Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
EMJ18 v Secretary, Department of Home Affairs [2024] FCAFC 87 Appeal from: VKJY v Secretary, Department of Home Affairs [2023] AATA 2551
File number(s): NSD 1096 of 2023
Judgment of: PERRY, SARAH C DERRINGTON, HORAN JJ
Date of judgment: 28 June 2024
Catchwords: ADMINISTRATIVE LAW – freedom of information – appeal from Administrative Appeals Tribunal – where Australian Information Commissioner decided not to review decision of Department but referred review directly to Tribunal by s 57A(1)(b) of the Freedom of Information Act 1982 (Cth) (FOI Act) – whether Tribunal correct to hold it did not have power under s 66(1) of the FOI Act to make a recommendation to the responsible Minister to pay the costs of applicant before Tribunal STATUTORY INTERPRETATION – s 66(1) of the FOI Act – where Information Commissioner decided under s 54W(b) of the FOI Act not to undertake an IC review – where Tribunal held it did not have power under s 66(1) of the FOI Act to make a recommendation to responsible Minister to pay costs of appellant before Tribunal – whether properly construed "a review of a decision of the Information Commissioner on an IC review" includes a decision of the Information Commissioner under s 54W(b) of the FOI Act not to undertake an IC review – whether context and purpose compel insertion of words in s 66(1) of the FOI Act to include a decision not to undertake an IC review to fill apparent legislative gap
Legislation: Acts Interpretation Act 1901 (Cth) s 15AA Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Australian Information Commissioner Act 2010 (Cth) Carriage of Goods by Sea Act 1991 (Cth) s 11(2) Federal Court of Australia Act 1976 (Cth) s 43 Freedom of Information Act 1982 (Cth) ss 3, 4, 11, 11A, 11C, 15(1), 24A, 42(1), 47E(c), 53A, 54, 54G, 54J, 54K, 54L, 54W, 55F, 55K, 55N, 55Q, 56, 57A, 66 Freedom of Information Act 1982 (Cth) (as at 1 March 2010) ss 54, 55, 57, 66 Freedom of Information Act 1982 (Cth) (repealed) 52B, 52F Freedom of Information Amendment Act 1983 (Cth) Freedom of Information Amendment (Reform) Act 2010 (Cth) Interpretation Act 1987 (NSW) s 33 Penalties and Sentences Act 1985 (Vic) s 77 Freedom of Information Amendment (Reform) Bill 2009 (Cth) Sch 4, Pt 1, items 45, 46
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