FEDERAL COURT OF AUSTRALIA
EMJ18 v Secretary, Department of Home Affairs [2024] FCAFC 87
ORDERS
Applicant | ||
AND: | SECRETARY, DEPARTMENT OF HOME AFFAIRS Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY AND HORAN JJ:
1 This is an appeal on a question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal. By that decision, the Tribunal refused the applicant’s application for the Tribunal to make a recommendation under s 66(1) of the Freedom of Information Act 1982 (Cth) (FOI Act): VKJY v Secretary, Department of Home Affairs [2023] AATA 2551 (AAT (2023)).
2 The appeal raises a discrete question as to the proper construction of s 66(1) of the FOI Act. As first enacted by the Freedom of Information Amendment Act 1983 (Cth) (1983 Amending Act), s 66 conferred a power on the Tribunal to recommend to the Attorney-General that the Commonwealth should pay the costs of a successful applicant in review proceedings before the Tribunal. However, in 2010, the FOI Act was amended to introduce a new scheme under which decisions by agencies on access requests are subject to external merits review by the (then) newly established Australian Information Commissioner. As a result of those amendments, there are now two ways in which a matter under the FOI Act can be brought before the Tribunal:
(1) by review of a decision of the Information Commissioner; or
(2) by direct review of an agency’s decision if the Information Commissioner is satisfied that the interests of the administration of the FOI Act make it desirable that the agency’s decision be considered by the Tribunal.
3 At the time that the provisions dealing with review of agency decisions by the Information Commissioner were introduced into the FOI Act, a consequential amendment was made to the costs recommendation power in s 66 of the FOI Act to reflect the new scheme of merits review, and, in particular, the interposition of review by the Information Commissioner.
4 Under s 66(1)(a) as amended and as applied in this case, the Tribunal’s power to make a costs recommendation arises where “a person applies, under section 57A, to the Tribunal for review of a decision of the Information Commissioner on an IC review”. It is clear that this encompasses an application under s 57A(1)(a) for the review of a decision of the Information Commissioner under s 55K on an “IC review” (ie, a review of an agency’s decision). However, the provision does not in terms address an application under s 57A(1)(b) for review of an IC reviewable decision in relation to which the Information Commissioner has decided under s 54W(b) not to undertake an IC review on the basis that he or she is satisfied the interests of the administration of the FOI Act make it desirable that the IC reviewable decision be considered by the Tribunal. Section 57A(1)(b) describes such applications as “matters inappropriate for IC review”.
5 The question raised by this appeal is whether, as the applicant contends, the Tribunal’s power to make a costs recommendation under s 66(1) of the FOI Act extends to an application made under s 57A(1)(b) for review of an IC reviewable decision in circumstances where the Information Commissioner has made a decision under s 54W(b). In the alternative, the applicant contends that the Parliament intended that s 66(1)(a) extend to applications for review of IC reviewable decisions before the Tribunal and that words should be inserted into s 66(1)(a) (or omitted from it) so as to capture that class of cases.
6 For the reasons set out below, the text of s 66(1)(a) is incapable of being read as covering an application for review of an IC reviewable decision in respect of which the Information Commissioner has made a decision under s 54W(b). Such an application is not one for review of “a decision of the Information Commissioner on an IC review”. Nor is the present case one where the words which the applicant seeks to read into s 66(1)(a) can be inserted. The insertion (or omission) of words for which the applicant contends is too large and at variance with the language in fact used in s 66(1)(a), and impermissibly invites the Court to engage in judicial legislation. Nor can it be said with any certainty that, in making the consequential amendments to s 66(1)(a), the Parliament overlooked and inadvertently failed to deal with the possibility that a costs recommendation might be made by the Tribunal directly on review of an IC reviewable decision by reason of an exercise of the power under s 54W(b).
7 It follows that the appeal must be dismissed.
8 Finally, we note that the parties accept that, if the applicant were successful on the construction issue, then this is an appropriate case in which a costs recommendation should be made. The applicant seeks that the matter be remitted to the Tribunal with a direction that a costs recommendation should be made. However, while we would have accepted the appropriateness of granting relief to this effect if the applicant had succeeded, that issue does not arise in light of the decision which we have reached.
9 The facts are not in issue and can be shortly stated.
10 On 15 February 2021, the applicant requested that the Department of Home Affairs provide him with access to documents under the FOI Act.
11 On 15 March 2021, a delegate of the Secretary of the Department, the respondent, identified four electronic files as being relevant to the application. The delegate released three of those files to the applicant in full and released the fourth file to the applicant in part.
12 The applicant applied on 27 March 2021 for review of the delegate’s decision by the Information Commissioner.
13 On 20 December 2021, the Information Commissioner decided, under s 54W(b) of the FOI Act, that the interests of the administration of the FOI Act made it preferable for the Tribunal to review the delegate’s decision.
14 The applicant applied to the Tribunal for review of the delegate’s decision on 2 January 2022.
15 On 14 December 2022, the Tribunal handed down its decision in respect of the substantive issues: VKJY v Secretary, Department of Home Affairs (Freedom of Information) [2022] AATA 4306 (AAT (2022)). The Tribunal found that there were errors with respect to the respondent’s position in relation to legal professional privilege claims under s 42(1) and public interest conditional exemptions under s 47E(c), and that the respondent had not undertaken adequate searches for documents as required by s 24A. Among other things, the Tribunal (constituted by a Senior Member and a Member) found at [15] that the respondent’s approach to legal professional privilege exemptions under s 42(1), namely, to claim the exemption by including the words “Please note Counsel Advice [SEC=OFFICIAL; Sensitive, ACCESS = Legal=Privilege]” in the “subject” box of an email:
is a formulaic approach designed by mere assertion to cloak all correspondence in the mantle of privilege and thereby claim a section 42(1) exemption, regardless of the actual content or status of the document in question. This is an incorrect approach in asserting legal professional privilege. It no more achieves this than would stamping every document “secret” thereby automatically render it so. It is the Humpty Dumpty principle of asserting that “[w]hen I use a word, it means just what I chose it to mean – neither more nor less”.
16 The Tribunal directed that the respondent release certain documents to the applicant and carry out further searches for documents.
17 On 14 December 2022, the applicant applied for a recommendation under s 66 of the FOI Act that his costs with respect to the Tribunal proceeding be paid by the Commonwealth.
18 As indicated above, on 14 August 2023, the Tribunal handed down its decision in AAT (2023). The Tribunal stated that it “would have made such a recommendation [regarding costs] if it were in our power to do so”: at [1]. However, the Tribunal considered that “applying ordinary rules of statutory construction, the meaning of s 66(1) of the [FOI] Act is clear”: at [26]. The Tribunal found that, because no application had been made under s 57A(1)(a) for review of a decision of the Information Commissioner and the matter had come to the Tribunal directly to review the IC reviewable decision, “there is no power to make a cost recommendation because s 66(1) is not engaged”: at [26]. Accordingly, the Tribunal refused the application.
3. RELEVANT LEGISLATIVE SCHEME
19 It is helpful to outline the merits review process established by the FOI Act before explaining the particular pathway which the review process in the present case undertook. As earlier indicated, in the present case the FOI Act as amended by the Freedom of Information Amendment (Reform) Act 2010 (Cth) (the 2010 Amending Act) applied. However, it is relevant to explain the legislative scheme both before and after the amendments were introduced, given the significance attributed to the legislative history by the applicant in support of his construction of s 66(1).
3.1 Legislative scheme prior to 2010
20 The previous version of the legislative scheme provided two avenues for seeking review of an agency’s decision in relation to an access request. First, the person could apply to the agency for internal review of the decision under s 54 of the FOI Act (see the version of the FOI Act from 1 March 2010 to 31 October 2010). Secondly, the person could apply to the Tribunal under s 55 of the FOI Act for review of the internal review decision or, where the applicant has not been informed of the result of the internal review after 30 days, the original agency decision.
21 Section 66(1), at that time, provided:
Where:
(a) a person makes application to the Tribunal under section 55 for review of a decision constituting the action to which the complaint relates; and
(b) the person is successful, or substantially successful, in his or her application for review;
the Tribunal may, in its discretion, recommend to the Attorney-General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.
22 Section 66 was introduced into the FOI Act by the 1983 Amending Act. In Re Paterson and Department of Home Affairs and Environment (1985) 7 ALD 403, the meaning of the words “of a decision constituting the action to which the complaint relates” were regarded by Deputy President Hall as unclear, and the meaning of the section as a whole as “ambiguous”: at [13] and [21] respectively.
23 The 1983 Amending Act also introduced a process for a person making a complaint to the Ombudsman about the exercise of powers or the performance of functions under the FOI Act: s 52B (subsequently repealed); see s 57 of the version of the FOI Act from 1 March 2010 to 31 October 2010. The 1983 Amending Act also gave the Ombudsman the power to “represent, or arrange for another person to represent” a person who made an application to the Tribunal, if it was reasonable for the Ombudsman to do so: former s 52F. However, this power was repealed at an earlier time and was not included in the 2010 version of the FOI Act.
3.2 Current legislative scheme
24 In the Second Reading Speech to the Freedom of Information Amendment (Reform) Bill 2009 (Cth) (2009 Bill) (which became the 2010 Amending Act) in the House of Representatives, the Parliamentary Secretary to the Prime Minister and Parliamentary Secretary for Trade explained that the proposals contained in the Bill were drawn in part from key findings of the joint Australian Law Reform Commission and Administrative Review Council’s Open government report (ALRC Report), which were “updated and supplemented by other measures to deliver better access to government information.”: Commonwealth, Parliamentary Debates, House of Representatives, 26 November 2009, p 12971 (Anthony Byrne).
25 The “primary purpose” of the 2009 Bill was “to promote a pro-disclosure culture across government and to build a stronger foundation for more openness in government”: Revised Explanatory Memorandum, 2009 Bill, at p 1. Similarly, the Second Reading Speech stated that the Bill was “intended to deliver more effective and efficient access to government information and promote a culture of disclosure across government” and recognised that “transparent and open government is a key component of a healthy and vibrant democracy”: at pp 12971 and 12973 respectively.
26 In furtherance of this purpose, among other things the 2010 Amending Act effected structural reforms to the process of merits review. By way of an overview, the Second Reading Speech (at p 12972) explained that:
The government recognises that the promise of better information disclosure requires structural reforms. The establishment of an Information Commissioner and an FOI Commissioner, as independent officers, will address a long-standing lacuna in effective FOI administration. In addition to promotional, monitoring and guidance functions, the commissioners will directly participate in the process by reviewing access decisions made by agencies and ministers. Review of a decision by the Information Commissioner will not replace review by the Administrative Appeals Tribunal (AAT). A party can still apply for AAT review after the Information Commissioner review, if needed. Both forums will offer full independent merits review, unfettered by the limiting effects of conclusive certificates. Retaining an option of review by the AAT, an experienced review body, will be particularly important for highly contested FOI matters.
27 The current legislative scheme therefore has three levels of merits review.
28 First, a person can seek internal review by the relevant agency of (relevantly) an “access refusal decision” under Part VI of the FOI Act.
29 Secondly, a person can make an application for “IC review” by the Information Commissioner under s 54L in Division 3 of Part VII of the FOI Act. An “IC review” is defined as “a review of an IC reviewable decision undertaken by the Information Commissioner” under Part VII: s 54G.
30 An “IC reviewable decision” includes, relevantly (ss 54K and 54L):
(1) an access refusal decision;
(2) a decision made by an agency on internal review of an access refusal decision; and
(3) a decision refusing to allow a further period for making an application for internal review of an access refusal decision.
31 However, the Information Commissioner has a discretion not to undertake an IC review. Specifically, s 54W of the FOI Act provides that:
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) the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal; or
(c) the IC review applicant fails to comply with a direction of the Information Commissioner.
32 The Explanatory Memorandum relevantly explained with respect to s 54W(b) that (p 31):
Under proposed paragraph 54W(b), the Information Commissioner may decide not to undertake a review if satisfied that the interests of the administration of the FOI Act make it desirable that the decision be reviewed by the AAT. One of the reasons for retaining a right of review to the AAT is that, as an experienced review body, the AAT can properly deal with highly contested applications. This provision enables the Information Commissioner to decline to undertake a review if satisfied it would be more appropriate and efficient for the application to be made directly to the AAT. It is intended that the Information Commissioner would undertake most review applications.
33 Absent a decision not to undertake an IC review under s 54W, the Information Commissioner is required to undertake an IC review and make a decision in writing to affirm, vary, or set aside and substitute the IC reviewable decision. Specifically, s 55K relevantly provides:
(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.
…
34 The Information Commissioner must give a copy of a “decision on an IC review” to each review party, and must publish a “decision on an IC review” to members of the public generally: s 55K(6), (8).
35 The third merits review process is review by the Tribunal under Part VIIA of the FOI Act. Section 57A(1) provides that:
An application may be made to the Tribunal for review of the following decisions:
(a) a decision of the Information Commissioner under section 55K on an IC review;
(b) if the Information Commissioner makes a decision under paragraph 54W(b) (matters inappropriate for IC review)—the IC reviewable decision in relation to which the Information Commissioner makes the decision.
36 The Explanatory Memorandum stated with respect to (then) proposed s 57A of the 2009 Bill that “[t]he effect of this provision is that the AAT may review any decision that is amenable to review by the Information Commissioner”: at p 37.
37 Section 66(1) as amended in 2010 provides with respect to an applicant’s costs that:
Where:
(a) a person applies, under section 57A, to the Tribunal for review of a decision of the Information Commissioner on an IC review; and
(b) the person is successful, or substantially successful, in his or her application for review;
the Tribunal may, in its discretion, recommend to the responsible Minister that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.
38 Finally, beyond merits review, the FOI Act also includes provision for an appeal to the Federal Court on a question of law under s 56, within Part VII of the FOI Act. Section 56(1) provides that “[a] review party may appeal to the Federal Court of Australia, on a question of law, from a decision of the Information Commissioner on an IC review.”
39 The notice of appeal from a tribunal contains a single question of law:
Whether the Tribunal correctly concluded that it does not have jurisdiction under s 66(1) of the FOI Act to recommend to the responsible Minister that the costs of the applicant in relation to the proceedings be paid by the Commonwealth, in circumstances where the proceedings have come before the Tribunal under s 57A(1)(b) of the FOI Act, following a decision of the Information Commissioner under s 54W(b) of the FOI Act.
40 The six grounds of appeal contend that the Tribunal erred in its construction of s 66(1) and in relying upon earlier decisions of the Tribunal in Re Littlejohn and Department of Social Security (1989) 17 ALD 482 at 486 when that decision was distinguishable and Australia Conservation Foundation Incorporated and Minister for the Environment (Freedom of information) [2022] AATA 307 (ACF) which was wrongly decided. As such, the parties accept that the appeal turns on a single question of statutory construction, namely, whether s 66(1) should be construed as including the power to make a costs recommendation in respect of applications brought before the Tribunal following a decision of the Information Commissioner under s 54W(b).
41 The applicant accepts that, in order to succeed, the Court must accept one of two constructions of the words “of a decision of the Information Commissioner on an IC review” in s 66(1)(a), namely:
(1) to read the words in s 66(1)(a) as meaning no more than “after the conclusion of the review process established by Part VII of the FOI Act”; or
(2) that s 66(1)(a) be read so as to add the following words in underlining:
Where:
(a) a person applies, under section 57A, to the Tribunal for review of a decision of the Information Commissioner on an IC review or an IC reviewable decision after a decision under paragraph 54W(b)”; …
(Applicant’s outline of submissions (AS) at [26].) (The applicant’s first and second constructions.)
42 The applicant contends that the first construction should be accepted, applying ordinary principles of statutory interpretation and focusing upon textual considerations. It is convenient, therefore, to begin by considering whether the applicant’s first construction is available focusing upon the text of s 66(1)(a). For the reason which we explain below, it is not. As such, both of the applicant’s constructions ultimately involve reading s 66(1)(a) as if the provision contains additional words (or alternatively as if words were omitted) so as to expand its field of operation.
43 In support of the second construction, the applicant relies upon the expressed objects of the FOI Act, the legislative history of s 66 and related amendments, and the extrinsic materials to the 2009 Bill pursuant to which s 66 in its current form, together with related amendments to the FOI Act, were made.
4.2 The applicant’s first construction focusing on the text of s 66(1)(a)
44 The principles of statutory construction are well-settled and were summarised by Perry and Stewart JJ in Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163; (2020) 280 FCR 397 at [46]–[48] as follows:
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky), McHugh, Gummow, Kirby and Hayne JJ explained that:
“69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.”
The importance of starting with the statutory context and text was recently emphasised by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 in the following passage:
“14. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky with approval]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”
Context “in its widest sense”, as referred to in this passage, includes “such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy”: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (cited with [approval] in SZTAL at [14]). To have regard to context in this sense, as integral to the process of statutory construction irrespective of whether ambiguity or inconsistency exists in the literal text, accords with the mandate in s 15AA of the Acts Interpretation Act that the interpretation which best gives effect to the legislative purpose must be preferred to any other interpretation: Mills v Meeking (1990) 169 CLR 214 at 235 (Dawson J). As a result, as Dawson J also explained with respect to Victoria's equivalent to s 15AA, the approach required by interpretive provisions of this kind “allows a court to consider the purposes of an Act in determining whether there is more than one possible construction” (ibid); see also the discussion in Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, 2019) … at [2.17]-[2.20]; Herzfeld P and Prince T, Interpretation (2nd ed, LawBook, 2020) … at [7.20]-[7.30]. That said, it must also be borne steadily in mind that, as Hayne, Heydon, Crennan and Kiefel JJ cautioned in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, “[h]istorical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention”.
(Emphasis in original in italics; emphasis in boldface added.)
45 Accordingly, in ascribing meaning to text, the Court must have regard, from the outset, to the context and purpose of the provision, including considering legitimate secondary material: see also Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39]. As Allsop CJ explained in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 192; (2020) 282 FCR 1 at [4]–[5]:
The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provisions are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material. …
There can be no doubt that the search for principle in the High Court reveals a settled approach of some clarity: R v A2 (2019) 277 A Crim R 539; 373 ALR 214 at [31]-[37]. The notion that context and legitimate secondary material such as a second reading speech or an Explanatory Memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985 …
46 Nonetheless, whilst a Court construing a statute must consider the context in which a provision was enacted and may have regard in so doing to extrinsic materials, those materials are relevant only insofar as they shed light on the text itself. As the High Court unanimously held in Consolidated Media Holdings (at [39]):
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text” [quoting Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
4.2.2 The first construction finds no foothold in the text of s 66(1)(a)
47 In support of the first construction as set out in [41(1)] above, the applicant submits that the reference to “an IC review” in the context of the phrase “on an IC review” in s 66(1)(a) should be read as “the sequence of steps available to be taken by the Commissioner when proceedings are brought before her under Part VIIA of the Act”: AS [27].
48 That construction was said to be supported first, by the choice of the preposition “on” in contrast to the word “after” in s 55K and by the references to “on an IC review” in ss 55F, 55N, and 55Q. That submission, however, relies upon isolating certain words in s 66(1) and reading them out of context. The words “on an IC review” in s 66(1)(a) are not used in isolation, but in the context of the composite phrase “a decision of the Information Commissioner on an IC review”. That is manifestly a reference back to a decision made by the Information Commissioner under s 55K(1) “[a]fter undertaking an IC review”. Thus, for example, s 55K(2)–(8) inclusive describe such a decision as “a decision on an IC review”. The use of the phrase “on an IC review” in s 55F providing for the Information Commissioner to make a decision “on an IC review” with the parties’ agreement before completing the review is consistent with this construction, as is the use of the phrase, for example, “decision of the Information Commissioner under section 55K on an IC review” in s 55N: see also ss 55Q and 56. However, a decision made by the Information Commissioner under s 54W(b) “not to undertake an IC review” (or “not to continue to undertake an IC review”) simply cannot be characterised as a “decision of the Information Commissioner on an IC review”.
49 Nor can an application made to the Tribunal under s 57A(1)(b) following a decision by the Information Commissioner under s 54W(b) be characterised as an application for review of the decision of the Information Commissioner. In such circumstances, the review conducted by the Tribunal is a review of the IC reviewable decision, and not the Information Commissioner’s decision under s 54W(b) that the matters are inappropriate for IC review (i.e. that the interests of the administration of the FOI Act make it desirable that the IC reviewable decision be considered by the Tribunal).
50 The applicant’s contention in oral submissions that the IC reviewable decision is given the “imprimatur” of the Information Commissioner as a result of the Commissioner making a decision under s 54W(b) cannot overcome this fundamental difficulty: see transcript (T)-22.26–31. In any event, the accuracy of that contention may be doubted given that, when making a decision under s 54W(b), the Information Commissioner does not necessarily endorse the correctness of, or even consider, the merits of the IC reviewable decision. Nor, contrary to the applicant’s contention, does the absence of the words “under s 55K” in s 66(1)(a) itself indicate that s 66(1)(a) should be given a broader meaning, given that s 66(1)(a) refers to an application to the Tribunal under s 57A which, in turn, refers to “a decision of the Information Commissioner under s 55K on an IC review”. In those circumstances, it was unnecessary for s 66(1)(a) itself to refer to a decision under s 55K.
51 Secondly, the applicant submits that the effect of construing the words “of a decision of the Information Commissioner on an IC review” in s 66(1)(a) to encompass only a decision made under s 55K would render the words “under s 57A” in s 66(1)(a) obsolete: AS [36]. It is true that the section would likely, by implication, bear the same meaning even if those words were not present, but the presence of the words identifies with particularity the provision pursuant to which such an application may be made and is not a reason to impose a strained and unnatural construction on s 66(1)(a).
52 Thirdly, the applicant relies upon the fact that s 66(1)(a) refers to s 57A (which picks up both decisions of the Information Commissioner and the original IC reviewable decision), and not merely to s 57A(1)(a). The applicant therefore relies upon the principle expressio unius est exclusio alterius to contend that, if the only type of decision to be selected was one made under s 57A(1)(a), the legislature could have made that more specific reference, and eschewed the need for the additional concluding words in s 66(1)(a) (i.e. the paragraph could have simply referred to where “a person applies, under section 57A(1)(a), to the Tribunal”): AS [36]. It may be questionable whether this contention is in truth a proper application of the expressio unius principle, under which an express reference to one matter can be regarded as an indication that other matters are excluded. In any event, this maxim should be applied with caution: see, e.g., Wentworth v NSW Bar Association (1992) 176 CLR 239 at 250 (Deane, Dawson, Toohey and Gaudron JJ); DC Pearce, Statutory Interpretation in Australia (10th ed, LexisNexis) at [4.64]. This is especially so in light of modern principles of statutory construction and, related to that, the rejection of rigid rules in statutory construction: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 401 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ); Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at [37] (French CJ, Crennan and Bell JJ). To the extent to which the maxim may have any continuing relevance, it is of limited utility. Rather, as Deane, Dawson, Toohey and Gaudron JJ held in Wentworth at 250:
[The maxim] can only be applied if “the intention it expresses is discoverable upon the face of the instrument.” And to the extent that the maxim is concerned with the drawing of an inference (specifically, a negative inference), it can only be applied if the inference is not inconsistent with other provisions of the Act and is otherwise permitted by the ordinary rules of construction.
(Citations omitted.)
53 Contrary, therefore, to the applicant’s first construction, we consider that s 66(1)(a), when read in accordance with its ordinary and natural meaning, applies only to applications to the Tribunal under s 57A for review of the Information Commissioner’s decision on an IC review. That meaning, in our view, is clear and irretractable in that no other construction of the words is reasonably available. As the respondent submits, only one kind of decision meets this description under s 57A, being that described in s 57A(1)(a). Section 57A(b), on the other hand, does not refer to a decision of the Information Commissioner “on an IC review” (emphasis added) but, by reference back to s 54W(b), to the IC reviewable decision itself, being the decision of the agency. As Thawley J considered in ACF at [27]–[28], sitting as a Deputy President on the Tribunal:
A decision under s 54W(b) not to undertake an IC review is the antithesis of a decision of the Information Commissioner on an IC review under s 55K.
When a person makes an application under s 57A(1)(b), the Tribunal reviews the IC reviewable decision. It does not review the decision of the Information Commissioner under s 54W not to undertake an IC review. Such a decision cannot be reviewed by the Tribunal.
(Emphasis added.)
54 That being so, the text of s 66(1)(a) affords no foothold for the proposition that it applies also where the decision for review before the Tribunal is an IC reviewable decision of an agency which has proceeded directly to the Tribunal, having bypassed the merits review process before the Information Commissioner by reason of an exercise of the power under s 54W(b). In this regard, as observed by Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47], “[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention”.
55 It follows that the applicant’s submissions in support of his first construction do not, with respect, grapple with the fact that the effect of that construction is effectively to omit the words of s 66(1)(a) and replace them with new text so as to expand the operation of the provision to cover a different set of circumstances. As such, there is ultimately no difference in principle between the first and second constructions for which the applicant contends. Those principles are discussed in Taylor, to which we now turn.
4.3 The applicant’s second construction: s 66(1)(a) should be construed as if it contained additional words expanding its field of operation
56 In Taylor, the High Court rejected the proposition that the “purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation”: at [37] (French CJ, Crennan and Bell JJ); see also at [65] (Gageler and Keane JJ). The relevant principles where it is sought to read a statutory provision as if it contained additional words or omitted words were explained by French CJ, Crennan and Bell JJ in Taylor at [38]–[40] as follows:
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
Lord Diplock’s three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) [of the Civil Liability Act 2002 (NSW)] as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour’s further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.”
Lord Diplock’s speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock’s conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be “too far-reaching”. In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution.
(Citations omitted; emphasis added.)
57 Similarly, Gageler and Keane JJ in Taylor said (at [65]–[66]):
Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always”. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.
(Citations omitted; emphasis added.)
58 The three conditions formulated by Lord Diplock in Jones v Wentworth Securities Ltd [1980] AC 74 at 105–106 to which French CJ, Crennan and Bell JJ referred in Taylor, were described in the following passage:
…My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] A.C. 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.
(Emphasis added)
59 Examples of cases of where it has been held appropriate to depart from the literal or grammatical meaning of the statutory text and to add or omit words were given by McHugh JA in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422, namely:
In Adler v George, the Divisional Court held that the words “in the vicinity of any prohibited place” meant “in or in the vicinity of any prohibited place”. In Wiltshire v Barrett the Court of Appeal [of England and Wales] held that the words “may arrest … a person committing an offence” meant “may arrest … a person committing or apparently committing an offence”. In Kammins the House of Lords held that the words, “No application … shall be entertained unless …” meant that some applications could be entertained although the unless clause was not satisfied.
60 As a further example, in MacAlister v The Queen (1990) 169 CLR 324, the High Court substituted the words “his or her offence” for the words “an offence” in s 77 of the Penalties and Sentences Act 1985 (Vic) to enable an appeal to the Full Court of the Supreme Court of Victoria from a sentence of imprisonment on the basis that a literal construction of the words would defeat the purpose of the legislation and produce an unreasonable result.
4.3.2 No basis exists for the second construction
61 Notwithstanding the applicant’s first construction, we did not understand the applicant to contend that this is a case where there are “simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision” (as explained by French CJ, Crennan and Bell JJ in Taylor at [38]). However, circumstances in which the Court may read additional words into a provision or read it so as to omit certain words extend to circumstances “where words have been inadvertently used or omitted, where the statute proceeds on a mistaken assumption, where the purpose of a provision indicates that Parliament did not intend the grammatical meaning to apply, or whether words must be omitted to avoid absurdity”: Director of Public Prosecutions v Leys [2012] VSCA 304; (2012) 44 VR 1 at [58].
62 In the present case, the applicant contends that the Tribunal’s power to recommend costs was intended by the Parliament to extend to its review of an IC reviewable decision after a decision under s 54W(b), and that this class of Tribunal proceedings was inadvertently left out of s 66(1)(a). The applicant also relies upon the allegedly arbitrary effect of excluding this class of Tribunal proceedings.
63 For the reasons developed below, none of these matters establish that the Parliament intended that s 66(1)(a) extend to the review of IC reviewable decisions before the Tribunal through an exercise of the power in s 54W(b) and that words should be inserted into s 66(1)(a) (or omitted from it) so as to capture that class of cases. Rather, the Parliament has used language “which covers only one state of affairs” and the Court is being asked to construe the text of the section “in a tortured and unrealistic manner to cover another set of circumstances”: applying the language of McHugh J in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113. So understood, this is not a case where the applicant has identified the existence of a true constructional choice between different meanings of particular words in the FOI Act. Rather, with respect, the applicant asks the Court to make “an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’”: Taylor at [38] (French CJ, Crennan and Bell JJ). Similarly, the applicant’s alternative argument that the same result can be achieved by omitting the words “of the Information Commissioner on an IC review” in s 66(1)(a) would essentially ignore or remove words that were specifically inserted by the 2010 Amending Act.
64 Indeed, even if the exclusion from s 66(1)(a) of IC reviewable decisions before the Tribunal via an exercise of the power in s 54W(b) was inadvertent or an unintended consequence, this is not a case where it is open to the Court to remedy that omission. The power to do so lies exclusively with the Parliament. As explained in Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; (2017) 263 CLR 551 at [52] (Kiefel CJ, Keane, Nettle and Edelman JJ):
The Court’s ability to construe a statutory provision in a manner that departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have. It is not the Court’s function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation according to established precepts of statutory construction and into the legislative realm of amending the Act by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances before the Court.
(Citations omitted; emphasis added.)
65 Turning then to each of the considerations relied upon by the applicant, first, the applicant contends that excluding decisions under s 54W(b) from the ambit of s 66(1)(a) would frustrate the objects of the FOI Act, as identified in s 3, and, in particular, the object in s 3(4). Section 3 provides that:
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
66 As to the objects in sub-s (1), s 11 confers a legally enforceable right to obtain access to the documents of an agency, other than exempt documents, in accordance with the Act, while s 11A(3) imposes an obligation subject to the Act on an agency or Minister to whom a request has been made by a person, to give access to the documents the subject of the request. In turn, s 11C(3) imposes an obligation on the agency or the Minister who has given a person access under s 11A to a document, to publish the information save where (among other exemptions) the information is personal information about a person which it would be unreasonable to publish.
67 More specifically, the applicant submits that s 66(1), both in its original form and as amended in 2010, was intended to serve the general purposes of s 3(1) and (2) in giving the Australian community access to information held by the Government and promoting Australia’s representative democracy through increased scrutiny of government activities. In addition it serves the specific (and related) purpose in s 3(4) to facilitate and promote public access to information “promptly and at the lowest reasonable cost”. So much may be accepted. As the applicant submits, s 66 provides a mechanism by which the costs burden on an applicant may be reduced in circumstances where, for example, the decision-maker has unreasonably refused access to documents. Furthermore, as the applicant points out, this is consistent with the criterion in s 66(1)(b) requiring the person to be successful or substantially successful in their application for review, and with the requirement under s 66(2) that the Tribunal in deciding whether to make a costs recommendation must have regard (among other things) to any financial hardship which the applicant may suffer in paying costs and the reasonableness of the decision reviewed by the Tribunal. In this regard, the applicant pointed to the fact that a s 54W(b) decision turns upon whether “the interests of this Act make it desirable that the IC reviewable decision be considered by the Tribunal” and those interests, in turn, must include the objects in s 3.
68 Equally, as these matters indicate and as the applicant submits, it can be accepted that s 66(1) is a beneficial provision which should be construed “so as to give the fullest relief which the fair meaning of its language will allow”: Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384 (Isaacs J). This is so even though the section is not wholly concerned with the interests of a person in the position of the applicant but also pursues broader public interests: see e.g. s 66(2)(b) of the FOI Act.
69 However, as the respondent submits, the objects in s 3 of the FOI Act are far too broad and general to support the conclusion that the Parliament must therefore have intended that the Tribunal would have a power to make a costs recommendation in all circumstances in which an application for review under Part VII of the FOI Act was made to it, and must therefore have inadvertently failed to expressly so provide. Moreover, the fact that a legislative provision promotes general purposes of the kind identified in s 3 of the FOI Act and that it is remedial or beneficial does not mean that the objects are pursued without limitations or exclusions. Nor does it mean that the Court is at liberty to depart from the text and structure of the legislation. Rather, as Gageler J observed in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 (NSWALC) at [92]:
The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle to New South Wales legislation is mandated by the requirement of s 33 of the Interpretation Act 1987 (NSW) that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not. Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation “rarely pursues a single purpose at all costs” and that “[u]ltimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling”.
(Citations omitted.)
(I note that s 33 of the Interpretation Act 1987 (NSW) to which Gageler J refers is in substantially similar terms to s 15AA of the Acts Interpretation Act 1901 (Cth).)
70 Thus, the principle on which the applicant relies by virtue of the beneficial purpose of s 66(1) may apply where a constructional choice is open, that is, where more than one meaning is reasonably open on the text of the legislation: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1 at [29]–[30] (French CJ, Crennan, Kiefel and Keane JJ); see also Bull at 384 (Isaacs J). However, that is not, with respect, the case with regard to s 66(1).
71 Secondly, it may be accepted that s 66(1) confers a “broad discretion”, as the Tribunal found in Re Paterson at [20] (DP Hall). However, that means no more than that, where the discretion is engaged, it confers a broad discretion on the Tribunal to make a recommendation. It does not answer the question of when that discretion is engaged in the first instance.
72 Thirdly, the applicant submits that the power to make a recommendation under s 66 also provides a mechanism by which unreasonable conduct by an agency can be brought to the attention of the responsible Minister, as well as subjecting the agency to a financial impost, thereby potentially having a normative effect of reducing or deterring unreasonable decision-making by agencies. However, the applicant submits that despite the 2010 Amending Act changing the person to whom the recommendation is made from “the Attorney-General” to the “responsible Minister”, the effect of the respondent’s construction is that the “responsible Minister” will always be the Attorney-General, as the power to make a costs recommendation will be available only in relation to the review of decisions made by the Information Commissioner under s 55K.
73 That submission is based, in our view, on an erroneous construction of the FOI Act. As defined in s 4(1), the term “responsible Minister” in relation to a Department means relevantly “the Minister administering the relevant Department of State” and, in relation to a prescribed authority, “the Minister administering the part of the enactment by which, or in accordance with the provisions of which, the prescribed authority is established”. Importantly, s 4(9) further provides that:
For the purposes of the application of the definition of responsible Minister in subsection (1), the reference in that definition to the Minister administering a Department is a reference to the Minister to whom the Department is responsible in respect of the matter in respect of which this Act is being applied.
(Emphasis in original.)
74 The “matter in respect of which this Act is being applied” can sensibly be read only as a reference to the Minister responsible for the Department or agency which (relevantly) made the primary decision to refuse access to the documents. It makes no sense in the scheme of the FOI Act for the term “responsible Minister” to refer to the Minister responsible for administering the FOI Act in relation to the discharge by the Information Commissioner, as the independent statutory officer appointed under the Australian Information Commissioner Act 2010 (Cth), of the review functions under Part VII of the FOI Act. That construction would not promote the objects of the FOI Act in s 3(1). This is because the obligations correlative to the “right of access to documents” and the obligation to publish the information are imposed upon the agency or Minister to whom the request is made under s 15(1) of the FOI Act. It follows that the merits review process is secondary to, and intended to promote, the objects in s 3(1) by ensuring compliance. While s 66(2)(d) requires regard to be had to “the reasonableness of the decision reviewed by the Tribunal” which would be the Information Commissioner’s decision under s 55K, that section is not exhaustive (as is clear from its express terms) and it would therefore be open for the Tribunal to take into account the reasonableness of the agency or department’s original decision.
75 In the fourth place the applicant submits that, as the Tribunal review process in all other matters is the same irrespective of whether the Information Commissioner’s decision is made under ss 54W(b) or 55K, it would be arbitrary to distinguish between them for the purposes of the power to recommend costs under s 66. We do not accept, however, that the failure to include IC reviewable decisions the subject of a decision by the Information Commissioner under s 54W(b) is necessarily arbitrary. While the extrinsic materials do not identify a purpose for omitting these decisions from the scope of the power in s 66(1), as the respondent submits there are rational grounds which may explain that omission. As each party must bear their own costs on an IC review of an IC reviewable decision, the Parliament may rationally have intended that a similar position should follow in cases involving the direct review of an IC reviewable decision by the Tribunal following a decision under s 54W(b). In other words, the intention may have been to limit the costs recommendation power to matters considered by the Tribunal on a further tier or level of merits review following an initial review by the Information Commissioner, as opposed to reviews by the Tribunal directly from the agency concerned.
76 Fifthly, the applicant submits that under s 66(1), as originally enacted, it appeared that the Tribunal’s jurisdiction to make a recommendation was enlivened provided that a person had applied for review of a decision under the former (broad) s 55: see e.g. Cashman & Partners v Secretary, Department of Human Services & Health (1995) 61 FCR 301 at 306 (Beazley J); Brighton-Stangsins v Australian Competition and Consumer Commission [2008] AATA 773 at [23]–[24]; and Lobo and Minister for Immigration and Citizenship [2007] AATA 1038; (2007) 45 AAR 22 at [7] and [26]. However, the applicant submits that the extrinsic materials to the 2010 Amending Act do not reveal any intention to reduce the circumstances in which a costs recommendation might be made under s 66(1) as amended by that Act.
77 In support of that submission, the applicant places particular emphasis upon the statement in the Second Reading Speech that “[c]ost should not deter reasonable requests for access to information”: at p 12973. The applicant also emphasises the description in the Explanatory Memorandum (at p 40) of the amendment to s 66(1)(a) as merely “updat[ing] a reference” and being “consequential in nature” (emphasis added). Given this and statements in the ALRC Report on which the 2009 Bill was partly drawn as to the impact of prohibitive charges on citizen’s involvement in government and the desirability of employing the power in s 66(1) more widely (at [14.2] and [14.28]), the applicant submits that:
the clear upshot of these extrinsic materials is that the 2009 Bill was intended to promote the ability of applicant [sic] to obtain documents at the lowest possible cost. Instead, the primary judgment and ACF interpret amendments made by that Bill as restricting that ability.
(AAS [20]; emphasis in the original.)
78 However, it is apparent from the Second Reading Speech that s 66(1) was not the only (or, indeed, necessarily the primary) means by which the 2010 Amending Act and related amendments sought to ensure that costs did not deter meritorious requests. The passage on which the applicant relies in the Second Reading Speech did not refer to the amended s 66(1) but was made in the context of explaining that the Bill, together with proposed amendments to regulations, “removes all application fees, including for internal review” and further that “[n]o costs will apply for access to a person’s own information”: p 12973.
79 More fundamentally, as the respondent submits, “such general references [in the extrinsic materials] are an uncertain basis to discern the purpose of s 66(1)”: respondent’s outline of submissions (RS) [16].
80 In short, the extrinsic materials fall well short of providing a basis on which it could be said with any confidence that the Parliament intended that s 66(1)(a) should extend to an IC reviewable decision the subject of a decision under s 54W(b), but inadvertently failed to achieve that result. Nor can it be said that “[c]arving out decisions under s 54W(b) from the ambit of s 66(1)(a) would only frustrate the FOI Act’s purpose”: AS [13]. Not only does the submission overlook the other measures by which it was intended to address the costs of accessing information, but it remains the case that the discretion in s 66(1) is available in cases where the person successfully applied to the Tribunal for review of a decision of the Information Commissioner on an IC review.
81 Finally, the respondent submits with some force that that the applicant’s submission fell into the error of making assumptions as to the purpose of the amendments to s 66(1) based on general statements in the extrinsic materials and s 3 of the FOI Act and “work[ed] back from there in discerning the meaning of s 66(1)”: RS [16]. In this regard, after referring to the danger of treating the search for statutory purpose as a search for the subjective intentions of the legislators, French CJ and Hayne J in Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 held at [26] that:
A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
“Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.”
… And as the plurality said in Australian Education Union v Department of Education and Children’s Services:
“In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.”
(Citations omitted; emphasis in original.)
82 As these principles highlight, to so reason is to stray from the foundational principle that “[t]he purpose of a statue resides in its text and structure” (Lloyd’s Underwriters at [25] (French CJ and Hayne JJ)), and to invite the Court impermissibly to enter into the arena of judicial legislation.
83 In the event that the application was dismissed, the applicant sought an order that there be no order as to costs. In support of an order to this effect, the applicant submitted that the following three factors, based on the decision in Australian Conservation Foundation Incorporated v Minister for the Environment (No 2) [2016] FCA 1095 at [11] (Griffiths J), rendered this an appropriate case for such an order to be made:
The first factor is that resolution of the proper construction of s 66(1) is in the public interest, given the importance of the FOI Act to Australia’s representative democracy.
The second factor is the nature of the application, being for the applicant to recover his costs as opposed seeking to make a private gain; and
The third factor is that the applicant’s application is arguable, and the litigation is likely to resolve a significant issue about important legislation, including its administration by the Commissioner.
(Applicant’s outline of submissions in reply at [18]–[21]; cross-references and emphasis omitted.)
84 In Australian Conservation Foundation Incorporated v Minister for the Environment (No 2) [2016] FCA 1095 at [11], Griffiths J summarised some of the relevant principles which guide the exercise of the Court’s broad discretion regarding costs in the context of a challenge to a decision in an environmental law context, namely:
• the fact that proceedings may be characterised as ‘public interest litigation’ may be a factor which contributes to a conclusion of ‘special circumstances’ to displace the normal rule that costs follow the event but, of itself, it is not sufficient to justify a departure;
• the fact that the unsuccessful applicant brought the litigation to ensure compliance with the law and not for the purpose of private gain is a relevant consideration;
• also relevant is the fact that a significant number of members of the public shared the unsuccessful applicant’s concerns, giving rise to a ‘public interest’ in the outcome of the proceeding;
• also relevant is the fact that the applicant’s challenge was arguable and the litigation resolved significant issues about important legislation; and
• different weight may be given to relevant considerations relating to costs on an appeal as opposed to a proceeding at first instance, in the sense that clarification of the law and rule of law considerations may not, depending on the circumstances, have the same weight on an appeal.
85 Applying those principles by analogy, in our view, the respondent correctly submits that no adequate basis has been established as to why costs should not follow the event. First, the fact that the present case gives rise to an important and arguable question of statutory construction in the context of legislation designed to promote representative democracy is not of itself sufficient to displace the ordinary rule as to costs. Nor is it evident that this is a case where a significant number of members of the public share the applicant’s concerns. Secondly, as the respondent contends, ultimately the applicant pursued these proceedings for the benefit of his own interests, being his interest in a costs recommendation being made by the Tribunal under s 66(1)(a). Thirdly, as the respondent also submits, the question of costs in the Federal Court is not informed by the conduct of the Department in the Tribunal proceedings.
86 Nonetheless, it is understandable that the applicant may feel aggrieved in being required to pay the respondent’s on this application in circumstances where the Tribunal would have made a recommendation regarding costs under s 66 of the FOI Act if it had the power to do so, given the seriousness of its findings as to the Department’s approach to its obligations under the FOI Act in this case. In those circumstances, the Department may well consider that this is not an appropriate case in which it would seek to enforce the Court’s order as to costs in its favour.
87 For these reasons, the appeal under s 44(1) of the AAT Act must be dismissed and costs follow the event. No error has been established in the Tribunal’s decision that it lacked power to make a recommendation as to costs under s 66(1) of the FOI Act.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perry and Horan. |
Associate:
REASONS FOR JUDGMENT
SARAH C DERRINGTON J:
INTRODUCTION
88 The short, but important, matter raised by this appeal is the proper construction of s 66(1) of the Freedom of Information Act 1982 (Cth) (FOI Act). In particular, the question is whether the Administrative Appeals Tribunal was correct to hold that it did not have power to make a recommendation to the responsible Minister that the costs of the appellant in relation to the proceedings before the Tribunal, being Re VKJY and Secretary, Department of Home Affairs (Freedom of Information) [2023] AATA 2551, be paid by the Commonwealth, in circumstances where the Information Commissioner has decided not to review the decision of the Department of Home Affairs (the respondent) herself, but rather has, under s 54W(b) of the FOI Act, referred the review directly to the Tribunal pursuant to s 57A(1)(b): VKJY at [26] (AAT (Costs).
89 The Tribunal said that it would have made such a recommendation if it were within its power to do so: AAT (Costs) at [1]. There was no substantive consideration of that issue by the Tribunal, and nothing raised by the appeal requires this Court to consider that observation.
90 The background circumstances can be stated shortly. On 15 February 2021, the appellant requested certain information from the Department. On 15 March 2021, the Department responded to that request. It released some, but not all, of the information requested. It was, therefore, an access refusal decision as defined in s 53A of the FOI Act. On 27 March 2021, the appellant sought IC review of the Department’s access refusal decision by the Information Commissioner under s 54L of the FOI Act. On 20 December 2021, a delegate of the Information Commissioner informed the appellant that the Information Commissioner had decided not to undertake an IC review under s 54W(b) of the FOI Act, because she was satisfied that the interests of the administration of the FOI Act make it desirable that the IC reviewable decision be considered by the Tribunal.
91 For the reasons that follow, the Tribunal’s decision was correct.
THE STATUTORY FRAMEWORK IN CONTEXT
92 It is necessary to step through the relevant statutory provisions in some detail to understand the competing contentions as to the proper construction of s 66(1). It is also necessary to understand that there are multiple levels of review provided for by the FOI Act. Broadly, they include internal review by the relevant Department, review by the Information Commissioner, review by the Tribunal, and review, or appeal (on a question of law), by the Federal Court.
93 Section 66(1) of the FOI Act is in Pt VIIA of the FOI Act, which is headed ‘Review by the Tribunal’. It provides:
66 Tribunal may make recommendation that costs be available in certain circumstances
(1) Where:
(a) a person applies, under section 57A, to the Tribunal for review of a decision of the Information Commissioner on an IC review; and
(b) the person is successful, or substantially successful, in his or her application for review;
the Tribunal may, in its discretion, recommend to the responsible Minister that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.
(Emphasis added.)
94 The current wording of s 66(1) is consequent upon amendments made to the FOI Act by the Freedom of Information Amendment (Reform) Bill 2009 (Cth). Prior to its amendment, s 66(1)(a) provided:
(1) Where:
(a) a person makes application to the Tribunal under section 55 for the review of a decision constituting the action to which the complaint relates; and
(b) the person is successful, or substantially successful, in his application for review;
the Tribunal may, in its discretion, recommend to the Attorney General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.
95 Section 55 was repealed by those same amendments, consequent upon the insertion of the new review provisions enacted in Pts VI, VII and VIIA of the FOI Act.
96 Pt VI is concerned with the ‘Internal Review of Decisions’, Pt VII is concerned with ‘Review by the Information Commissioner’, and Pt VIIA provides for ‘Review by the Tribunal’. Together, these Pts prescribe the various levels of review available under the applicable statutory scheme. In the context of this proceeding, it is appropriate to summarise these avenues of review.
97 First, a person who is subject to an access refusal decision of an agency, being a “department of the Australian Public Service that corresponds to a Department of State of the Commonwealth” (s 4), has the right to apply for an internal review by that agency (s 54) or directly to the Office of the Information Commissioner for an IC review (ss 54L(1) and (2)(a)) of an IC reviewable decision, being a decision covered, relevantly, by 54L(2): s 54J.
98 In this case, the appellant applied directly pursuant to s 54L, which provides:
54L IC reviewable decisions—access refusal decisions
(1) An application may be made to the Information Commissioner for a review of a decision covered by subsection (2).
(2) This subsection covers the following decisions:
(a) an access refusal decision;
(b) a decision made by an agency on internal review of an access refusal decision (see section 54C);
(c) a decision refusing to allow a further period for making an application for internal review of an access refusal decision (under section 54B).
Note 1: An application for the review of an access refusal decision made for the purposes of paragraph (a) may be made regardless of whether the decision was the subject of internal review.
Note 2: If no decision is made on internal review within 30 days, a decision to affirm the original access refusal decision is taken to have been made (see section 54D).
(3) The IC review application may be made by, or on behalf of, the person who made the request to which the decision relates.
(Emphasis added.)
99 Secondly, a person who remains aggrieved after an internal review may apply to the Office of the Information Commissioner for an IC review: ss 54L(1) and (2)(b).
100 The Information Commissioner can then either decide to:
(1) not undertake an IC review (s 54W); or
(2) undertake an IC review.
101 Section 54W was introduced by the Reform Bill 2009. It provides:
54W 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) the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal; or
(c) the IC review applicant fails to comply with a direction of the Information Commissioner.
Note 1: The Information Commissioner may make a decision under this section to review only part of an IC reviewable decision (see section 54U).
Note 2: If the Information Commissioner makes a decision under paragraph (b), an application for review may be made to the Tribunal for review of the IC reviewable decision (see section 57A).
Note 3: Division 1 of Part VIII sets out the circumstances in which a vexatious applicant declaration may be made in relation to a person. A declaration may permit the Information Commissioner to refuse to consider an IC review application if the person makes the IC review application under this section without the written permission of the Information Commissioner.
(Emphasis added.)
102 Thirdly, if the Information Commissioner undertakes the IC review, a person who is aggrieved by the decision of the Information Commissioner on an IC review may:
(1) appeal to the Federal Court on a question of law (s 56); or
(2) apply to the Tribunal for a review of the decision of the Information Commissioner (s 57A).
103 If the Information Commissioner decides not to undertake the IC review, then the third level of review is a review by the Tribunal. In the present case, this was the avenue of review invoked by the appellant pursuant to s 57A(1), introduced by the Reform Bill 2009, and which provides:
57A Tribunal reviewable decisions—which decisions are reviewable?
(1) An application may be made to the Tribunal for review of the following decisions:
(a) a decision of the Information Commissioner under section 55K on an IC review;
(b) if the Information Commissioner makes a decision under paragraph 54W(b) (matters inappropriate for IC review)—the IC reviewable decision in relation to which the Information Commissioner makes the decision.
Note 1: An application for the review of a decision may be made by a person whose interests are affected by the decision (see section 27 of the Administrative Appeals Tribunal Act 1975).
Note 2: Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets out the time within which the application for review must be made.
(Emphasis added.)
104 In this proceeding, the IC reviewable decision referred to in s 57A(1)(b) is the decision made by the Department. That decision was the subject of the Tribunal’s substantive reasons in VKYJ and Secretary, Department of Home Affairs (Freedom of Information) [2022] AATA 4306, in which the appellant succeeded on the merits.
105 The question of construction for this Court is whether s 66(1) precludes the Tribunal from making a costs recommendation in circumstances where the proceedings have come before the Tribunal pursuant to s 57A(1)(b) of the FOI Act, following a decision pursuant to s 54W(b) by the Information Commission not to undertake an IC review.
THE COMPETING CONSTRUCTIONS
106 The principles applicable to questions of statutory construction, which require consideration of the text, content, and purpose, are well established and not in dispute: see, in particular, s 15AA of the Acts Interpretation Act 1901 (Cth); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]; Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25]-[26]; SZTAL v Minister for Immigrations and Border Protection [2017] HCA 34; 262 CLR 362 at [14]; Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 192; 282 FCR 1 (The Bay Street Appeal).
107 In The Bay Street Appeal, the Chief Justice expressed the approach in the following way, at [4]:
The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provisions are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material.
108 The appellant contends that the conclusion arrived at by the Tribunal was wrong – first, because the meaning of s 66(1) is neither plain nor clear; secondly, because – having reached its primary conclusion – it failed to consider extrinsic materials; thirdly, because it failed to give appropriate weight to context and purpose in construing s 66(1) of the FOI Act; fourthly, by reasoning that if there was a deficiency in the wording of s 66(1), it was a matter for legislative repair, rather than for the Court to read in words said to have been omitted; and finally, in relying on Re Littlejohn and Department of Social Security (1989) 17 ALR 482 at 486 and Australian Conservation Foundation Incorporated and Minister for the Environment (Freedom of Information) (ACF) [2022] AATA 307.
109 The gravamen of the appellant’s argument is that the effect of the primary decision, and the decision in ACF, is to adopt a construction that is contrary to the express purpose of the FOI Act as a whole, in that it deprives a group of applicants (being those whose application for review is referred directly to the Tribunal) of the possibility of a costs recommendation in circumstances where, prior to the legislative amendments to the FOI Act in 2009, that group had the possibility of a recommendation by the Tribunal to the Attorney General that their costs be paid.
110 The first way in which the appellant put his case was to say that there is a way of construing s 66(1)(a) whereby the words, as written, mean what the appellant says they mean: viz, that “a review of a decision of the Information Commissioner on an IC review” includes a decision of the Information Commissioner to send the application directly to the Tribunal. The appellant submitted that the word “of”, as used in the subsection, is broader than “by”. Consequently, one is not concerned with whether there was a decision by the Information Commissioner on an IC review, but rather, with whether the decision has the character of a decision of the Information Commissioner which has something to do with the IC review, ie; on the IC review – being either a decision to conduct the review herself, or a decision to send the review to the Tribunal.
111 In support of this construction, the appellant pointed to the choice of the preposition “on” in s 66(1), as compared with “after” as used in s 55K: “[a]fter undertaking an IC review, the Information Commission must make a decision in writing…”. The appellant submitted that an IC review is a sequence of steps available to be taken by the Information Commissioner when proceedings are brought before her under Pt VII of the FOI Act. Consequently, it is argued, once the process of an IC review has commenced, the Information Commissioner may make decisions along the way “on that review”.
112 This construction, albeit creative, cannot survive the other textual indicators of its meaning contained within Pt VII. In particular, an “IC review” is defined in s 54G as “a review of an IC reviewable decision undertaken by the Information Commissioner under … [Pt VII]”. In turn, an “IC reviewable decision” is defined, relevantly in this case, in s 54K(a) to be “a decision covered by subsection 54L(2) (access refusal decisions)”. Thus, a decision “on an IC review” as used in s 66(1)(b) must be concerned with a decision covered by s 54L(2). A decision of the Information Commissioner made pursuant to s 54W(b) is simply not an “IC reviewable decision” and, therefore, cannot be a decision “on an IC Review”.
113 Further, a consideration of s 55K as a whole does not assist the appellant with his preferred construction of s 66(1). It may be accepted that the use of the preposition, “after”, in s 55K(1) supports the appellant’s submission that Pt VII establishes a process for conducting an IC review. It is, however, equally clear from s 55K that the statute has adopted the phrase “on an IC review” to mean a decision made in respect of an IC reviewable decision by the Information Commissioner.
114 Section 55K provides:
(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.
By this subsection, the Information Commissioner must make a decision in writing that affirms, varies, or sets aside the IC reviewable decision.
115 By the terms of subsection (2), it is clear that a decision under either subsection (1)(a), (b), or (c) is a decision on an IC review. Such a decision can only be referable to an IC reviewable decision – not a decision under 54W(b). It provides:
(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.
116 Similarly, were the appellant’s construction to be accepted, subsection (3) would be a nonsense. A decision of the Information Commissioner under s 54W(b) not to undertake a review herself could not in any way have the same effect as a decision of the agency that made the IC reviewable decision. Subsection (3) provides:
(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.
117 It is also instructive that s 55K(8) requires the Information Commissioner to publish a decision on an IC review to members of the public generally. By contrast, no such obligation is imposed in relation to a decision under s 54W(b). This is a strong indication that the Parliament intended different consequences as between a decision on an IC review made pursuant to s 55K, and a decision made pursuant to s 54W(b) not to undertake an IC review.
118 I do not accept the appellant’s submission that the words in s 66(1)(a) can be read to include a decision of the Information Commissioner made under s 54W(b).
119 For these reasons, Ground 1 cannot succeed. The Tribunal was correct to find that the meaning of s 66(1) was plain and clear. Nor can the Tribunal be criticised for its reference to the passage in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [33], to the effect that it is erroneous to look at extrinsic materials before exhausting the ordinary rules of statutory construction. The Tribunal ought to be taken to have said no more than that the first obligation in construing a statute is to “consider [its] text … to ascertain its meaning”: Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; 271 CLR 495 at [66], quoting Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33; 244 CLR 508 at [50]. By default, Grounds 2 and 3, therefore, also fail.
120 The appellant’s second contention, relying on Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 301, is – having regard to context and purpose – that the Court should read in the underlined words below to s 66(1)(a), as follows:
(a) A person applies, under s 57A, to the Tribunal for review of a decision of the Information Commissioner on an IC review or an IC reviewable decision after a decision under paragraph 54W(b);
121 The appellant pointed to a number of contextual matters said to demonstrate that the result that s 66(1) does not extend to IC reviewable decisions encompassed by s 57A(1)(b) would be an absurdity clearly not intended by the Parliament. One such matter was the sheer arbitrariness of the power to recommend costs based on jurisdiction, in circumstances where the question of whether the matter comes to the Tribunal through s 54W(b) or s 55K is strictly irrelevant to all other matters of substance and procedure before the Tribunal.
122 A second matter raised was that, prior to the 2009 legislative amendments to the FOI Act, decisions by agencies were within s 66. It is “obvious” that they were left out of the amending provisions. Support for this submission was said to be found in the Explanatory Memorandum to the Reform Bill 2009 (EM). In particular, items 45 and 46, at p 39, provided:
Item 45 – paragraph 66(1)(a)
This item updates a reference and is consequential in nature.
Item 46 – subsections 66(1) and (3)
Existing section 66 of the FOI Act permits the AAT to make a recommendation to the Attorney-General that the costs of an applicant be paid by the Commonwealth. To reflect changes that have occurred in the provision of Commonwealth legal services, the effect of this proposed amendment is that the AAT may make recommendation to the Minister responsible for an agency instead of to the Attorney-General.
123 To the extent that item 45 is said to “update a reference” and be “consequential in nature”, so much can be accepted. The amended s 66(1) needed to include the reference to the “decision of the Information Commissioner on an IC review”, which became the relevant decision for the purposes of s 66(1). It might just as logically be assumed that decisions by agencies have been subsumed within this amendment, as to assume that they have been accidently omitted. Similarly, the replacement, by item 46, of the Attorney-General with the “responsible Minister”, being the Minister administering the Department that made, in this case, the access refusal decision (see s 4(9)) does not lead to the conclusion that there has been any accidental omission of a circumstance in which a cost recommendation might be made by the Tribunal.
124 In Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514 at 546, Gaudron J, with the substance of whose reasons Mason CJ, Wilson and Dawson JJ agreed, said at 517:
It is a well-established rule of construction that absurdity and inconvenience are to be avoided. As was stated by Brett M.R. in Reg. v. The Overseers of the Parish of Tonbridge (54):
“… if the inconvenience is not only great, but what I may call an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if you read it in a manner in which it is capable, though not its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical meaning.”
125 Mason CJ, Wilson and Dawson JJ added at 518:
The words of a Minister must not be substituted for the text of the law … It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.
(Emphasis added.)
126 As submitted by the appellant, the purpose of the FOI Act can be discerned from its Objects.
3 Objects—general
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
(Emphasis added.)
127 The appellant pointed particularly to the words in bold above in support of the submission that s 66(1)(a) exists to ensure that deserving applicants should not bear the cost of review by the Tribunal, when successful. The exercise of the discretion to make a recommendation under s 66(1)(a) is guided by the factors of which account must be taken, including financial hardship (s 66(2)(a)), substantial success (s 66(2)(b)), and the reasonableness of the decision under review (s 66(2)(d)). The appellant contended that carving out decisions under s 54W(b) would frustrate the fourth object of the FOI Act. This was said to be particularly so when decisions under that subsection are entirely premised on “the interests of the administration of this Act [making] it desirable that the IC reviewable decision be considered by the Tribunal”.
128 It was also contended that a practical problem arose from the construction adopted by the Tribunal. That problem is said to be the possibility that one agent of the Commonwealth, the Information Commissioner, could, by operation of s 54W(b), deprive an applicant of the possibility of obtaining their costs from the Commonwealth.
129 As I have already observed, s 66(1) was amended by the Reform Bill 2009. The appellant drew the Court’s attention in particular to the statement on p 1 of the EM:
The primary purpose of the Bill is … to promote a pro-disclosure culture across government and to build a stronger foundation for more openness in government.
130 The EM explained that the reforms implemented a number of the recommendations of the Australian Law Reform Commission (ALRC) by its report, Open government: a review of the federal Freedom of Information Act 1982 (ALRC 77, 31 December 1995). The appellant referred to [14.2] of ALRC 77, where the ALRC said:
The costs regime should not be inconsistent with the objects of the Act. It is counterproductive for the Act to encourage involvement in government but effectively disqualify citizens from participating by imposing prohibitive charges.
131 Specifically in relation to the costs of review by the Tribunal, the ALRC observed in ALRC 77, at [14.27]:
The Appellant may also incur other costs in seeking AAT review, for example, the cost of legal representation. Given that agencies are usually represented by counsel, Appellants can feel intimidated into seeking legal representation, at considerable expense. While agencies incur costs in appearing before the AAT, it is within their power to minimise those costs as much as possible. The fact that FOI Appellants will incur the costs of an AAT hearing highlights the importance of AAT procedures being as flexible and efficient as possible. Proceedings before the AAT should be conducted in a way that does not make appellants feel the need to be legally represented. Agencies should not spend public resources on unnecessary legal representation.
132 Ultimately, the ALRC recommended (recommendation 95) that:
The FOI Commissioner should publicise the existence of s 66 of the FOI Act which empowers the AAT to recommend to the Attorney-General that an Appellant’s costs be paid by the Commonwealth where he or she is successful or substantially successful.
133 This recommendation cannot be construed as more than an exhortation to increase awareness of the power in s 66(1) of the FOI Act and, in any event, can have no impact on the construction of the text as subsequently enacted.
134 The appellant also referred to the Second Reading Speech (Commonwealth, Parliamentary Debates, House of Representatives, 26 November 2009, p 12971) where, at p 12973, the Minister said:
One aspect of the current law which has restricted the public’s access to information is cost. Cost should not deter reasonable request for access to information. The bill, together with amendments proposed to regulations, removes all application fees, including for internal review.
135 The appellant contended that the purpose of the amendment was patently clear, and nothing in the EM suggested that the power to award costs under s 66(1) should be narrowed. Equally, however, there is nothing in the EM to support the proposition that there was a clear intention to create a power to recommend an award of costs in circumstances where there has been only one substantive review, being that by the Tribunal, and not two. Contrary to the appellant’s submission, the context of the statutory scheme and the legislative history does not support a departure from the literal meaning of the words used: Director of Public Prosecutions v Leys [2012] VSCA 304; 44 VR 1 at [93]. As the Full Court said in Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2022] FCAFC 171 (The “BBC Nile”) at [103]:
however regrettable or absurd the apparent overlooking of [a consequence] the will of the Parliament as expressed in [the] law does not allow the Court to stretch that legislative expression far beyond the text of the Act.
136 As was held to be the case in The “BBC Nile”, where the plaintiff sought to fill a legislative gap that appeared to have been disclosed in s 11(2) of the Carriage of Goods by Sea Act 1991 (Cth), the insertion in s 66(1) proposed by the appellant is “too big, or too much at variance with the language in fact used by the legislature”: Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 at [38], quoting Western Bank Ltd v Schindler [1977] Ch 1 at 18 per Scarman LJ.
137 The alleged anomaly having now been raised in this matter, should the Parliament wish to amend s 66(1) in the form for which the appellant contends, that is a matter for the Parliament, not the Court. For these reasons, Ground 4 cannot succeed. No error has been shown in the Tribunal’s reference to the decision of Thawley J in ACF, nor to its reference to Re Littlejohn. The latter reference was no more than an orthodox statement of the approach taken by the Tribunal to determining questions of law, where tribunals differently constituted have expressed different opinions. In the present case, it is plain that the Tribunal arrived at its own conclusion as to the proper construction of s 66(1). Ground 5 is also without merit.
DISPOSITION
138 For the reasons given, the application should be dismissed.
139 The appellant contended that, in the event he was to be unsuccessful, the Court should exercise its discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) to order that each party bear its own costs. Three reasons were given in support of that contention. First, the proper construction of s 66(1) is a matter of public importance, considering the role and import of the FOI Act in Australia’s representative democracy. Secondly, it was argued that the nature of the application, being one to recover the appellant’s costs, was – while not strictly defensive – nonetheless different from an application to make a private gain. Thirdly, it was said that the application was arguable and likely to resolve a significant mischief about the legislation, including the manner of its administration by the Information Commissioner.
140 There is no compelling reason to depart from the usual order as to costs. No error having been established on the part of the Tribunal, there was a reasonable basis for the respondent to oppose the application. Having succeeded, the respondent is entitled to costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington. |
Associate:
Dated: 28 June 2024
