Warren v Chief Executive Officer, Services Australia [2024] FCAFC 73

Federal Court of Australia

Warren v Chief Executive Officer, Services Australia [2024] FCAFC 73 Appeal from: Services Australia v Warren [2022] AATA 4191

File number: VID 763 of 2022

Judgment of: KATZMANN, MCELWAINE AND KENNETT JJ

Date of judgment: 7 June 2024

Catchwords: ADMINISTRATIVE LAW – Appeal from a decision of a Deputy President of the Administrative Appeals Tribunal – where applicant seeks access to ten documents pursuant to the Freedom of Information Act 1982 (Cth) (FOI Act) relating to the Pay As You Go (PAYG) data matching initiative, also known as Robodebt – where access to documents refused in reliance on the Cabinet documents exemption at s 34, alternatively s 47C of the FOI Act – whether applicant was denied procedural fairness by reason of the Tribunal failing to engage with substantial issues raised by the parties – where respondent's case varied during closing address without fair notice to the applicant and without affording a reasonable opportunity to respond – whether those matters caused practical injustice in the circumstances – construction of the Cabinet document exemption at s 34(3) of the FOI Act – meaning of "contains information the disclosure of which would reveal a Cabinet deliberation or decision" and "unless the existence of the deliberation or decision has been officially disclosed" – appeal allowed and matter remitted for rehearing

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 39, 43 Freedom of Information Act 1982 (Cth) ss 3, 11, 34, 47C, 61, 63

Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 Boensch v Pascoe [2019] HCA 49; 268 CLR 593 BVD 17 v Minister for immigration and Border Protection [2018] FCA 114; 261 FCR 35 BVD 17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 Carrascalao v Minister for Immigration and Border protection [2017] FCAFC 107; 252 FCR 352 Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 456; 98 FCR 31 Commonwealth v Northern Land Council (1993) 176 CLR 604 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Fisse v Secretary, Department of the Treasury [2008] FCAFC 185; 172 FCR 513 Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Montenegro v Secretary, Department of Education [2020] FCAFC 210; 281 FCR 346 Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 National Disability Insurance Agency v KKTB, by her Litigation Representative CVY22 [2022] FCAFC 181 News Corp LTD v National Companies and Securities Commission (1984) 5 FCR 88 Plaintiff M1/2021v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50: 258 CLR 173 Re Minister for immigration and Indigenous Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301 Secretary to the Department of infrastructure v Asher [2007] VSCA 17; 19 VR 17 Secretary, Department of Prime Minister and Cabinet v Sanderson [2015] AATA 361 Services Australia v Warren [2022] AATA 4191 SZGUR v Minister for Immigration and Citizenship [2010] FCA171; 114 ALD 112 Tucker v Minister for Immigration and Citizenship [2011] FCAFC 16 Warren v Chief Executive Officer, Services Australia [2023] FCA 1337 Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2010 (Cth) Report on the Freedom of Information Bill 1978, Senate Standing Committee on Constitutional and Legal Affairs, 6 November 1979 Revised Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2010 (Cth) Second Reading Speech, Freedom of Information Bill 1978