Alo4 TSTCHWORDS Freedom of Information - Refusal of access on Geuund Enat documents exémpt documents - Coenclusite certificare that documents exempt - Review by Administrative Appeals Tribunal - Decision that reasonable grounds that the documents were exempt did not exist - Appeal to Federal Ccurt of Australia on question or law - "bligvarcion of Minister to implenent decision of Trisunal - Ne power to extend time for implementation of decision - Stay of a implementarion ot decision of Tribunal granced. Ereedom_of Information Act 1982, sa. il, 334, 26, S32 Administrative Appeals Tribunal Act 1975. aub-s. t4Atl) MINISTER OF STATE FOR ELUCATION AND YOUTH ArFAIES v. WARWICK BRACKEN No. ACT G 343 of 1984 CORAM: Neaves J. 21 December 1984. Canberra . ' q oy ve a ET TR Be ae ~-~-s + ENERAL DIS 290N ON APPEAL FROM THE ADMINISTRATIVE APSEALS TRISUNAL BETWEEN: MINISTER OF STATE FOR ERUCATION AND YOUTH AFTATES Applicant AND: WARWIC RACK Respondent GOPDER JUDGE MAKING ORDER =: Neaves J. DATE _OF ORDER : 5 December 1984 WHERE MADE : Canberra THE €O R 1. Pursuant to sub-section 44A(2) of the Administrative Appeals Tribunal Act i975, the implementation of that part of the decision of the Administrative Asoeals Tribunal given on 7 November 1984 in matter No. A84/25 in which Warwick Bracken was the applicant and the Minister FEDER, ar > w reseendeant «naresy 1.5 wag tatermined that tnere do faragrarh id of che Tribunal s FReastns for Decision are axempc documents under section 774 of the fFreed-n of Infcrmatior Ach 1992 and 1.7 waz gacommended tnat consideration be given te the release of those documents subject to appropr:ate deletions pursuant to section 22 of that Act be stayed perding tne hearing and determination of the appeal to this Court instituted by the Minister of Srate for Education and Youth Affairs by notice of appeal dated 4 Lecember 1984 or until further ord oJ "y The costs of this application be costs in the appeal. IN THE FEDERAL COUKDE GF ATISTPALTA ' AUSTRALIAN CAPITAL TERK:VORY ' ' Na. ACT G +43 er vISTRICL REGISTRY ' GENERAL DIVIS LCN , UN APPEAL PROM THE ADMINISTRATIVE APFLALS TRIBUNAT, PRWEEN : MINI Sy eDucas rr T AND: WARLICh BRACE EN bee por dent CORAM: Neaves J, DATE: 2. December 1984 nPASONS bop SUTGMEIT Im & Beeember 119A on the arpdbecatien of tne Minister of State for beacatiucn and Joutt sttal.s ("Lhe applicanr"> L made an order pursuant Fo sub-section 44A02) of the Administrative Apoeals Tritunal Act 1975 that the implementation .f£ that part of obhe decison of the Administrative Appeals Trivunal ("Lhe Trerbeanal") aiven oun 7? Norember 1994 1n matcer No. Ag4,°5 in which Aarwick bracken '* the respondent"* was the applicant amd the Minister at State for Fducaticn ani Yeuth Affairs was fhe réspondent wnereby it o.as determined that there did rob exist reasonable grounds fer the claim thet toe whe of documents cs, 2? and + reterved to in warayrarh if of fhe frinunar's Reason. for Decision were exempt aocuments umler sercion 33A of the Freedom _of Information Act 1982 and it Wa 2 recommended that consideration he given bo the re.ease of Enose daluments subtecr no appr priate deletrons pursuant to u ib ee ra on 72 or that Act be staved penctinys tue hearirms and determination of the appeal to this Court instituted Fy the Minister of State tir Ealucation and Yeuth attains by nutice of appeal diated ¢ Decemner 1.964 G2 unrail £.ether or dar. 1 also « ruered trat the costs of th rm nf ARP l]ivatiom be cents an thy vw a we e app ther said that [oo would vive cu, reasons for making those orders as soon as pussiple Wnat Follows are those reasons. Sub-section 44(1) of the Adminiotrative Avpeals Tribunal Act 1975 provides that a party toa opr oreading before the Tribunal may appeal tv this Court, cn ao quesrran of law, from anv agecision of the Terthunal on tnat proceeding. Pursuant to that wrovisignm the aprolicanr appealed ©o frais (curr From that part of {re deeper or the Tribunal giver and notified on 7 Nevembhers 1364 nl. wnicr reference Las alteaay been made ne Preeagom oof information Act i632 Feevid section ii that. subiect te the Act, every verson has a leqally entureeable rirunt to obtain access in aceirdance wile exemer peeroon 234 writh, 2%. qocument of an ats ather than =n Barlik wo tume nt aeerent AY s mo oof PAPh an the ebevie lens eo Fab ah Warebtane, BEY a exempr de. ment 10 dia) lesure vl could res-onubly be u velaricns berween the Commacnveaith and 3 (2) of thar sectieh praviies tnat where tisrread that 4 aocument is 4 exempt aA tezason reterreud fo in sub-se tion the effect oo. eteeifyiny EY ua Minister may 219M ¢ Part Vi of the that reason) ard, subject ta the speratran oF Act, such a certiri ate, 3c lon. ay 2th remains wn force, astablist.2s cone Lueively thar cone ociimen™ 13 am PyeEMert document referees Lo in sup see 7400 (yy, Fart VI ot the Act contains Lrvv1s1ons ror the r-7tew yr oder as bos wade mer rhe At. Tre decor OF Lhe dpita al Way ylvet upon an of a derision application bY the respondent refusing ~% arant acess Lo ne document» accordance with a4 request made under the Act 'see sub-section 55(1)). Access ta the ducuments had been refused on the £2815 thar the Nocuments were exempt and tnere was itt documents by virtue of existerce in respect of those dotuments a cerhiricate $1 ynel Ly the appiacant under sub-sectice (2' cf thak sectain By varttue of sectiun 38 et the Ack the powers 1 the Tribunal did not extend feu reviewing Che Geci-1en te give the cietificats under secticn 33 thivever, t ran rai ng Tripunal was entitled, af the vesrondent so recnestai, to determine tne question whether tnere existed teas inable grounds for the claim that the documents referred tao in the certificate were exempt documents. The question of law which the applicant desires te have determined by tnis Court on the hearing of the apeeal 15 whether 1f Was open to tne Ttibunat, having flumed chat pach of the documents conkaiiwed exemir matter, toa determine that tere did omot exist reasonable orriinds far the claim thar the document» were exempk ao cuments ander seetiun F3A. Or 4 December 1984 the aprelicant filed notice thar the Courr wouid be moved on 5 Decemnér 15984 for an order staying thaf part of the decision from which the asplicant had appealed to this Court. An order was made in Chambers unner Order 19, ©£.3 of the Federai Court Rules directary that the time rerore which nvrice at motion was to be serven on the resrorcent be abridged to cpm con 4+ December 198) When the matter came nerore the Coure on © December J 1984 the applicant was rerresented by Mey bonseyvyoor che Australjan Government boliecitor's vffice, The beupondent appeared in person. leave Was granted to Ehe arpplicanr oro bLile an amendéd naniee of mahicn in whitn the oOrdecs sotyhe were an rder that the pacer of the diecteron of tne Trai ars Lhe vubject cf the appear to this '-suet "Le stayed from the time immediately after Ethat decision] wis male and bera:e it was communicated to the Minister of State for Education and Youtn Affairs" and such other order as the Court wlrant think fit. The Ceurt was informed that on 7? Nevemper Lik4t application was made to the Tribunal t. vaty that fabrt out res decision which l5 the subtect cf the appeal cc thas Court, tne Tribunal being urved f6 do $9 Levance rts finding tnat the decumentsS in question contained ezempt matter was said to be aineonsisfent with ate Pirviity that reasonable grounds aid not exist for the claim thac the documents are exempt documents wnrder section 738. Tn consequence, tb was ¢aid that the decision made by the Tribunal vas one falling outside 1h. cine Belure the hearing comeluded the Court was informed that the Tribunal nad given its decision on that application, dec.ininug tv vary 1ts Garlier decision. The reason fur the making of the appeivalron for a stay order is to be Found in section bRA rf rhe Freedom oot Information Aet 152 oy virtue of sub-seeri oi il) of chat section, where as in this case the Triounal has determined that there do nol exist reascnabie grounds tor toe eclarm that a document 15 an exempt document umiler section 333A being a douwument ur respect of which a certificate 15 1n torce under fhat se-tion, the applicant av the appropriate Minister 15 obliged, not later than 28 days after the determination of the Tribunai 22 communicated to such Minister, f° mace a decision erther lo revoke oof mot tu revoke the certificate fertalnm Lomvequences rollow detending urcn Vrich dec1siscn 1s made. tnoa tabe such as thio where the certificate was diven under sub-section 33A(2), the consequence of a decision that the certificate he revoked 15 to withdraw the claim that the document 2s) an exempt document, while tne consequence of a decision mut to revoke the certificate 15 that the Minister 1¢ abliued to cause notice in writing of the decision to pe furricned to the person who requested the document and to cause a copy of Lie mofice to be laid before each House of the Parliamert within © sitting days of that douse after the mutice Ls se furnished On tne basis that the decision vf the Tribunal Was Conmuntvated to the Minister on 7 Voevember Llyed the period of 28 davs referted to in sub 6s tion SHALL) saan Lo exolre on 3 Uecemper 1584. Tne applicant relied, in support of the atpiictarziocn for wnterlocutory relief rendind the hearings and determination of the appeal to this Court, aon stihb-oeetion 44Ac 2) of the Adminzetrative Apreals Tribunal Ach 2u7' or alternatively on section 28 oot the Austrai fub-sectiron 44A(2) of the Administrative Arpeals Tribunal Act 1975 provides "{2) Where an appeal 1s instituted in tne Federal Court of Australia Lrom A& decision of the Tribunal, that Court or « Judge of that Court way make sucn order or orders staving or ctherwise etfecring the operation of oimplementation of either or both of the tullowiny: ta) the decision of the Tribunal ur ao part of that decision; and (b>) the decision to which the proceeding before the Trtbunal related of a part of that decisicn, as that Court of Judye considers aprrovelate for the purpcse of securing tne efrectiveness of the heart? and determination of the appeal.' Sention 23 of the Federal Court ocr Australia Act 1976 erovides - ""l3. The Court has power, an celation to matrers lu Which 1t has jurisdiction, to make orders of such kinds, inelidinug dinekberlocutory orders, and to 19sue, or direct the issue of, writs of such kinds, as the Court thinks appropriate " it was submitted that the applicant was by reason of the events which had occurred placed in a dilemma. Tt 8B. was sald that, 1f that part ot the decision 31 the Tribunal Lhe subject of the apoval to tnis Court wa» a decision that 1t was not open to tne Tribunal to mare, tne period of 26 davs referred to in Sub-sectiid SHA(1) of tne Eréeedom Information Act 1952 had net commencea to run as mo valid determination of the Ttabunal had heen communicated to the applicant. On the other hand, af the decision crt the Tribunal was one open to it, the period of 25 day reterred fo in that sub-section was to expire on the day the matter was before the Court, 5 Decenber 1984. The applicant, aut was submitted, should not re flaced ain the position of having to act ain accordance with section TRA «until the appeal to this Court had been determined Lo owas sati:ried tnat there was a substantial dquestion te re arqued om the nearing of the appeal ta & ils " Court and that the balance cL corvenirence raygulread that the status quo be preserved pending Lae hearing and determination of that appeal. The respondert maae no submission to the contrary and I formed the view that T should make an appropriate order 1f such could be tramed and the Court nad power to make it. The most effective means cf preserving rhe status quo vending the determination or the appeal would Lave heen ar oe¢der extending tne period of 28 aave referred te an sub-section SHAC1) of the Freedom of Informati The statute, however, provides no machinery hy which that time miant be extended and, in my view, meither sub-secticn 44A(Z) of the Administrative Appeals Prirtmal Act 197" nor section 23 of tne Federal oart of Australia Ac! 1976 provides authority tor the Court to make stich an atder. The absence of such a power ino circumstances sich as those disclosed by the presenr case 15 &@ matter to which the legislature may need to give attention. To stay the operation -f the relevant part Jf the decision of the Tribunal pursuant to sub-section 44A(%7) or section 23 of the statutes referred to appeared tc me not ta to be an etfeutive order for the Court to male. The decision of the Tribunal amounted to no mire than a declaration as tz tne absence 3of reasonarle grounds fur the claim tnat the decuments were exempt documents. Trat decision had already peen communtlated to tne Minister. The decision did not itself nave further operative efleer and there was nothing upon which such a stay would operate Likewise, there seemed to be mo basis uper which the order sought ain the amended nntice of motion sould be made. If the decision of the Tribunal was one within 1ts power, 1t had already been communicated to the appricant and no order of the Court could alter that fact iu seemed to me, Lowever, that, as tie 'Tribunal's 10, v elsivn remained to be implemented, albeln im the marnée prescribed ny section S6A of tne Dreedim ol turerszarina Alt 1982, 1 was Open fo the Court under sub-section 414+ _) of the Administrative Aspeais Tribunal fern lo%s to make an order staying until the determination cr the appeal or further order the implementation of the Tribunal s dewisio)n,. In reaching that conclusion and tne further conclusion that 1t was appropriate in the ci1rcumstances of the casé ta mace tnat order [ formei no canwbuded view on the questicim a2 ro what, if any, effect that order might nave unc the applicant's cpligations under section FAA of tne Freedom. of Informatlun Act 14h, When makina the + tnder on 5 Decemoer L9%4 To expressiy stared that [ was expressing mo view on that question. Tocertify that tri the preceding v page a true cory -£ the Rk for JTudament here. Honourar le Mr Wa Neavec. Pated: 71 December i944