Case: Bienstein v Attorney-General [2007] FCA 1174 (2007) 162 FCR 405
Outcome: cited
2003, the applicant, Ms Bienstein, made a separate request to each of the Attorney-General for the Commonwealth ("the Attorney-General") and the Minister for Justice and Customs (now the Minister for Home Affairs) (in each case, "the Minister") for access to documents. The Attorney-General and the Minister each purported to transfer the request to the Attorney-General's Department, pursuant to s 16 of the FOI Act. Ms Bienstein applied to the Tribunal for review of a deemed decision, pursuant to ss 55 and 56 of the FOI Act, on the basis that, at the expiration of the requisite period from the making of each request, there had not been a decision. In each case, the Tribunal determined that it did not have jurisdiction to deal with the application for review. See Re: Bienstein and Attorney-General (Cth) [2004] AATA 896 and Re: Bienstein and Minister for Justice and Customs [2004] AATA 895. The Tribunal concluded that each request for access to documents had been transferred validly to the Attorney-General's Department. Ms Bienstein appealed to this Court from those two decisions. She was successful on appeal. The decision of the Tribunal on each of the applications for review was set aside and each of the cases was remitted to the Tribunal to be heard and decided again. See Bienstein v Attorney-General [2007] FCA 1174 (2007) 162 FCR 405. The appellant's amended notice of appeal contained several other questions, in the following terms: Whether a decision deemed by the FOI Act to have been made "for the purpose of making an application to the Tribunal" may be taken in Tribunal proceedings as deemed for a different or an additional purpose. Whether an FOI request directed to a Minister may lawfully be transferred or referred for processing to the Minister's Department and whether the effect of a valid transfer is to free the transferor agency or Minister of the duty to furnish to the applicant notices of acknowledgment and decision in accordance with s 15 FOI Act. What, in a FOI proceeding where the adequacy of searches is in issue, constitutes compliance with s 37 AAT Act? What duties did the decision in Bienstein v Attorney-General and Justice Minister [2007] FCA 1174 settle on: (a) lawyers who appeared for the Respondents in that proceeding and their instructor(s); (b) the Attorney-General's Department and the Departmental Officer in possession of the purportedly transferred requests; (c) the Respondents; (d) the Tribunal; (e) the Department of the Prime Minister and Cabinet, where the FOI legislation is administered by the Privacy &amp; FOI policy Branch and the responsible Minister, being Cabinet Secretary, Senator Faulkner; To what extent is the Tribunal competent to enforce the Applicant's rights under s 11 FOI Act in applications brought on the basis of the Respondent's failure to furnish a timely decision on the request. Whether each government agency and Minister has a duty under the FOI Act to establish procedures consistent with that legislative scheme for the receipt and processing of requests in and by the said agency or Ministerial office and for the receipt and implementation of consequential Tribunal and Court decisions. These questions are posed in a way that makes them academic. They are in general terms, rather than terms that are specific to the decision of the Tribunal. A question of law on which an appeal can be brought pursuant to s 44(1) of the AAT Act is a means by which a party to a proceeding before the Tribunal may invite the Court to find that the Tribunal has made an error of law affecting its decision. Section 44(1) of the AAT Act confers on the Court, as part of the judicial power of the Commonwealth under Ch III of the Constitution , jurisdiction to deal with appeals on such questions. The Court does not have power to give general expositions of the law on various subjects, even if those subjects are in some way related to a decision of the Tribunal. Thus, the Court cannot provide the sort of advice that is apparently sought by each of questions 3, 4, 5 and 6. The general effect of questions 1 and 2 was narrowed by Ms Bienstein's oral arguments to the question whether the Tribunal had power to order the Attorney-General and the Minister to make decisions on Ms Bienstein's requests for access to documents. That question has been dealt with above. To the extent to which questions 1 and 2 in the amended notice of appeal are in broader terms, they cannot be dealt with. The Tribunal's ultimate finding The Tribunal's decision of 13 June 2008 was to affirm the decision deemed to have been made by each of the Attorney-General and the Minister to refuse access to documents as requested by Ms Bienstein. This decision was based on a finding that all reasonable steps had been taken by each of the Attorney-General and the Minister to find the documents Ms Bienstein sought and that, except for the documents that had been located and dealt with previously, the documents to which Ms Bienstein requested access did not exist. By s 24A of the FOI Act, a finding in these terms justifies a refusal of a request for access to a document. Whether all reasonable steps had been taken, and whether documents exist, are questions of fact. Findings of fact on those questions can only be overturned in this Court if there is some error of law on the part of the Tribunal that leads to a conclusion that the finding is not a proper result of the exercise of the Tribunal's powers. Ordinarily, a finding of fact of this nature will mean that, even if there are errors of law on the part of the Tribunal, if those errors do not taint the findings of fact under s 24A of the FOI Act, the Tribunal's decision will stand.