Case: Harris v Australian Broadcasting Corporation [1983] FCA 242 ; (1983) 50 ALR 551
Outcome: followed
s 9(2) obligation to make s 9(1) documents available is not unqualified. Relevantly for present purposes, s 9(4) does not require the making available of a s 9(1) document containing "exempt matter" (the term "exempt document" to which this refers is defined in s 4(1)), though it does require, where practicable, the making available of a redacted version excluding that matter. I would note in passing that, whether or not identifying a s 9(1) document itself involves the making of a decision this is considered below the making available of it necessarily involves a decision that it does not contain exempt matter: see Harris v Australian Broadcasting Corporation [1983] FCA 242 ; (1983) 50 ALR 551 at 558. Though only relevant as providing part of the context of s 9, s 10(1) of the Act is noteworthy as providing some legislative recognition that documents may not have been made available or included in a statement, despite the requirements of s 9. Section 10(1) provides: " 10 Unpublished documents not to prejudice public (1) If a document required to be made available in accordance with section 9 , being a document containing a rule, guideline or practice relating to a function of an agency, was not made available, or was not included in a statement made available at each Information Access Office , as referred to in that section, before the time at which a person did, or omitted to do, any act or thing relevant to the performance of that function in relation to him or her (whether or not the time allowed for publication of a statement in respect of the document had expired before that time), that person, if he or she was not aware of that rule, guideline or practice at that time, shall not be subjected to any prejudice by reason only of the application of that rule, guideline or practice in relation to the thing done or omitted to be done by him or her if he or she could lawfully have avoided that prejudice had he or she been aware of that rule, guideline or practice." (Emphasis added.) The AD(JR) Act The claim prosecuted now by Mr Duncan relates to s 13 of the AD(JR) Act. For present purposes it is sufficient to note that, subject to specified exceptions, s 13(1) provides that where a person makes a decision to which the Act applies, any person who is entitled to apply to this Court or to the Federal Magistrates Court under s 5 in relation to the decision may, by giving written notice to the decision maker, request that person to provide him or her a statement in writing setting out the findings on material questions of fact relating to that decision, referring to the evidence or other material on which those findings were based and giving reasons for the decision. A person who is "aggrieved" by a decision to which the Act applies may apply for an order of review of that decision on the grounds specified in s 5 of the AD(JR) Act. I would note in passing that one of Centrelink's bases for opposing Mr Duncan's application is that Mr Duncan is not a "person aggrieved" for s 5 purposes, hence he was not entitled to make a s 13(1) request in any event. It is equally contended that the CEO (or his delegate) makes no "decision" for AD(JR) Act purposes when performing the function imposed by s 9 of the Act. Other Matters I earlier noted that the CEO did not, as s 13(3) of the AD(JR) Act requires, give Mr Duncan a notice that the CEO was of the opinion that he was not entitled to make his latter two requests. Absent such a notice Mr Duncan could not apply to this Court under s 13(4A) of the Act for an order that he was entitled to make a s 13(1) request. It would seem that for this reason, he has sought declaratory relief to the same end under s 21 of the Federal Court of Australia Act 1976 (Cth). Additionally, no reliance has been sought to be placed upon the provisions of s 7(2) of the AD(JR) Act. It is common ground that the provisions of s 26 of the FOI Act (which relate to the provision of reasons for a decision refusing to grant access to a document to which access had been requested) is of no present relevance. I would note in passing that s 13(1) of the AD(JR) Act does not apply to such a refusal decision: see s 26(1A) of the FOI Act. One final matter of statutory and jurisdictional significance that I should mention arises out of observations I made at the hearing of Centrelink's strike out motion. In giving Mr Duncan leave to file an amended application I expressed the view that what, possibly, he was seeking was an order that the CEO discharge the statutory obligation imposed by s 9. Relief to that end has not been sought in the present application. Rather the relief sought is the provision of a statement of reasons in relation variously to a decision that the FOI manual was not one to which s 9 applied and/or a decision to prepare a s 9(2)(b) statement which did not list all documents of the types enumerated in s 9(1).