now, in dealing with the first aspect, the applicant said that when he applied for access to documents and the matter was dealt with by the tribunal, he was not given access to all material and he also said that there was a jurisdictional issue in relation to the decision by Mr Fice, a member of this tribunal, in which the tribunal declined to recommend to the Attorney-General that the cost to the applicant in relation to his previous application be paid by the Commonwealth.

Now, in relation to the procedural unfairness, I don’t have the full file in front of me of the previous Freedom of Information application, but I have read the decision by Mr Fice. This originally goes back to the failure by Mr Quinane, who was an internal review officer, to record discussions with other officers of the department and also his discussions with Westpac Bank in relation to documents that were sought before the tribunal, where Westpac had objected to the release of documents to the applicant and Mr Quinane did not make a record of the conversation with Westpac officers, nor did he make written records in relation to conversations he had with other officers of the respondent. And the applicant says that the absence of written records in those two matters – that is, from Westpac and with other officers – may have prejudiced him in his application for costs under the Freedom of Information Act and said, as a result of that, there is jurisdictional error by Mr Fice. When questioned, the applicant said that, for reasons of costs, he did not seek review of that decision by a higher authority, that is, the Federal Court.

I don’t see any procedural fairness [issue] at all. As far as I can ascertain, the applicant in this case was given ample opportunity to put all relevant material before the tribunal in his previous application, and he did so. The matter was ultimately ... dismissed by consent. My understanding is the reason for that was because he was given access to all the documents he sought, even the documents produced by Westpac, because they had been made available to him in the course of other proceedings. So there was a decision by this tribunal by consent under section 43C of the Administrative Appeals Tribunal Act. The question of whether the tribunal should recommend to the Attorney-General that the applicant’s costs of that application be paid by the Commonwealth was agreed by the applicant and the respondent to be decided on the papers.

I have read the decision by Mr Fice. He, in my view, covered all relevant aspects of the application and, in any event, as I said to the applicant today during the proceedings, for me to determine that there was jurisdictional error, or lack of jurisdictional – however the applicant might have phrased it, by another member of this tribunal, is certainly not open to me to do. It’s not a question for another member to determine. That is a question for a court to decide, and I am certainly not going to sit in judgment, whether it’s a formal appeal, or informal judgment, on a decision by another member of this tribunal on a jurisdictional question. So for those reasons, I don’t find that there is any procedural fairness [issue] which would cause me to find in the applicant’s favour under section 29(5)(b). Section 29(5)(b) is quite specific in its form, that is, the general public interest, or substantial section of the public.

So I now turn to that section specifically. Basically what the applicant is saying in relation to that is that he wants documents relating to Mr Quinane’s background, his educational qualifications, presumably where he has worked previously, the duties of his current job, or as they were at January 2007, and training courses or other courses that Mr Quinane may have undertaken. When the applicant obtains that information, or if he obtains that information, he will then be a in position – that is, the applicant – to either lodge a complaint with the Ombudsman about aspects of the ACCC administration, because Mr Quinane either did not have the necessary training or qualifications or, by not recording his conversations with Westpac and other officers, he was breaching the Public Service Act or regulations in particular, or more generally was not adhering to his role as a public servant, and the flow-on effect from that would be that, by the applicant obtaining that information, he could demonstrate that there is a deficiency in the ACCCs operations; therefore, something needs to be done about it; therefore, public administration would be improved by the disclosure by the applicant in this case of the deficiencies in the actions by Mr Quinane that would improve public administration.

Now, that’s a fairly long-winded summary, but I believe that it’s essentially a correct summary of the applicant’s position in this case: that, if I can put it more succinctly, he was going to improve – the applicant is going to improve public administration, or his actions in seeking the documents is going to improve public administration, and he is saying that if he doesn’t do it, basically, then no one else really is going to do it, or if he is not saying that specifically, he is saying that he has the opportunity to do it because he has identified a deficiency, and when he gets the documents, he will expose them and everybody will be better off.

Ms Arduca, on behalf of the respondent, says that basically there are so many steps involved in that process that I have just outlined that it would not result – the giving of these documents in particular would not have a substantial effect on public administration. There may well be a view that Mr Quinane should have done more to keep accurate records, but Ms Arduca is saying whether that’s the case or not, that is a specific example in a specific agency and giving details of that person’s credentials does not necessarily mean that there would be a benefit to the public in terms of public ... administration. I was referred to a number of authorities. Lianos, Encel and McKinnon were the main ones that were referred to me by the applicant. Well, not Lianos. That one was by the respondent.

Deputy President Forgie in Encel referred to the public interest, and that decision is certainly relevant, but I agree with Ms Arduca that that particular issue was one of specific relevance to the public at the time, whereas what is being sought by the applicant today is, at the highest, a very general view that public administration can be improved if he has access to these documents, and I see a difference between what he is seeking and the matters that were referred to in Encel. In my view, the public at large would have very little interest in the applicant obtaining the documents in question as a result of this freedom of information request.
I agree, of course, that the public would want to have a more efficient public service and would want the ACCC to be a more efficient organisation. That is not the same as saying that the public interest would, necessarily, be served by a particular individual, in this case, the applicant, obtaining what are specific documents relating to a person’s qualifications, training and whatever else is sought in this application. In my view, there is no direct connection between the public interest in improved government administration and the specific matters involved in Mr Quinane’s documents ..., so I don’t believe that the first part of section 29(5)(b), that is, the giving of access to the documents in question, is in the general public interest.

Now, on the question of whether the giving of the documents would be in the interests of a substantial section of the public, the general arguments that were used are similar, of course, but in this case, the applicant has said that he would lodge an application or a complaint to the Ombudsman. Presumably, if there ... [were] a favourable response, the decision of the Ombudsman would be widely disseminated to a substantial section of the public. ... I don’t know whether the Ombudsman would make a finding that the applicant would be seeking, if such a complaint ... [were] made. Certainly, with electronic communications and the internet, it is very easy to make things available to the public at large by means of putting something on the internet, and everybody in the world, really, can read it.

But whether the giving of documents relating to Mr Quinane’s qualifications and credential[s] are in the interests of a substantial section of the public, once again, I do not find that that is the case. The public at large, or a substantial section of the public at large, in my view, would have very little, if any, interest in those particular documents. It seems to me that the applicant has a specific interest in the documents because they apply to the matters that he has an interest in, in relation to the respondent, and examples are the previous requests that he has made and his interest in the general area relating to the activities of the ACCC, but in my view a substantial section of the public would not be interested in those specific documents, and, once again, the connection between those documents referring to Mr Quinane specifically and the interests of a substantial section of the public, in my view, is not made out.

Ms Arduca referred to the High Court decision of Sinclair where the expression “public interest as a whole” in - paragraph 16 says:

“Public interest as a whole” indicates to my mind the warden failed to understand that, irrespective of the interests of the objectors or their number, and, indeed, irrespective of the existence of an objection on that ground, he was bound to consider whether the granting of the application would prejudicially affect the public interest. If he had realised this he could not, in my opinion, have drawn the irrelevant distinction between the views of a section of the public and the public interest as a whole.

The applicant also in this case referred to the amount of the charges, around $200, which he said ... is such a small amount ... [it] should be waived. In my view, that is really not an issue for me to decide because section 29(5)(b) refers to the public interest and doesn’t refer to the actual amounts involved. For those reasons, I find that 29(5)(b) does not apply in this case and that the decision not to waive or remit the processing charges should be affirmed.

END OF EXTRACT