Case: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Outcome: cited
The applicant was wrong to suggest that, simply because the respondent did not adhere to its original decision, the Tribunal should have ordered it to make a new decision. The Tribunal was required to review the decision of the respondent itself, and to make the correct or preferable decision in accordance with the law and on the facts as it found them after its hearing. See Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J. The fact that the respondent appeared to have retreated somewhat from its original decision did not mean that the decision had disappeared. Nor did the Tribunal possess statutory power to compel the respondent to make another decision on this basis. Section 42D of the AAT Act confers on the Tribunal power to remit the decision to the person who made it for reconsideration. That power does not include power to compel the original decision-maker to make a decision different from that made in the first place. (Section 42D(2) provides that, if the decision is remitted, the original decision-maker may affirm or vary the decision, or set aside the decision and substitute a new decision.) There is no requirement that the Tribunal exercise the power to compel reconsideration, only a discretion to do so. No error of law can result from a failure to exercise the power. 40 In principle, there is nothing wrong with the Tribunal encouraging the parties to an application for review to resolve their differences. Section 42C of the AAT Act makes specific provision for the Tribunal to act in accordance with agreement reached between the parties or their representatives as to the terms of a decision of the Tribunal, if it is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal. It may be that, in the circumstances, when the applicant had made clear a number of times her intention to press for a decision of the Tribunal, rather than to agree to limiting her access to documents to those available under the Family Court Rules or to those offered to her by the respondent, the Tribunal went too far and delayed too long in attempting to persuade her to settle. This could not be characterised as an error of law. At the most, it was a well-intentioned but perhaps misguided attempt to have the proceeding resolved otherwise than by a decision of the Tribunal. 41 To the extent to which there was delay in the Tribunal proceeding, the delay appears to have been partly due to the applicant's illness, and to her consequent inability or unwillingness to move along her end of the proceeding. Whatever the objects of the FOI Act may say about promptness, it is not an error of law for the Tribunal not to hear and determine an application within any particular period after the filing of the application. Managing the large number of cases that come before the Tribunal is challenging enough without imposing on the Tribunal deadlines in particular types of cases. The object of promptness in s 3(2) of the FOI Act is exhortatory, not mandatory. Lack of promptness is not error of law.