Case: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 46 FLR 409
Outcome: cited
proposition disposes of another of Ms Bienstein's arguments in the present case. That is the argument that the making of a decision would have given the Tribunal the opportunity to look at the reasons for a decision to see if they complied with the FOI Act. In reviewing a decision of any kind, the function of the Tribunal is not to decide whether the reasons given by the original decision-maker are correct or adequate or appropriate. The task of the Tribunal is to make its own decision and to do so by starting afresh. This has been recognised since Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J. A comparison of terminology between different statutes, or even between different provisions in the same statute, can sometimes be useful in determining the meaning of a statutory provision. Differences in terminology are not necessarily a reliable indicator of an intention to produce different results. There is a clear purpose behind the use of the words "for the purpose of enabling an application to be made to the Tribunal" in s 56(1) of the FOI Act. That purpose is to make it clear that it is not necessary for a person affected by a deemed decision to refuse access to documents to go through the internal review process for which s 54 provides. In the case of an actual decision to refuse access to documents, internal review under s 54 would be a prerequisite to an application to the Tribunal for review under s 55. In the case of a deemed decision to refuse, Parliament has obviously taken the view that it would be pointless to waste the time of a person requesting access to documents by requiring him or her to seek internal review of a decision that had not in fact been made. By contrast, the effect of the words "for all purposes of this Act" in s 30A(1B) would be to subject a deemed decision to refuse to remit an application fee to the same requirement of internal review as would be imposed in the event of an actual decision refusing to remit the fee. A comparison of these two provisions with s 25(5) of the AAT Act is of little value. The AAT Act is a general application. The specific provisions of the FOI Act would take precedence over the general provisions of the AAT Act in the event of conflict. Given that the specific words of both s 56(1) and s 30A(1B) of the FOI Act have identifiable purposes, any attempt to attach significance to the absence of qualifying words in s 25(5) of the AAT Act cannot succeed. The argument that s 58(1) of the FOI Act gives the Tribunal power to review a failure to make a decision is not correct. Section 58(1) constitutes the conferral on the Tribunal of wide powers in a proceeding to review a decision or, as in the present case, a deemed decision. The conferral of a power "to review any decision that has been made" does not amount to the conferral of a power to review a failure to make a decision. For the Tribunal to attempt to review a failure to make a decision would be a distraction from the task of the Tribunal, which is to make the correct or preferable decision, on the material before it, in relation to the request for access to documents. It is not to the point to ask why any Minister would ever make a decision if there is no obligation to do so. Doubtless, many Ministers do make decisions, because they see it as important to respond to requests for access to documents, rather than to allow the responsibility to be undertaken by the Tribunal on a review of a deemed decision refusing to grant access to documents. The Tribunal was correct to determine, in its decision of 4 January 2008, that it had no power to direct the Attorney-General or the Minister to make a decision, but had jurisdiction to review the decisions deemed to have been made by the Attorney-General and the Minister to refuse Ms Bienstein's requests for access to documents. As the Tribunal recognised at [29] of its reasons for this decision, it had a power under s 42D of the AAT Act to remit a decision for reconsideration. If it had chosen to exercise this power, and remitted the relevant deemed decision to each of the Attorney-General and the Minister, each of them might have been motivated to make a decision. It is by no means clear that this would have occurred, because the advocate representing both the Attorney-General and the Minister had made it clear to the Tribunal at a directions hearing that neither proposed to make a further decision. This may have been a reason for the Tribunal refraining from exercising its power to remit under s 42D. In any event, that power is a discretionary one. The exercise of a discretion conferred on the Tribunal is immune from appeal to this Court unless it raises a question of law. The exercise of the discretion by the Tribunal in the present case does not raise a question of law. Similarly, the power given to the Tribunal by s 56(6) of the FOI Act to allow further time to deal with a request for access to documents involved a discretionary power. Neither that subsection nor s 56(5) of the FOI Act authorises the Tribunal to direct the making of a decision. As the Tribunal said at [31] of its reasons for decision of 4 January 2008: Section 56(5) does not authorise the Tribunal to direct an agency or Minister to make a decision. It permits it only to facilitate the making of a decision should the agency or Minister wish to do so. Such further decisions are not infrequent and assist in narrowing the documents that are truly in issue between the parties. For these reasons, the Tribunal was correct to hold that it did not have power to direct either the Attorney-General or the Minister to make an actual decision on Ms Bienstein's request for access to documents. The Tribunal dealt with the deemed decision to refuse such access, as it was obliged to do. Bias In argument, Ms Bienstein raised the question of bias on the part of the Tribunal. Initially, she said that bias was not advanced as a ground for overturning the Tribunal's decision, but was advanced on the basis that, if the decision were to be overturned on other grounds, the Tribunal should be reconstituted upon the case being remitted to it. In reply, Ms Bienstein said that she wished to raise the question of bias as a separate ground. She made it clear that she was not alleging bias against her. Rather, she was alleging that the Tribunal had either an actual or an apprehended predisposition to protect Ministers from having to comply with requests for access to documents.