FEDERAL COURT OF AUSTRALIA Giddings v Australian Information Commissioner [2017] FCA 677 File number: ACD 100 of 2016 Judge: TRACEY J Date of judgment: 16 June 2017 Catchwords: ADMINISTRATIVE LAW – application for judicial review of a decision of a delegate of the Australian Information Commissioner under s 54W(a)(ii) of the Freedom of Information Act 1982 (Cth) to refuse to continue to review a decision – whether decision-maker took an irrelevant consideration into account PRACTICE AND PROCEDURE – where delegate named personally as the respondent – whether appropriate to instead name the delegator as the respondent – consideration of the effect of s 34AB(1)(c) of the Acts Interpretation Act 1901 (Cth) on the naming of the respondent PRACTICE AND PROCEDURE – applications for closed court, non-publication and suppression orders – whether grounds for making such orders Legislation: Acts Interpretation Act 1901 (Cth) ss 25D, 34AB(1)(c) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Federal Court of Australia Act 1976 (Cth) s 17(4), Pt VAA Freedom of Information Act 1982 (Cth) ss 3, 54N(1), 54W, 54W(a), 54W(a)(i), 54W(a)(ii), 54S, 54T, 55G, 55K, 55K(1), 55K(4), 55K(4)(a), 55K(6), 55K(8) Judiciary Act 1903 (Cth) s 39B Acts Interpretation Act 1931 (Tas) s 23AA(4) Cases cited: Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 Brown v Rezitis (1970) 127 CLR 157 Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179; [1998] FCA 1607 Forest Marsh Pty Ltd v Resource Planning and Development Commission (2007) 16 Tas R 280; [2007] TASSC 50 Johns v Australian Securities Commission (1993) 178 CLR 408 Kerr v Commissioner of Police (1977) 2 NSWLR 721 Koon Wing Lau v Calwell (1949) 80 CLR 533 Littlewoods Mail Order Stores Ltd v Inland Revenue Commissioners [1963] AC 135 Madras Electric Supply Corporation Ltd v Boarland [1955] AC 667 Malubel Pty Ltd v Elder (1997) 98 A Crim R 192; [1997] FCA 1310 McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11 Orfali v Australian Information Commissioner [2016] FCA 1386 O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 39 Owendale Pty Ltd v Anthony (1967) 117 CLR 53 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 Re Reference under Section 11 of the Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163; [2011] HCA 52 Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Date of hearing: 23 May 2017 Registry: Australian Capital Territory Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 37 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Mr L Holcombe of HWL Ebsworth Lawyers ORDERS ACD 100 of 2016 BETWEEN: TOBY KYLE GARETH GIDDINGS Applicant AND: AUSTRALIAN INFORMATION COMMISSIONER Respondent JUDGE: TRACEY J DATE OF ORDER: 16 june 2017 THE COURT ORDERS THAT: 1. The Australian Information Commissioner be named as the respondent to the proceeding in place of Ms Rocelle Ago. 2. The applicant's interlocutory application, filed on 21 March 2017, be refused. 3. The applicant's application be granted in part. 4. The decision of the delegate of the respondent to discontinue the consideration of the applicant's application for review of a decision of the Australian Federal Police be set aside. 5. The applicant's application for review of the decision of the Australian Federal Police be remitted to the respondent to be heard and determined according to law. 6. The application otherwise be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT TRACEY J: 1 The applicant, Mr Toby Giddings, has applied to the Court for judicial review of a decision of a delegate of the respondent Information Commissioner ("the Commissioner") not to continue to undertake a review of a decision of an officer of the Australian Federal Police ("the AFP") not to release the whole or parts of documents sought by Mr Giddings under the Freedom of Information Act 1982 (Cth) ("the FOI Act"). The delegate purportedly acted under s 54W(a)(ii) of the FOI Act. 2 As mentioned, the decision was made by a delegate of the Commissioner. The delegate was originally named personally as the respondent to the proceeding. On the application of the Commissioner, I ordered that the delegate be removed as the respondent and replaced by the Commissioner. Mr Giddings opposed this application. 3 It has been said that, where a decision-maker is exercising delegated power, he or she may validly exercise that power in his or her own name: see Owendale Pty Ltd v Anthony (1967) 117 CLR 539 at 562 (Windeyer J), 598 (Taylor J) and 611 (Owen J); Re Reference under Section 11 of the Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 at 94 (Brennan J). The delegate could, therefore, be an appropriate respondent. 4 However, s 34AB(1)(c) of the Acts Interpretation Act 1901 (Cth) ("the AI Act") provides that, where an Act confers a power on a person to delegate a function to another person, that function, "when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the [delegator]". An evident effect of this provision is to prevent an unsuccessful applicant from making a fresh application to the delegator under the empowering Act. It may also have the effect of altering the principle expressed in Owendale and Re Reference, at least for the purposes of the enabling legislation, by treating a decision of a delegate as being equivalent to that of a person acting pursuant to an authorisation, such that the act is deemed to have be done in the name of the authority: see Re Reference at 94 (Brennan J); Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 at 563 (Lord Greene MR, Goddard and Du Parq LJJ agreeing); O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 12–13 (Gibbs CJ, Murphy J agreeing) and 30 (Wilson J). A similar conclusion as to this effect is apparent from dicta of the Tasmanian Supreme Court, in the context of the analogous section 23AA(4) of the Acts Interpretation Act 1931 (Tas): see Forest Marsh Pty Ltd v Resource Planning and Development Commission (2007) 16 Tas R 280 at 289; [2007] TASSC 50 at [36] (Underwood CJ). 5 In the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), the appropriate respondent to an application for judicial review is, prima facie, the decision-maker under the relevant enactment: see Malubel Pty Ltd v Elder (1997) 98 A Crim R 192 at 199; [1997] FCA 1310 at p 11 (Moore J). As s 34AB(1)(c) of the AI Act deems, for the purposes of the enabling enactment, a decision of a delegate to be a decision of the delegator, that section provides a basis for the naming of the delegator as the respondent in this proceeding: see R Creyke, J McMillan and M Smyth, Control of Government Action: Text, Cases and Commentary (LexisNexis Butterworths, 4th ed, 2015) at p 538. 6 There otherwise appears to be no reason why the delegator (in this case the Commissioner) should not be the respondent: see Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 at [37] (Kenny, Griffiths and Mortimer JJ). In many proceedings before this Court, an office-holder will be named as the respondent even when the decision that is challenged is that of a delegate appointed by him or her: see, eg, Orfali v Australian Information Commissioner [2016] FCA 1386; BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530. 7 In my view, it is better that the statutory office holder be named as the respondent in such circumstances. This renders less personal the litigation: cf Re Reference at 95 (Brennan J). It is also generally consistent with the view that, when naming a party, it is appropriate to refer to a person's office, rather than the name of the person who held that office at the time the decision was made: see Kerr v Commissioner of Police (1977) 2 NSWLR 721 at 724–725 (Moffitt P, Hope and Samuels JJA agreeing); Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 191; [1998] FCA 1607 at pp 16–17 (Branson J); Brown v Rezitis (1970) 127 CLR 157 at 169 (Barwick CJ); Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 529 and 552; [2003] HCA 11 at [31] (McHugh J) and [111] (Kirby J). It also facilitates the easier recognition, from the title of the case, of the general class of case to which the litigation relates. The applicant is in no way disadvantaged by this course being adopted. BACKGROUND FACTS 8 In October 2015, Mr Giddings applied to the AFP for access to various documents. His application was made under the FOI Act. 9 In December 2015, the AFP determined to release seven documents which had been sought and to refuse access in part to 21 other documents. It refused any access to six further documents. 10 In April 2016, Mr Giddings applied to the Commissioner to review the AFP's decision. The Commissioner embarked on a review. In the course of the review, Mr Giddings raised concerns that the AFP had not addressed all parts of his original request. The case officer who was dealing with Mr Giddings' application to the Commissioner referred these concerns to the AFP. 11 In August 2016, the AFP made a revised decision under s 55G of the FOI Act. Mr Giddings continued to be denied access to much of the material to which he had sought access. 12 Thereafter, Mr Giddings made a series of submissions to the Commissioner in which he challenged various aspects of the AFP's reasons for the revised decision. 13 In October 2016, a case officer advised Mr Giddings in writing that the Commissioner would proceed to make a decision on his application. She asked whether Mr Giddings would wish to be de-identified in any decision which the Commissioner might publish, setting out his reasons for his decision. "De-identification" would have involved the use of letters in place of the name of Mr Giddings and, presumably, the names of others with whom he was associated. 14 Mr Giddings responded by expressing a wish to be de-identified but expressed concern that the published decision might contain material which he regarded as confidential or might infringe his rights to privacy. 15 A senior case officer subsequently advised Mr Giddings in writing that any other references which might serve to identify him would also be avoided. That officer indicated that, in a de-identified decision, the Commissioner would quote and summarise the submissions of the parties that were relevant to his decision. The officer also foreshadowed that, if Mr Giddings maintained his wish that the decision not be published, the Commissioner would be likely to decline to continue with his review, relying on s 54W(a)(ii) of the FOI Act. 16 There then followed lengthy written correspondence and telephone conversations between Mr Giddings and officers acting on behalf of the Commissioner. The correspondence contained repeated objections by Mr Giddings to any publication of what he regarded as his personal information and anything that would impinge on his privacy. He cast his net very widely. He claimed, for example, that the contents of all e-mail correspondence between him and the Commissioner's office was personal information which should not be quoted in a published decision. At one point, he indicated that paraphrasing or summarising that material for the purposes of publication would be acceptable to him, so long as it was the original content that was considered by the Commissioner during the making of his decision. Some ambiguity as to this position was created by Mr Giddings' comment in the same correspondence that he had not received any commitment that the Commissioner would not "quote or include substantial personal information that is confidential from [his] emails" (emphasis added). 17 In November 2016, a delegate of the Minister made the impugned decision. She recounted the history of the processing of Mr Giddings' application which I have summarised. She then provided her reasons for terminating the review. She said that: [u]nder paragraph 54W(a)(ii) of the FOI Act, the Information Commissioner may decide not to undertake a review, or not to continue to undertake a review, where the review applicant has failed to cooperate in progressing the IC review application. Based on the information above, the OAIC [Office of the Australian Information Commissioner] has been unable to progress your IC [Information Commissioner] review application further. As a delegate of the Information Commissioner, I have decided not to continue to undertake a review of your application under s 54W(a)(ii). I confirm that this IC review is now closed. Your review rights are set out below. THE APPLICATION FOR JUDICIAL REVIEW 18 Mr Giddings applied for judicial review of the delegate's decision on a number of grounds. Some of them were scandalous and included an allegation of what he described as "malfeasance" in public office. There were, however, other grounds which, making due allowance for Mr Giddings being a self-represented litigant, were potentially sustainable. He noted that s 54W(a)(ii) of the FOI Act "legally requires non-cooperation and 'without good reason'". He contended that he "was both cooperating and did have two separate and good reasons for [his] objections [to the publication of reasons], irregardless [sic] of the consideration of the 'cooperation'". He asserted that his claims relating to the contents of any published reasons had been supported by arguments "that were both clear and reasonable", that he had provided information about his objections at the express request of officers, and that the delegate had then used his objections to support the decision to cease processing his review. 19 It is convenient to interpolate at this point that the same concerns which led to Mr Giddings' objection to the publication of reasons for any decision to which the Commissioner might come also founded an interlocutory application in the present proceeding in which he sought orders that the Court be closed during the hearing and that suppression and non-publication orders be made in relation to numerous documents which were in evidence. I refused this application. I was not satisfied that the hearing of the application in open Court would be contrary to the interests of justice: see s 17(4) of the Federal Court of Australia Act 1976 (Cth). Nor was I satisfied that any of the grounds for the making of suppression or non-publication orders under Part VAA of that Act had been established. THE LEGISLATION 20 Part VII of the FOI Act provides for reviews by the Commissioner of decisions by Commonwealth agencies to refuse or grant access to documents or parts of documents which have been sought under the FOI Act. Applications for review must be made in writing: see s 54N(1). The applications are to be made within prescribed time limits: ss 54S and 54T. 21 The FOI Act provides that the Commissioner may choose not to undertake a review or to discontinue a review once commenced. These powers are to be found in s 54W, which relevantly provides as follows: Decision to review — discretion not to review The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if: (a) the Information Commissioner is satisfied of any of the following: (i) the IC review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith; (ii) the IC review applicant has failed to cooperate in progressing the IC review application, or the IC review, without reasonable excuse; (iii) the Information Commissioner cannot contact the IC review applicant after making reasonable attempts; or (b) … (c) … 22 Section 55K deals with what the Commissioner is to do following the conduct of a review. It provides as follows: Decision on IC review — decision of Information Commissioner (1) After undertaking an IC review, the Information Commissioner must make a decision in writing: (a) affirming the IC reviewable decision; or (b) varying the IC reviewable decision; or (c) setting aside the IC reviewable decision and making a decision in substitution for that decision. (2) For the purposes of implementing a decision on an IC review, the Information Commissioner may perform the functions, and exercise the powers, of the person who made the IC reviewable decision. (3) A decision of the Information Commissioner on an IC review has the same effect as a decision of the agency or Minister who made the IC reviewable decision. Content of the decision (4) A decision on an IC review must include the following: (a) a statement of reasons for the decision; (b) a statement of the rights of the review parties to apply to the Tribunal for review of the decision under section 57A. (5) However, a decision on an IC review must not include: (a) information of the kind referred to in subsection 25(1); or (b) exempt matter. Note: Subsection 25(1) deals with information about the existence or otherwise of certain documents. Providing copy of decision (6) The Information Commissioner must give a copy of a decision on an IC review to each review party. Copy of decision prima facie evidence (7) A document is prima facie evidence of a decision on an IC review if: (a) the document purports to be a copy of the decision; and (b) the document purports to be certified by, or on behalf of, the Information Commissioner to be a true copy of the decision. Publication requirement (8) The Information Commissioner must publish a decision on an IC review to members of the public generally. CONSIDERATION 23 At the time that the delegate made her decision to discontinue the processing of Mr Giddings' application, all the submissions and other material needed for the making of a decision by the Commissioner had been made and assembled. The only perceived obstacle to the Commissioner making a decision and publishing it were the objections, made by Mr Giddings, to the publication of the decision and, specifically, to the potential content of any published reasons for the decision. 24 Mr Giddings asserted that the Commissioner did not have to publish his decision to anyone other than him and the AFP. This contention was founded on a misconstruction of s 55K(8). Mr Giddings argued that the word "generally" meant that exceptions could be made to the requirement of publication to the public. 25 The word "generally" appears as part of a composite phrase: "to members of the public generally", which identifies a group of people to whom the Commissioner's decisions are to be made available. That group may be described as "the general public". Such a construction is consistent with the educative purposes of the Act, which are intended to promote scrutiny of the Government's activities: see s 3 of the FOI Act. Had the draftsperson intended to qualify the obligations imposed on the Commissioner by s 55K(8), in the manner suggested by Mr Giddings, the word "generally" would have had to have been positioned between "must" and "publish" and, even then, may not have carried the asserted meaning. 26 Mr Giddings also submitted that, as there is no express timeframe within which decisions must be published under s 55K(8), that subsection "allows for extended delay and even suspension … [which] is not the same as non-publication". The Commissioner argued that, as that subsection imposed an obligation, it was necessary for him to comply with the requirement within a reasonable period of time. The Commissioner's submission should be accepted. The absence of a stipulated timeframe in the context of a statutory obligation has been held to require, by implication, compliance within a period of time that is reasonable in the particular circumstances, including the legislative context: see, eg, Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573–574 (Dixon J); Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 at 578 (Murphy J); Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 at [37] (Crennan, Bell, Gageler and Keane JJ); Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163 at 174; [2011] HCA 52 at [28] (French CJ, Gummow, Hayne and Bell JJ). The Commissioner is unable to postpone indefinitely the publication of the decision. 27 Mr Giddings also submitted that no detailed reasons for any decision which the Commissioner might make were required. This submission ignores s 25D of the AI Act, which provides that, where a statute requires the provision of written reasons for decision (as s 55K(4)(a) does in the present case), the decision-maker "shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based". This requires a decision-maker to explain the "actual path of reasoning" by which he or she arrived at the relevant decision. The explanation must be provided in sufficient detail to enable a reviewing Court to see whether the ultimate conclusion is or is not affected by any error of law: cf Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 501; [2013] HCA 43 at [55] (French CJ, Crennan, Bell, Gageler and Keane JJ). 28 Mr Giddings also relied on the fact that a 55K(8) refers to "a decision", rather than "the decision", and said that this meant the form of the published decision was "flexible". It follows from this argument that the form of decision provided to the parties under s 55K(6) could be different from that published under s 55K(8). The term "a decision" is used throughout s 55K: it appears in subsection (1), which requires the Commissioner to make "a decision", and in subsection (4)(a), which provides that "a decision" must include a statement of reasons. A presumption arises that the term in subsections (1) and (4) bears the same meaning as it does in subsections (6) and (8), as well as in other subsections of s 55K. Such a presumption will always "yield to the requirements of the context" in which a term is used, even where it is used more than once in the same section: cf McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633, 643 (Gibbs J), citing Madras Electric Supply Corporation Ltd v Boarland [1955] AC 667 at 685 (Lord MacDermott) and Littlewoods Mail Order Stores Ltd v Inland Revenue Commissioners [1963] AC 135 at 159 (Lord Reid). There is nothing in s 55K, or elsewhere in the FOI Act, which would displace the operation of the presumption when s 55K(8) is being construed. 29 As the Commissioner has yet to make a decision, it is not possible, at this stage, to anticipate what reasons might be forthcoming for the decision and whether those reasons might contain material which Mr Giddings would prefer not to be published. 30 This brings me to the delegate's impugned decision. Her reasons do not explain how Mr Giddings' objections to what might or might not appear in the Commissioner's reasons prevented him from progressing Mr Giddings' review application any further. All the material necessary for the making of a decision had been assembled. There was no legal reason why the Commissioner could not have proceeded to make a decision. Mr Giddings had no right of veto over what might or might not appear in the published reasons for any ultimate decision. 31 It is also difficult to comprehend how the delegate could have considered that s 54W(a)(ii) was engaged. This provision allows the Commissioner to discontinue an investigation if the applicant "has failed to cooperate in progressing the … review application, or the [Information Commissioner] review, without reasonable excuse". The raising, by Mr Giddings, of objections to the contents of reasons which had yet to be provided or published constituted no impediment to the processing of his application or to the progression of the review. As already noted, there was no legal obstacle to the Commissioner proceeding to make his decision. 32 Counsel for the Commissioner sought to justify the impugned decision by reference to s 54W(a)(i) on the ground that the application was frivolous and vexatious. It may be accepted that a decision can be supported by a ground which has not been relied on by the decision-maker: see Johns v Australian Securities Commission (1993) 178 CLR 408 at 426 (Brennan J), 435 (Dawson J, agreeing generally), 458 (Gaudron J, agreeing), and at 454 (Toohey J) and 469 (McHugh J)); see also Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 at [34] (French CJ, Hayne, Kiefel and Bell JJ). However, there is nothing to suggest that the application for review, made by Mr Giddings, was either frivolous or vexatious. The Commissioner had not so regarded the application and had processed it up to the point where a decision could be made without suggesting that the application suffered from either of these defects. The objections which Mr Giddings raised, which founded the decision under s 54W, did not relate to the application itself or the grounds on which it was made. Mr Giddings was, therefore, correct to assert that the delegate had impermissibly used his objections to the anticipated publication of reasons after the decision had been made as a reason for ceasing to process the application prior to the making of that decision. DISPOSITION 33 Mr Giddings did not specifically opt to seek judicial review under either or both of s 39B of the Judiciary Act 1903 (Cth) or under s 5 of the ADJR Act. He did, however, make his application on the form prescribed for use in ADJR Act applications. He would have been entitled to succeed under either or both of these provisions. 34 The delegate's decision was not authorised by s 54W(a) of the FOI Act or any other provision of that Act. It was based on an irrelevant consideration, namely Mr Giddings' concerns as to the potential content of any published decision. 35 In his application, Mr Giddings sought a "reversal of the decision" and the punishment of the public servants who were involved in making it. He also sought damages of $5,000 for what he said was "the unnecessary stress and time" that he had endured because of the "severe abuse of the law" that he said occurred because officers had "avoid[ed] [his] concerns and legal argument put to them before the decision". 36 Mr Giddings has failed to establish any misconduct on the part of any of the officers who dealt with his application. It is clear from the correspondence that passed between them that the officers were striving to assist Mr Giddings, even if he did not appreciate this. The fact that the delegate made a legal error does not justify Mr Giddings' claim that she (or any of the other officers) had been guilty of malfeasance in dealing with his application. There is no occasion for the making of the orders which he seeks other than that which would effect a reversal of the delegate's decision. 37 The appropriate orders are that the application be allowed and the delegate's decision be set aside. The matter should be remitted to the Commissioner with a view to him completing his review of Mr Giddings application for review of the AFP's decision and proceeding to make a decision. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 16 June 2017