Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (1998) 194 CLR 355
Outcome: referred to
Section 55 provides relevantly as follows: (1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of: (a) a decision refusing to grant access to a document in accordance with a request; or (aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or (ab) a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or (b) a decision to defer the provision of access to a document; or (c) a decision refusing to allow a further period for making an application under subsection 54(1) for a review of a decision; or (d) a decision under section 29 relating to imposition of a charge or the amount of a charge; or (e) a decision under section 30A relating to remission of an application fee; or (f) a decision to grant access to a document only to a qualified person under subsection 41(3); or (g) a decision refusing to amend a record of personal information in accordance with an application made under section 48 ; or (h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48. (2) Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review. 15 Section 56(1) provides: (1) Subject to this section, where: (a) a request has been made to an agency or Minister in accordance with section 15 ; and (b) the period of 30 days, in relation to the request, mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and (c) notice of a decision on the request has not been received by the applicant; the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55 , be deemed to have made, on the last day of that period, a decision refusing to grant access to the document. 16 Section 58(1) of the FOI Act provides: Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister. 27 Applying the principles laid down in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (1998) 194 CLR 355, the Tribunal found that the failure to notify the applicant of the transfer in accordance with s 16(4) of the FOI Act did not invalidate the transfer. In the Tribunal's view, Parliament intended the notification requirement to be procedural. It intended that the person making the request be notified that the request was being handled by another agency. The requirement was for notification "where a request is transferred". In the Tribunal's view, this meant that the notification was to occur after the transfer had occurred. A failure to comply with s 16(4) did not affect the transfer, let alone render it invalid. 28 The Tribunal then dealt with the final question, whether the requests had been deemed to be refused while in the possession of the Attorney-General and the Justice Minister respectively. In the absence of any extension of time pursuant to s 15(6) of the FOI Act , the 30-day period for a decision on the request to the Attorney-General would have expired on 8 October 2003. The transfer occurred on 2 October 2003, within that 30-day period. Similarly, the request was received by the Justice Minister by 11 September 2003 and the date of the transfer was 25 September 2003. The transfer occurred within 30 days of the Justice Minister's receipt of the request. In each case, therefore, there was no deemed decision while the requests were in the possession of the recipients of them. No decision had been made by either recipient. The Tribunal only had jurisdiction if a decision had been made, or was deemed to have been made, so it did not have jurisdiction in either case. 29 At the heart of the applicant's case is the proposition that the transfer of a request pursuant to s 16(1)(b) does not absolve the original recipient of the request from the obligation to search its records for documents to which the request relates, and to respond to the request in an appropriate manner in relation to each relevant document in its possession. In other words, a transfer of the whole of a request, without regard to what documents the transferor has, or may have, that would answer the request is not a valid transfer under s 16(1)(b). The original recipient of the request retains an obligation to respond with a decision on the request within the time required, and can only transfer so much of the request as relates to identified documents that have a subject-matter more closely connected with the functions of another agency than with those of the recipient of the request.