FEDERAL COURT OF AUSTRALIA Gersten v Australian Federal Police [2001] FCA 159 ADMINISTRATIVE LAW – Freedom of Information – whether documents created or tendered for an illegal or improper purpose can be exempt documents under Freedom of Information Act 1982 (Cth) – significance of finding that documents were not created or tendered for that purpose. Freedom of Information Act 1982 (Cth), s 33(1)(b). JOSEPH MORRIS GERSTEN v AUSTRALIAN FEDERAL POLICE N 997 of 2000 LEE, CARR AND SACKVILLE JJ SYDNEY 15 FEBRUARY 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 997 OF 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JOSEPH MORRIS GERSTEN APPELLANT AND: AUSTRALIAN FEDERAL POLICE RESPONDENT JUDGES: LEE, CARR AND SACKVILLE JJ DATE OF ORDER: 15 FEBRUARY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 997 OF 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JOSEPH MORRIS GERSTEN APPELLANT AND: AUSTRALIAN FEDERAL POLICE RESPONDENT JUDGES: LEE, CARR AND SACKVILLE JJ DATE: 15 FEBRUARY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT LEE J 1 Sackville J will deliver the reasons of the Court. SACKVILLE J 2 This is an appeal from a decision of a Judge of the Court, given on 22 August 2000: Gersten v Minister for Immigration & Multicultural Affairs [2000] FCA 1221. His Honour dismissed two "appeals" on questions of law from decisions of the Administrative Appeals Tribunal ("AAT"). The appeals were brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). 3 The first of the appeals dealt with by his Honour concerned a challenge to the AAT's decision that certain documents in the custody of the Department of Immigration and Multicultural Affairs were exempt documents under the Freedom of Information Act 1982 (Cth) ("FOI Act"). No issue arises on the present appeal in relation to his Honour's dismissal of the challenge to the AAT's conclusion that the documents were exempt. 4 The present appeal is concerned only with the second of the appeals disposed of by his Honour. The background is as follows. 5 On 9 March 1998, the appellant applied to the Australian Federal Police ("AFP") under the FOI Act for access to certain documents in the AFP's custody. Access was granted to some of the requested documents, but the AFP claimed that others were exempt under the provisions of the FOI Act. 6 In August 1999, the appellant applied to the AAT for review of the AFP's decision. In November 1999, the AAT upheld the AFP's claims that the documents sought by the appellant were exempt from disclosure under s 33(1)(b) of the FOI Act. Section 33(1)(b) provides that: "(1) A document is an exempt document if disclosure of the document under this Act: … (b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth." 7 As I have noted, the primary Judge dismissed the appeal under s 44 of the AAT Act. 8 On 12 September 2000, a notice of appeal from his Honour's decision was filed in the Court. However, on the hearing of the appeal, Mr Zipser, who appeared for the appellant, stated that the only ground of appeal specified in that notice was no longer pressed. Instead, he sought, and was granted, leave to amend the notice of appeal. The sole ground of appeal is now that his Honour erred in rejecting submissions in relation to what has been described as the "purported documents". 9 In support of this ground, Mr Zipser simply re-stated the submission that had been put in the first instance to the AAT. In substance, that submission was that a "purported document" could not be an exempt document under the provisions of s 33(1) of the FOI Act. By "purported document", Mr Zipser apparently meant a document that had been created or tendered to the Government for "an illegal, fraudulent or improper purpose". It was said that such a document was not intended to be within the scope of s 33(1). 10 As Dr Renwick, who appeared for the respondent, pointed out there is a short answer to this contention. The AAT found that there was no evidence that would provide the necessary basis for this submission. That is to say, the AAT found that there was no evidence that the relevant documents had been created or tendered to the Government for an illegal, fraudulent or improper purpose. 11 It is fair to say that the appellant did not attempt to challenge the AAT's finding of fact. Since the finding has not been challenged, and indeed cannot be challenged, the basis for the so-called "purported document" submission is wanting. In short, the AAT has made a finding of fact that is fatal to the appellant's contention in this Court. 12 For this reason, in my view, the appeal must be dismissed, with costs. LEE J 13 I agree. CARR J 14 I also agree. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices LEE, CARR AND SACKVILLE. Associate: Dated: 7 March 2001 Counsel for the Appellant: Mr B Zipser Solicitor for the Appellant: Chris Peacock & Co Counsel for the Respondent: Dr J Renwick Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 February 2001 Date of Judgment: 15 February 2001