Appeal Panel - Internal CITATION: McGuirk v University of New South Wales [2007] NSWADTAP 64 APPELLANT PARTIES: Gerard Michael McGuirk RESPONDENT University of New South Wales FILE NUMBER: 069056 HEARING DATES: 1 May 2007 SUBMISSIONS CLOSED: 14 September 2007 DATE OF DECISION: 7 November 2007 BEFORE: Hennessy N - Magistrate (Deputy President); Fitzgerald K - Judicial Member; Mooney L - Non Judicial Member CATCHWORDS: Jurisdiction - Freedom of Information - Appeal MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 053171 DATE OF DECISION UNDER APPEAL: 09/01/2006 Administrative Appeals Tribunal Act 1975 (Cth) LEGISLATION CITED : Administrative Decisions (Judicial Review) Act 1977 (Cth) Administrative Decisions Tribunal Act 1997 Protected Disclosures Act 1994 Commonwealth Bank Officers Superannuation Corp Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427 CASES CITED: Bennett v University of New England (unreported, NSW Dist Ct, Dunford J, 7 August 1991) Federal Commissioner of Taxation v Elton (1990) 20 ATR 1796 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 In Person REPRESENTATION: P Singleton, counsel ORDERS: 1. The Tribunal's orders are set aside; 2. The matter is remitted to the Tribunal to review the deemed decision to refuse access to the requested documents. REASONS FOR DECISION Introduction 1 On 8 March 2005 Mr McGuirk applied to the University of New South Wales for certain documents under the Freedom of Information Act 1989 (FOI Act). The material he requested was correspondence between the University and the Crown Solicitor's Office, or barristers briefed by that office. The correspondence related to a private prosecution that Mr McGuirk brought against five employees, or former employees, of the University for alleged breaches of the Protected Disclosures Act 1994. Mr McGuirk requested the correspondence relating to the legal costs associated with the defence of that prosecution. 2 On 22 March 2005, the University asked Mr McGuirk to pay an advance deposit of $660 in order to cover the costs of dealing with the application: FOI Act, s 21(1). It said that the reason for requesting that deposit was the high number of applications for access that Mr McGuirk had made since 2003 and the work and expense involved in dealing with those applications. Mr Milne, executive officer to the Vice Chancellor, estimated that in the last year Mr McGuirk had generated approximately 70% of the work which the University did pursuant to the FOI Act. In response, Mr McGuirk said that University had requested the advance deposit for an improper purpose, that is, to frustrate the objects of the FOI Act and to deny him his legally enforceable right to be given access to documents held by the University. He also said that the University's improper motive made the decision ultra vires and that levying the deposit was against Government policy. 3 Mr McGuirk did not pay the advance deposit within the time specified by the University. On 6 April the University decided to refuse to continue to deal with the application: FOI Act, s 22(3). On 11 April Mr McGuirk applied for an internal review of that decision and the University received that application in mid-April. (The precise date is not recorded.) The internal review was not completed within the 14 day period allowed by s 34(6). Consequently the University was deemed to have made a determination under s 24 in late April refusing access to the documents. 4 On 5 May 2005, after the 14 day period had expired, the University wrote to McGuirk saying that it would refuse to continue to deal with his application unless an advance deposit of $660 was received by 10 May. Mr McGuirk did not pay and on 11 May 2005 he applied to the Tribunal for external review. Subsequently the University re-estimated the time that would be involved in dealing with Mr McGuirk's application. The estimate was that 9 hours work was involved and that an advance deposit of $270 would be appropriate based on a charge rate of $30 per hour. 5 After hearing the case, the Tribunal made the following orders: 1. The decision under review is set aside. 2. Mr McGuirk is to pay an advance deposit of $270 to the University within 14 days of these orders. 3. The matter is to be listed for further hearing on a date to be fixed by the Registry. 6 Mr McGuirk has appealed to the Appeal Panel against these orders. He may appeal on any question of law, but the Appeal Panel's leave is required before the appeal may extend to a review of the merits of the appealable decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2). Preliminary point on jurisdiction 7 Background. An issue which the Appeal Panel did not identify until after the hearing was whether the Tribunal had correctly identified the decision it was reviewing and, if so, whether it had jurisdiction to review that decision, or any other decision that the University had made. The Appeal Panel requested and received submissions from the parties on this general issue and said that it would determine the question without reconvening. The question the Appeal Panel asked the parties to address was whether the Tribunal had jurisdiction to review the decision that it purported to review, that is the University's internal review decision (dated 5 May 2005) to refuse to continue to deal with the application unless a specified amount was paid. Mr McGuirk said that it did. Mr Singleton, representing the University, submitted that the Tribunal should not be construed as having purported to review that decision. If the Tribunal did purport to review that decision, it said the error was not significant and, in any case, the Tribunal had jurisdiction to hear the case in the way that it did and to make the orders that it made. 8 The preliminary issues as to jurisdiction require the Appeal Panel to: a) identify the decision the Tribunal reviewed; b) determine whether the Tribunal had jurisdiction to review that decision or any other decision that the University made; c) if it did, identify the powers the Tribunal had when reviewing that decision; and d) determine whether the orders the Tribunal made were within power. Overview of legislative scheme 9 Introduction. Before addressing each of these issues, it is useful to outline the procedures relevant to this case for applying for access to documents under the FOI Act; for seeking internal review of decisions relating to such applications and for seeking external review of decisions from the Tribunal. A person has the right to be given access to an agency's documents in accordance with the provisions of the FOI Act: s 16. Applications for access to documents must be made and considered in a particular way as set out in s 17 and s 18. Sections 19 to 22 deal with matters which may arise prior to determining whether access to the requested documents should be given or refused. Those provisions relate to incomplete and wrongly directed applications, the transfer of applications to other agencies and requests for an advance deposit where the costs to the agency of dealing with an application are likely to exceed the amount of the application fee. Section 22, which is the provision the University relied on in this case, states that: Agencies may refuse to continue to deal with applications if advance deposit not paid (3) An agency may refuse to continue dealing with an application if: (a) it has requested payment of an advance deposit in relation to the application, and (b) payment of the deposit has not been made within the period of time specified in the request. (4) If an agency refuses to continue dealing with an application under subsection (3): (a) it shall refund to the applicant such part of the advance deposits paid in respect of the application as exceeds the costs incurred by the agency in dealing with the application, and (b) it may retain the remainder of those deposits. (5) An agency that refuses to continue to deal with an application under this section must forthwith cause written notice of that fact to be given to the applicant. (6) A refusal to continue to deal with an application under this section is taken to be a determination that is subject to internal review under Part 3 and external review under Part 5, and the provisions of those Parts apply accordingly. 10 Acceptance phase and determination phase. The decisions made under s 19 to s 22 represent the "acceptance phase" of an application made under the FOI Act because the matters dealt with in those provisions arise prior to an agency determining whether access to the documents should be given under s 24. If an agency has refused to continue to deal with an application under s 22, it is not required to determine whether access to the document should be given: s 24(3). Once the acceptance phase is complete, s 24 obliges an agency to determine whether to give access to a document and any charge payable in respect of dealing with the application or in respect of giving access to the document. In this phase, the agency may give, refuse or defer access to a document, consider whether any charge is payable and must give notice of its determination: s 24- s 28. We refer to the second phase as the "determination phase". 11 Internal review. Only one kind of decision made in the acceptance phase is subject to internal review, that is a decision to refuse to continue to deal with an application following the non-payment of an advance deposit within a specified time: s 22(6). Where a person is aggrieved by a decision made in the determination phase, that person may apply for an internal review of that decision as long as the decision is one of the kinds of decision listed in s 34(7). If an internal review of either kind of decision is requested, but is not completed within 14 days, the agency is taken to have made a determination under section 24 refusing access to the document to which the application relates: s 34(6). This provision applies regardless of whether the decision was a decision to refuse to continue to deal with the application or a decision made in the determination phase. 12 External review. The Tribunal has jurisdiction to review a decision made under the FOI Act if that Act provides that applications may be made to it for a review of a decision or class of decisions made by an agency such as the University: ADT Act, s 38. The FOI Act identifies a decision to refuse to continue to deal with an application following non-payment of an advance deposit within a specified time as a decision which is subject to external review: s 22(6). In addition, in relation to decisions made in the determination phase, s 53(1) gives a "person who is aggrieved by a determination made by an agency or Minister under s 24 or 43", a right to apply to the Tribunal for a review of that determination: s 53(1). (Section 43 relates to applications to amend records and is not relevant to these proceedings.) Section 56 gives the Tribunal power to review certain "delayed" decisions, that is, decisions that are made after a deemed decision and before the Tribunal has disposed of the application. Identification of decision 13 The University made, or was deemed to have made, three decisions: 1) the original decision made on 6 April 2005 to refuse to continue to deal with the application because the advance deposit was not paid within the specified time; 2) the deemed decision made in late April 2005 to refuse access to the requested documents following an application for internal review which had not been responded to within 14 days: FOI Act, s 34(6); and 3) the delayed decision headed "internal review" made on 5 May 2005 and finding that the University should refuse to continue to deal with the application unless the University receives payment of the advance deposit amount ($660) by 10 May 2005. 14 We refer to these decisions as the original, the deemed and the delayed decisions respectively. The first issue is which of these decisions did Mr McGuirk and the Tribunal identify as the reviewable decision? 15 Application to the Tribunal. In answer to the question on the application form as to which decision he wished to have reviewed, Mr McGuirk wrote "Determination by the University of New South Wales in respect of my FOI application dated 8 March 2005. Letters from Ms D Osborn, UNSW FOI Officer dated 22 March 2005 (requesting payment of an advance deposit) and 6 April 2005 (making the original decision)." In response to the question on the application form as to when the decision was made, Mr McGuirk wrote "deemed refusal as of 30 March 2005". (This was not the deemed internal review decision.) In response to the question as to whether the decision had been the subject of an internal review, Mr McGuirk indicated that it had and cited the letter from Mr Michael Milne dated 5 May 2005 (the delayed decision). In response to the question as to the reasons for seeking review of the decision, Mr McGuirk wrote, "The advance deposit of $660 requested by the University is unreasonable and excessive and prima facie, an attempt by the University to avoid its obligations under the Freedom of Information Act 1989." On the basis of Mr McGuirk's application, he identified the original decision and/or the delayed internal review decision as the decision he was applying to be reviewed. 16 Tribunal's characterisation of the decision. The Tribunal described the University's determinations in the following way at [4] and [5]: Mr McGuirk submitted an application for an internal review of the determination refusing to continue to deal with his application. Mr Michael Milne, Executive Officer to the Deputy Vice-Chancellor (Academic) purported to determine the internal review application, however this determination was not completed within the 14-day period allowed by section 34(6) of the FOI Act . Mr Milne concluded that the request for payment of $660.00 as an advance deposit was reasonable in the circumstances. Mr McGuirk then brought an application to the Tribunal for a review of the University's determination. 17 At [10] the Tribunal said that: The issue for determination is whether the determination by the University to refuse to continue to deal with Mr McGuirk's application was the correct and preferable decision. This necessarily requires a finding as to whether the University was entitled to request an advance deposit and if so, how much. 18 The way the Tribunal described the University's determinations in [4] and [5] of its decision suggests that the Tribunal understood Mr McGuirk's application to be requesting a review of either the original or the delayed decision. The Tribunal referred to the delayed decision as a decision Mr Milne 'purported' to make, suggesting that it was made without power. The Tribunal then characterised the issue at [10] as whether the determination "to refuse to continue to deal with Mr McGuirk's application was the correct and preferable decision". The only determination to refuse to continue to deal with the application was the original determination. The delayed determination was a "decision" to refuse to continue to deal with the application at some time in the future, that is, if the advance deposit was not paid by 10 May 2005. The Tribunal did not identify the deemed decision as the decision that was the subject of review. 19 Mr McGuirk's submission. In answer to the Appeal Panel's question, Mr McGuirk submitted that the Tribunal had jurisdiction to review the delayed decision because that was the clear intent of the parliament as stated in the second reading speech. However, later in his submissions, Mr McGuirk made it clear that he regarded the deemed decision to refuse access to the requested documents made in late April to be the reviewable decision. He said that the Tribunal failed to address this question and instead asked itself how much the advance deposit should be. According to Mr McGuirk, that constitutes a failure on the part of the Tribunal to exercise its jurisdiction. 20 University's submission. According to Mr Singleton, representing the University, Mr McGuirk's application for external review to the Tribunal, taken as a whole, indicates that he was challenging the original decision. The University also submitted that the Tribunal's decision could be interpreted as reviewing that decision. Alternatively, the University submitted that Mr McGuirk had sought review of the deemed decision and that the Tribunal had reviewed that decision. According to the University the delayed decision had no legal effect because the deemed decision had already determined the application for internal review in a particular way. 21 Conclusion. In his application to the Tribunal, Mr McGuirk identified the original decision or the delayed decision as the reviewable decision. The Tribunal identified the original decision as the reviewable decision. It did not consider itself to be reviewing the deemed decision because it did not frame the issue as whether or not the determination to refuse access to the documents was the correct and preferable decision. Instead the Tribunal identified the determination to refuse to continue to deal with the application as the issue. The original decision was the only decision that refused to continue to deal with the application. The delayed decision requested an advance deposit and said that the University should refuse to continue to deal with the application unless the University receives payment of $660 by 10 May 2005. In our view, the Tribunal identified the original decision as the reviewable decision. Did the Tribunal have jurisdiction to review the original decision, or any of the other decisions the University made? 22 The Tribunal did not have jurisdiction to review the original decision or the delayed decision. It did have jurisdiction to review the deemed internal review decision but it did not do so. We explain our reasons for these conclusions below. 23 Section 22(6) states that: A refusal to continue to deal with an application under this section is taken to be a determination that is subject to internal review under Part 3 and external review under Part 5, and the provisions of those Parts apply accordingly. 24 Part 3 of the FOI Act, (relating to internal reviews) comprises s 16 to s 38. The relevant provision is s 34 relating to internal reviews. That provision entitled Mr McGuirk to request an internal review of the original decision if the pre-requisites in s 34(2) as to the form and timing of that application were complied with. They were complied with in this case. 25 In relation to external review, s 22(6) states that Part 5 applies to a decision to refuse to continue to deal with an application. The provisions in Division 2 of Part 5 which are particularly relevant to Mr McGuirk's application, are s 53 and s 54. Section 53 states that: (1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination. (2) A review application may not be made: (a) while the determination is subject to a right of review under section 34 or 47, or (b) if the determination has been subject to a right of review under section 34 or 47 but no application for such a review of the determination was made while it was subject to that right, or (c) while any relevant complaint is being investigated by the Ombudsman. (3) For the purposes of this section, a person is aggrieved by a determination: (a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36 if the determination is to the effect that: (i) an agency or Minister refuses to give the person access to a document, or (ii) access to a document is to be given to the person subject to deferral, or (iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or (iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or (v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred, or (b) in the case of a determination that relates to an application made by some other person under section 17, 34 or 36, in respect of a document to which one or more of the provisions of Division 2 of Part 3 applies if: (i) an agency or Minister should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or (ii) an agency or Minister should have, and has, taken such steps but the determination is not in accordance with the views of the person, or (c) in the case of a determination that relates to an access application made by the person under section 40, 47 or 49-the determination is to the effect that an agency or Minister refuses to amend the agency's records or that Minister's records, as the case may be, in accordance with the application, and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections. 26 Section 53(1) is the counterpart to s 22(6). It gives people aggrieved by certain decisions the right to apply for external review of those decisions. The decisions to which s 53(1) applies is further explained in s 53(2) and (3). Section 53(2) sets out the circumstances which must be satisfied before an application can be made to the Tribunal for external review of a decision. There is no dispute that those circumstances were satisfied in this case. Section 53(3) sets out the circumstances in which a person is "aggrieved by a determination". Importantly, the words in italics in s 53 (above) restrict external reviews to determinations that have been made as a consequence of an internal review unless the decision was not subject to a right of review. That provision also applies to a decision made under s 22(6) to refuse to continue to deal with an application because the provisions of Part 5 "apply accordingly": s 22(6). Consequently, before a person has the right to external review of a determination, that determination must have been made as a consequence of an internal review under s 34 (whether actual or deemed) unless the original determination was not subject to a right of review. In this case the original decision was subject to a right of review. 27 It follows that the Tribunal had no jurisdiction to review the original decision because it was not a determination that had been made as a consequence of a review under section 34. It also follows that the Tribunal did have jurisdiction to review the deemed internal review decision because that decision was made under s 34: s 34(6). That conclusion is also supported by the fact that s 34(6) deems the agency to have made a determination under section 24 refusing access to the document if it fails to deal with the application within 14 days. If the legislature had intended to give an applicant the right to external appeal of the original decision, it would have deemed the decision on internal review to be the same as the original decision. By deeming the decision to be a refusal to give access to the documents, the legislature has ensured that issues relating to advance deposits are put to one side and the question of the applicant's right to be given access to an agency's documents, is brought before the Tribunal. 28 Delayed decision. Section 56 gives the Tribunal jurisdiction, in certain circumstances, to review a delayed decision. Those circumstances do not apply in this case. That is because the delayed decision was a decision to request an advance deposit. That is not one of the kinds of decision listed in s 56(4). In any event, the delayed decision was not a reviewable decision because it was not a decision to refuse to continue to deal with an application. Rather, it was a decision to refuse to continue to deal with the application if an advance deposit was not paid at some future time. It is not until the amount remains unpaid after the time specified for payment has expired that an agency may refuse to continue to deal with the application: s 22(3). 29 Conclusion. We are satisfied on the basis of this analysis that the only decision that the Tribunal had jurisdiction to review was the deemed internal review decision to refuse to give access to the documents. It follows that the Tribunal made an error by purporting to review the original decision. The next question is whether, since the Tribunal did have jurisdiction to review the deemed decision, that error made any difference to the decision the Tribunal ultimately reached: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ. In our view it did make a difference. Our reasons are set out below. Powers of the Tribunal on review 30 Mr McGuirk's submission. Having identified the reviewable decision as the deemed decision to refuse access to the requested documents made in late April, Mr McGuirk went on to say that the Tribunal now stands in the shoes of the University and is under an obligation to exercise the powers conferred on the University and to determine the 'correct and preferable' decision. Mr McGuirk went on to make further submissions about the role and obligations of the Tribunal generally. The Appeal Panel did not request submissions or evidence on that topic and we have not taken them into account. It would be a breach of procedural fairness for us to do so given that the hearing had finished when Mr McGuirk provided that material and the decision had been reserved, subject only to further submissions on the jurisdictional point. 31 University's submissions. Mr Singleton submitted that the Tribunal's powers on review, as set out in s 63 of the ADT Act, mean that the Tribunal must consider the issues de novo, that is "afresh" or "beginning again". He said that the Tribunal is not reviewing the result reached by the administrator but is reconsidering or re-hearing the issue that faced the administrator. His conclusion was that for most purposes it is not necessary to decide whether the Tribunal has reviewed the original decision or the internal review decision because what the Tribunal must do is receive, hear and determine for itself the application for access to documents. We do not agree with this characterisation of the Tribunal's role. We agree that the Tribunal is hearing the application afresh but it is also reviewing a particular decision. That decision must be identified because the agency has the burden of establishing that the determination is justified: FOI Act, s 61. 32 Significance of reviewing the deemed decision. Section 34(6) does not deem the agency to have re-made the decision it originally made; it deems it to have made a decision to refuse access to the documents. It is that decision that the University must justify under s 61 and which the Tribunal must review, unless the circumstances relating to delayed determinations in s 56 apply. They do not apply in this case. Once a decision refusing access is deemed to have been made, the process has gone beyond the acceptance phase where the agency could request an advance deposit. The legislative purpose of s 34(6) is to ensure that an applicant has a decision about access which he or she can apply to the Tribunal to have reviewed. Next, we identify the powers or functions the Tribunal has when reviewing that decision. 33 Nature of merits review. Section 63 of the ADT Act sets out the powers of the Tribunal when reviewing a reviewable decision: (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose , the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. (Italics added.) 34 This formulation of the Tribunal's powers is substantially the same as the powers given to the Administrative Appeals Tribunal in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). We have drawn on the jurisprudence in relation to that provision in determining the role of the Tribunal under s 63. 35 Burden of proof. Unlike the traditional model for merits review, where there is no onus on either party to prove their case, the FOI Act imposes an onus on an agency to establish that the determination is justified: s 61. This provision does not substantially affect the nature of the Tribunal's role. It merely means that the agency must satisfy the Tribunal as to any disputed questions of fact: Bennett v University of New England (unreported, NSW Dist Ct, Dunford J, 7 August 1991) at p 10. Where the Tribunal is not persuaded one way or the other, the statutory onus comes into play and the agency's assertion as to the facts will not be made out: Federal Commissioner of Taxation v Elton (1990) 20 ATR 1796 at 1798. 36 Exercising the functions of the administrator. While it is common to regard the Tribunal as "standing in the shoes" of the administrator, the Tribunal is not the primary decision maker and, under s 63(2), it may only exercise the functions conferred on the administrator for the purpose of reviewing the decision: In Commonwealth Bank Officers Superannuation Corp Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427 the Court said at [29]: Ultimately, the question turns upon the proper construction of s 43 of the AAT Act. Section 43 empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision maker, provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. It is neither necessary nor permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the decision maker's powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review, or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review. 37 Powers on review. For the purpose of reviewing the decision to refuse access, the Tribunal has all the functions of the agency. The function of requesting an advance deposit is not a function that the University (or the Tribunal) has for the purpose of reviewing a decision to refuse access to documents. The acceptance phase has been completed once a decision is made in relation to access. The Tribunal must review the decision about access. For that purpose it may determine, among other things, whether access to the disputed documents is to be given or refused. 38 Conclusion. It follows from this analysis that the Tribunal made an error of law in purporting to review the original decision. That error made a fundamental difference to the decision the Tribunal made. Had the Tribunal reviewed the deemed internal review decision, it would not have been able to exercise the function of requesting an advance deposit. This conclusion makes it unnecessary to consider any of the remaining grounds of appeal. Orders 1. The Tribunal's orders are set aside. 2. The matter is remitted to the Tribunal to review the deemed decision to refuse access to the requested documents. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.