Bienstein v Attorney General [2009] FCA 1501

FEDERAL COURT OF AUSTRALIA

FREEDOM OF INFORMATION – request for access to documents – failure to make decision within 30 days – deemed refusal to grant access – whether Administrative Appeals Tribunal had power to order that a decision be made

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – powers – deemed refusal to grant access to documents – whether Tribunal had power to order that decision be made

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – procedural fairness – bias – Tribunal not making orders or giving procedural directions sought by applicant – whether reasonable apprehension of bias in protecting ministers from freedom of information requests

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – appeal to Court – questions of law – nature of questions of law on which appeal can be brought

Administrative Appeals Tribunal Act 1975 (Cth) ss 25(5), 26, 33(1)(a), 37, 42D, 44(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 7, 11(3), 11(4)

Freedom of Information Act 1982 (Cth) ss 11, 15, 16, 18, 24A, 26, 30A, 54, 55(1), 56(1), 56(5), 56(6), 58(1), 66

Re: Bienstein and Attorney-General (Cth) [2004] AATA 896 cited

Re: Bienstein and Minister for Justice and Customs [2004] AATA 895 cited

Bienstein v Attorney-General [2007] FCA 1174 (2007) 162 FCR 405 cited

Bienstein v Attorney-General (Commonwealth of Australia) [2008] AATA 7 cited

Bienstein v Attorney-General (Commonwealth of Australia) [2008] AATA 330 cited

Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301 applied

Director-General of Social Services v Chaney (1980) 47 FLR 80 cited

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 cited

Hounslow v Department of Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Sweeney J, 20 December 1985) cited

HELEN BIENSTEIN v ATTORNEY GENERAL and JUSTICE MINISTER

VID 563 of 2008

HELEN BIENSTEIN v ATTORNEY-GENERAL (CTH) and MINISTER FOR HOME AFFAIRS (CTH)

VID 1 of 2009

GRAY J

15 DECEMBER 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
general division	VID 563 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MS STEPHANIE FORGIE, DEPUTY PRESIDENT

BETWEEN:

HELEN BIENSTEIN

Applicant

AND:

ATTORNEY GENERAL

First Respondent

JUSTICE MINISTER

Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	15 DECEMBER 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The applicant pay the respondents’ costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
general division	VID 1 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MS STEPHANIE FORGIE, DEPUTY PRESIDENT

BETWEEN:

HELEN BIENSTEIN

Applicant

AND:

ATTORNEY-GENERAL (CTH)

First Respondent

MINISTER FOR HOME AFFAIRS (CTH)

Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	15 DECEMBER 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondents’ costs of the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 563 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MS STEPHANIE FORGIE, DEPUTY PRESIDENT

BETWEEN:

HELEN BIENSTEIN

Applicant

AND:

ATTORNEY GENERAL

First Respondent

JUSTICE MINISTER

Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
general division	VID 1 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MS STEPHANIE FORGIE, DEPUTY PRESIDENT

BETWEEN:

HELEN BIENSTEIN

Applicant

AND:

ATTORNEY-GENERAL (CTH)

First Respondent

MINISTER FOR HOME AFFAIRS (CTH)

Second Respondent

JUDGE:	GRAY J
DATE:	15 DECEMBER 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The nature and history of the proceeding

1 The principal question raised in this appeal concerns the powers of the Administrative Appeals Tribunal (“the Tribunal”) when dealing with a review of a deemed decision to refuse access to documents, pursuant to the Freedom of Information Act 1982 (Cth) (“the FOI Act”). In particular, the question is whether the Tribunal has power to compel the recipient of a request for access to documents to make an actual decision in response to the request.

2 In 2003, the applicant, Ms Bienstein, made a separate request to each of the Attorney-General for the Commonwealth (“the Attorney-General”) and the Minister for Justice and Customs (now the Minister for Home Affairs) (in each case, “the Minister”) for access to documents. The Attorney-General and the Minister each purported to transfer the request to the Attorney-General’s Department, pursuant to s 16 of the FOI Act. Ms Bienstein applied to the Tribunal for review of a deemed decision, pursuant to ss 55 and 56 of the FOI Act, on the basis that, at the expiration of the requisite period from the making of each request, there had not been a decision. In each case, the Tribunal determined that it did not have jurisdiction to deal with the application for review. See Re: Bienstein and Attorney-General (Cth) [2004] AATA 896 and Re: Bienstein and Minister for Justice and Customs [2004] AATA 895. The Tribunal concluded that each request for access to documents had been transferred validly to the Attorney-General’s Department. Ms Bienstein appealed to this Court from those two decisions. She was successful on appeal. The decision of the Tribunal on each of the applications for review was set aside and each of the cases was remitted to the Tribunal to be heard and decided again. See Bienstein v Attorney-General [2007] FCA 1174 (2007) 162 FCR 405.

3 On 31 October 2007, the Tribunal gave directions, requiring the Attorney-General and the Minister to file and serve a summary of all the evidence detailing the searches conducted and any other documents on which they intended to rely at the hearing. The Tribunal scheduled a directions hearing for 26 November 2007. By letter dated 12 November 2007, Ms Bienstein submitted that the directions were inconsistent with the law. She submitted that the Tribunal should have directed that “a decision be furnished and a section 37 statement be filed and served in support of that decision.” Ms Bienstein sought amendment of the directions accordingly. There was argument about this issue at a telephone directions hearing on 26 November 2007. Following that, on 4 January 2008, the Tribunal published a decision expressed in the following terms:

The Tribunal has decided that:

(1) it has no power to direct the Attorney-General or the Justice Minister to make a decision;

(2) it has jurisdiction to review the decisions deemed to have been made by the Attorney-General and the Justice Minister i.e. decisions to refuse Mrs Bienstein’s request for access to documents;

(3) the Attorney-General and Justice Minister have a duty to comply with s 37(1) of the AAT Act and, under that section, the time within which they must do so to is extended until 1 February 2008; and

(4) it is under no obligation to order that the directions hearing be recorded.

At the same time, the Tribunal gave written reasons for that decision. See Bienstein v Attorney-General (Commonwealth of Australia) [2008] AATA 7. On 4 February 2008, Ms Bienstein filed in this Court a purported appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) in respect of this decision of the Tribunal. That proceeding became number VID 65 of 2008. Ms Bienstein subsequently discontinued it, probably as a result of becoming aware of authorities such as Director-General of Social Services v Chaney (1980) 47 FLR 80, in which it has been held that an interlocutory ruling or decision by the Tribunal is not necessarily a “decision” from which an appeal lies pursuant to s 44 of the AAT Act.

4 The Tribunal proceeded to deal with the two applications for review. In the course of managing them, the Tribunal made a further interlocutory decision on 23 April 2008, as to the directions to be given, declining to accept submissions of Ms Bienstein, who sought detailed directions to each respondent as to the nature of the searches that each should undertake. See Bienstein v Attorney-General (Commonwealth of Australia) [2008] AATA 330. On 5 May and 6 June 2008, the Tribunal conducted a hearing. On 13 June 2008, the Tribunal published its decision, affirming the decisions deemed to have been made by the Attorney-General and the Minister to refuse access to documents as requested by Ms Bienstein. The Tribunal found that each of the Attorney-General and the Minister had taken all reasonable steps to find documents meeting the terms of Ms Bienstein’s requests. The Tribunal was satisfied that no documents, other than those that had already been found, existed.

5 On 16 July 2008, Ms Bienstein filed a notice of appeal in this Court in respect of that decision. That appeal became proceeding number VID 563 of 2008.

6 On 2 January 2009, Ms Bienstein filed an application for an order of review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), which became proceeding number VID 1 of 2009. Originally, Ms Bienstein named as respondents to that proceeding Malcolm Bennett, the FOI Director of the Attorney-General’s Department, as well as the Attorney-General and the Minister. By consent on 3 February 2009, it was ordered that Mr Bennett be removed as a party to the proceeding. The object of the proceeding was to obtain an order that each of the Attorney-General and the Minister make a decision on Ms Bienstein’s request for documents and provide Ms Bienstein with notice of the decision. On 28 January 2009, the Attorney-General and the Minister filed a notice of objection to the competency of that proceeding, contending that the application was filed outside the time limits set out in s 11(3) and (4) of the ADJR Act, and that the Attorney-General and the Minister were not under any duty, and did not have any power, to make decisions under the FOI Act, and consequently there was no failure to make decisions they had a duty to make, within s 7 of the ADJR Act.

7 Proceedings numbers VID 563 of 2008 and VID 1 of 2009 were heard together.

The legislation

8 Section 11 of the FOI Act provides:

(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

(2) Subject to this Act, a person’s right of access is not affected by:

(a) any reasons the person gives for seeking access; or

(b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.

9 Section 15 provides for the manner in which a request for access to documents is to be made. Section 18 provides:

(1) Subject to this Act, where:

(a) a request is made in accordance with the requirements of subsection 15(2) by a person to an agency or Minister for access to a document of the agency or an official document of the Minister; and

(b) any charge that, under the regulations, is required to be paid before access is granted has been paid;

the person shall be given access to the document in accordance with this Act.

(2) An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document.

10 Section 24A provides:

An agency or Minister may refuse a request for access to a document if:

(a) all reasonable steps have been taken to find the document; and

(b) the agency or Minister is satisfied that the document:

(i) is in the agency’s or Minister’s possession but cannot be found; or

(ii) does not exist.

11 Section 30A of the FOI Act makes provision for remission of fees normally applicable to requests for access to documents. Section 30A(1A) provides for a maximum period of 30 days for notification to an applicant of a decision whether to remit an application fee in whole or in part. Section 30A(1B) provides:

If:

(a) that period of 30 days has ended; and

(b) the applicant has not received notice of a decision on the request;

the agency or the Minister, as the case requires, is taken, for all purposes of this Act, to have made, on the last day of the period, a decision to the effect that no part of the application fee is to be remitted.

12 The relevant provisions of s 55 of the FOI Act are:

(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:

(a) a decision refusing to grant access to a document in accordance with a request...

(4) Notwithstanding section 29 of the Administrative Appeals Tribunal Act 1975, the period within which (subject to any extension granted by the Tribunal) an application under subsection (1) of this section is to be made in respect of a decision is:

...

(b) where the decision is a decision that is to be deemed by subsection 56(1) or (3) to have been made—the period commencing on the day on which the decision is to be deemed to have been made and ending on the sixtieth day after that day

13 Section 56(1) of the FOI Act provides:

(1) Subject to this section, where:

(a) a request has been made to an agency or Minister in accordance with section 15; and

(b) the period of 30 days, in relation to the request, mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and

(c) notice of a decision on the request has not been received by the applicant;

the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document.

14 Section 56(6) provides:

Before dealing further with an application made by virtue of this section, the Tribunal may, on the application of the agency or Minister concerned, allow further time to the agency or Minister to deal with the request.

15 Section 58(1) provides:

Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.

16 Section 25(5) of the AAT Act provides:

For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.

17 Section 26 of the AAT Act provides:

(1) Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:

(a) the enactment that authorised the making of the application expressly permits the decision to be altered; or

(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration.

(2) A reference in subsection (1) to the alteration of a decision is a reference to:

(a) the variation of a decision; or

(b) the setting aside of a decision; or

(c) the setting aside of a decision and the making of a decision in substitution for the decision set aside.

18 Section 37(1) of the AAT Act provides:

Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:

(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

(b) every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.

19 Section 42D of the AAT Act provides:

(1) At any stage of a proceeding for review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.

Powers of person to whom a decision is remitted

(2) If a decision is so remitted to a person, the person may reconsider the decision and may:

(a) affirm the decision; or

(b) vary the decision; or

(c) set aside the decision and make a new decision in substitution for the decision set aside.

(3) If the person varies the decision:

(a) the application is taken to be an application for review of the decision as varied; and

(b) the person who made the application may either:

(i) proceed with the application for review of the decision as varied; or

(ii) withdraw the application.

(4) If the person sets the decision aside and makes a new decision in substitution for the decision set aside:

(a) the application is taken to be an application for review of the new decision; and

(b) the person who made the application may either:

(i) proceed with the application for review of the new decision; or

(ii) withdraw the application.

Time limits

(5) The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:

(a) if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision—that period;

(b) in any other case—the period of 28 days beginning on the day on which the decision was remitted to the person.

(6) The Tribunal may, on the application of the person, extend the period applicable under subsection (5).

(7) If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.

(8) If the person affirms the decision, the proceeding resumes.

Making a decision

20 Ms Bienstein sought to justify the central proposition of her argument, that each of the Attorney-General and the Minister for Home Affairs was and is required to make a decision on her request, in a number of ways. The one thing she could not do was to point to any provision of the FOI Act imposing a specific duty to make a decision. The effect of s 56(1) of the FOI Act is to treat a failure to make a decision within the 30 day time limit as a deemed decision to refuse to grant access to the document. There is no positive provision to the effect that a decision must be made within the 30 day period. The absence of such a provision tends to suggest that there is no enforceable right to have a decision made.

21 Ms Bienstein said that, once judgment had been given on her earlier applications to the Court, she expected that the Attorney-General and the Minister would each give a decision on her request for access to documents within 30 days. Why she might have expected this is not clear. The orders of the Court certainly did not purport to give rise to any such obligation. Once the Tribunal’s decisions that it did not have jurisdiction to deal with Ms Bienstein’s applications for review were set aside, each case was remitted to the Tribunal to be heard and decided again according to law. The orders clearly left the cases in the hands of the Tribunal, rather than in the hands of the Attorney-General and the Minister.

22 Ms Bienstein’s argument placed heavy reliance on what she characterised as words of limitation in s 56(1) of the FOI Act, “for the purpose of enabling an application to be made to the Tribunal under section 55”. Her argument was that deeming a decision refusing to grant access to documents to have been made for this limited purpose demonstrated a legislative intention not to substitute the deemed decision for an actual decision on the request for access to documents. Ms Bienstein drew attention to the contrasting terminology in s 30A(1B) of the FOI Act, in which a decision in relation to remission of an application fee “is taken, for all purposes of this Act” to have been made when the time limit expires. Similarly, Ms Bienstein pointed to s 25(5) of the AAT Act, under which a failure to do what is required “shall be deemed to constitute the making of a decision” at the expiration of the time limit. There are no qualifying words.

23 Ms Bienstein sought to construe s 56(1), in conjunction with s 58(1), of the FOI Act as conferring on the Tribunal power to review the failure of the recipient of a request for access to documents to make a decision, not to review a refusal to grant access to documents. Her argument was that the function of the Tribunal was to determine whether the Attorney-General and the Minister should have made decisions on her requests, rather than to review a refusal to grant access to the documents requested, there not having been any actual refusal.

24 Ms Bienstein asked rhetorically if the FOI Act contained no obligation on a Minister to make a decision, why would any Minister ever make a decision?

25 Ms Bienstein argued that if, for constitutional reasons, the Tribunal could not direct the Attorney-General or the Minister to make a decision in relation to her request for access to documents, because it lacked enforcement powers, the Court could nonetheless do so under the ADJR Act. This was the reason for the filing of the application under the ADJR Act. Ms Bienstein contended that there was no difficulty about that application being outside the time limit imposed by s 11(3) of the ADJR Act because, in the absence of an actual decision, there was no point from which time could begin to run.

26 Each of Ms Bienstein’s arguments runs up against the problem of the absence from the FOI Act of any express obligation to make a decision on the part of a recipient of a request for access to documents. Instead of an express obligation to make a decision, there are two possibilities. One is that the recipient of the request will make a decision, in which case there is a right of review conferred by s 55(1) of the FOI Act (subject to any requirement of internal review imposed by s 54). If no decision is made, s 56(1), in conjunction with s 55(1)(a), gives rise to a right of review. The purpose of s 56(1) is clearly to provide to a person who has a right of review as a result of a deemed decision the same right as that given by s 55(1)(a) to a person who has a right of review as a result of an actual decision refusing to grant access to documents. In the case of a deemed refusal, it is not the failure to make a decision that the Tribunal reviews, but the refusal to grant access to documents that is deemed to have occurred. The closing words of s 56(1), “a decision refusing to grant access to the document”, make this abundantly clear.

27 If authority be needed to support the proposition, it is found in Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301 at 306. In that case, the recipient of a request for access to documents had not made a decision within the 30 day period. The person making the request applied to the Tribunal for review of the deemed refusal. The Tribunal directed the recipient of the request to make a decision. The recipient did not comply with the direction, but filed an affidavit identifying documents as falling within the request. The Tribunal made a decision setting aside the deemed decision to refuse access by consent. It remitted the matter to the recipient of the request with a direction to grant access to certain designated documents. The question then arose as to whether the Tribunal should make a recommendation, pursuant to s 66 of the FOI Act, for the payment of costs of the proceeding in the Tribunal. The Tribunal declined to make a recommendation. The proceeding in the Court was an appeal from the decision to decline to make a recommendation for the payment of costs. On the appeal, at 305, Beazley J found that the Tribunal had identified what she described as “the second decision” as the relevant decision for its review. Her Honour then proceeded at 306 to hold that the relevant decision was the deemed decision refusing to grant access to the documents, not the decision to make the affidavit setting out the documents access to which was granted. In doing so, her Honour declined to distinguish Hounslow v Department of Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Sweeney J, 20 December 1985) on the basis that, in that case, there had been an actual decision to refuse access to documents. Her Honour said:

I do not consider the ground upon which counsel sought to distinguish Sweeney J’s decision in Hounslow to be a relevant point of distinction. An applicant is in no different position in the case of a deemed refusal than in the case of a considered refusal. In each case, the applicant is not granted access to documents. In each case, the applicant has the right to apply to the Tribunal for review of the decision although the relevant factors on review will, of course, be different. In my opinion, subject to the respondent’s s 56(5) submission, Sweeney J’s decision in Hounslow applies to this case.

It is not entirely clear what her Honour meant by the proposition that the relevant factors on review will be different as between an actual decision to refuse access and a deemed decision to refuse access. In each case, the task of the Tribunal will be to make the correct or preferable decision on the material before the Tribunal. Cashman is clear authority for the view that the Tribunal’s task in the case of a deemed decision to refuse access to documents is no different from its task in the case of an actual decision to refuse access.

28 This proposition disposes of another of Ms Bienstein’s arguments in the present case. That is the argument that the making of a decision would have given the Tribunal the opportunity to look at the reasons for a decision to see if they complied with the FOI Act. In reviewing a decision of any kind, the function of the Tribunal is not to decide whether the reasons given by the original decision-maker are correct or adequate or appropriate. The task of the Tribunal is to make its own decision and to do so by starting afresh. This has been recognised since Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J.

29 A comparison of terminology between different statutes, or even between different provisions in the same statute, can sometimes be useful in determining the meaning of a statutory provision. Differences in terminology are not necessarily a reliable indicator of an intention to produce different results. There is a clear purpose behind the use of the words “for the purpose of enabling an application to be made to the Tribunal” in s 56(1) of the FOI Act. That purpose is to make it clear that it is not necessary for a person affected by a deemed decision to refuse access to documents to go through the internal review process for which s 54 provides. In the case of an actual decision to refuse access to documents, internal review under s 54 would be a prerequisite to an application to the Tribunal for review under s 55. In the case of a deemed decision to refuse, Parliament has obviously taken the view that it would be pointless to waste the time of a person requesting access to documents by requiring him or her to seek internal review of a decision that had not in fact been made. By contrast, the effect of the words “for all purposes of this Act” in s 30A(1B) would be to subject a deemed decision to refuse to remit an application fee to the same requirement of internal review as would be imposed in the event of an actual decision refusing to remit the fee. A comparison of these two provisions with s 25(5) of the AAT Act is of little value. The AAT Act is a general application. The specific provisions of the FOI Act would take precedence over the general provisions of the AAT Act in the event of conflict. Given that the specific words of both s 56(1) and s 30A(1B) of the FOI Act have identifiable purposes, any attempt to attach significance to the absence of qualifying words in s 25(5) of the AAT Act cannot succeed.

30 The argument that s 58(1) of the FOI Act gives the Tribunal power to review a failure to make a decision is not correct. Section 58(1) constitutes the conferral on the Tribunal of wide powers in a proceeding to review a decision or, as in the present case, a deemed decision. The conferral of a power “to review any decision that has been made” does not amount to the conferral of a power to review a failure to make a decision. For the Tribunal to attempt to review a failure to make a decision would be a distraction from the task of the Tribunal, which is to make the correct or preferable decision, on the material before it, in relation to the request for access to documents.

31 It is not to the point to ask why any Minister would ever make a decision if there is no obligation to do so. Doubtless, many Ministers do make decisions, because they see it as important to respond to requests for access to documents, rather than to allow the responsibility to be undertaken by the Tribunal on a review of a deemed decision refusing to grant access to documents.

32 The Tribunal was correct to determine, in its decision of 4 January 2008, that it had no power to direct the Attorney-General or the Minister to make a decision, but had jurisdiction to review the decisions deemed to have been made by the Attorney-General and the Minister to refuse Ms Bienstein’s requests for access to documents. As the Tribunal recognised at [29] of its reasons for this decision, it had a power under s 42D of the AAT Act to remit a decision for reconsideration. If it had chosen to exercise this power, and remitted the relevant deemed decision to each of the Attorney-General and the Minister, each of them might have been motivated to make a decision. It is by no means clear that this would have occurred, because the advocate representing both the Attorney-General and the Minister had made it clear to the Tribunal at a directions hearing that neither proposed to make a further decision. This may have been a reason for the Tribunal refraining from exercising its power to remit under s 42D. In any event, that power is a discretionary one. The exercise of a discretion conferred on the Tribunal is immune from appeal to this Court unless it raises a question of law. The exercise of the discretion by the Tribunal in the present case does not raise a question of law. Similarly, the power given to the Tribunal by s 56(6) of the FOI Act to allow further time to deal with a request for access to documents involved a discretionary power. Neither that subsection nor s 56(5) of the FOI Act authorises the Tribunal to direct the making of a decision. As the Tribunal said at [31] of its reasons for decision of 4 January 2008:

Section 56(5) does not authorise the Tribunal to direct an agency or Minister to make a decision. It permits it only to facilitate the making of a decision should the agency or Minister wish to do so. Such further decisions are not infrequent and assist in narrowing the documents that are truly in issue between the parties.

33 For these reasons, the Tribunal was correct to hold that it did not have power to direct either the Attorney-General or the Minister to make an actual decision on Ms Bienstein’s request for access to documents. The Tribunal dealt with the deemed decision to refuse such access, as it was obliged to do.

Bias

34 In argument, Ms Bienstein raised the question of bias on the part of the Tribunal. Initially, she said that bias was not advanced as a ground for overturning the Tribunal’s decision, but was advanced on the basis that, if the decision were to be overturned on other grounds, the Tribunal should be reconstituted upon the case being remitted to it. In reply, Ms Bienstein said that she wished to raise the question of bias as a separate ground. She made it clear that she was not alleging bias against her. Rather, she was alleging that the Tribunal had either an actual or an apprehended predisposition to protect Ministers from having to comply with requests for access to documents.

35 The test that must be satisfied before a decision-maker can be disqualified for bias is well known. It is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided. Obviously, the fact that the ultimate decision in a proceeding is adverse to a party is not evidence of bias against that party. In the overwhelming majority of cases, one party will be successful and the other unsuccessful.

36 The basis on which Ms Bienstein alleged bias is set out at some length in her amended notice of appeal. It may be summarised as follows.

37 Ms Bienstein characterised the Deputy President who constituted the Tribunal as her opponent and suggested that the advocate for the Attorney-General and the Minister had minimal input into arguments. She referred to a directions hearing at which she said the Deputy President had spoken more than three times as much as the advocate.

38 Ms Bienstein complained that the advocate for the Attorney-General and the Minister was an officer of the Attorney-General’s Department and was therefore not a proper person to appear. She was concerned that, although the transfers of the requests for access to documents to the Attorney-General’s Department had been held to be invalid, it was still an officer of that department who was appearing. Further, the advocate said that he did not take instructions directly from the Attorney-General or the Minister, but only from their staff. The Deputy President ruled that the Tribunal was not an appropriate forum to discuss how the advocate received instructions. Ms Bienstein characterised this as the Tribunal preventing the advocate from disclosing more information. She said the Tribunal provided no opportunity for the parties to make submissions on the point.

39 Ms Bienstein complained that directions hearings were being conducted by the Tribunal by telephone, and were not being recorded for transcript purposes. The Deputy President refused to order them to be recorded. Ms Bienstein was alleging failure to comply with my earlier judgment, as well as bias, lack of independence and collusion. She said that the absence of recording for transcript meant that these issues could not come to light.

40 Part of the complaint of bias concerned the refusal of the Tribunal to order the Attorney-General and the Minister to make decisions and the Tribunal’s refusal to review their failure to do so. Ms Bienstein contended that the Tribunal had failed to disclose information vital to her understanding about her rights, by failing to explain the difference between a court, which has the power to enforce, and the Tribunal which does not.

41 Ms Bienstein asked the Tribunal to order that each of the Attorney-General and the Minister file a statement complying with s 37 of the AAT Act. Ms Bienstein said that such a statement should attach all of the required documents, including print-outs of computer screens showing all searches and all results of searches. Initially, the Tribunal ordered only a statement of the evidence. Eventually, it directed the Attorney-General and the Minister to provide s 37 statements. Ms Bienstein complained that these were inadequate. They were signed by an officer of the Attorney-General’s Department (which Ms Bienstein regarded as a contravention of my earlier judgment), were meaningless in the absence of any decision by the Attorney-General or the Minister, and did not attach documentary evidence as Ms Bienstein thought they should. Ms Bienstein criticised the Tribunal for accepting these documents. The Tribunal refused a request by Ms Bienstein to direct that the documents be re-done. Ms Bienstein then wrote a letter to the Tribunal, detailing her complaints, but the Tribunal did not act. Ms Bienstein complained again that the Deputy President behaved as if she were Ms Bienstein’s opponent. She also alleged that the Tribunal had misconstrued her letter in subsequent reasons for decision. She also alleged that the Tribunal effectively refused to determine a question of law relating to s 37 and allowed “a patently insufficient defence to stand in a matter where the Respondent bears onus.”

42 To a large extent, Ms Bienstein’s complaints about the Tribunal’s handling of the case can be traced to her understanding of my earlier judgment. That judgment did not establish the proposition that the Attorney-General and the Minister were obliged to make decisions on Ms Bienstein’s requests for access to documents. Each case was remitted to the Tribunal, and it was for the Tribunal to exercise the function of dealing with each request and making its own decision on that request. As I have said, the Tribunal could not compel either the Attorney-General or the Minister to make a decision. A statement under s 37(1) of the AAT Act is a statement of reasons (including findings on questions of fact) by the original decision-maker. Such a statement is required to be accompanied by the documents relevant to review by the Tribunal of the decision. In the absence of an actual decision, it is hardly surprising that the Tribunal resisted Ms Bienstein’s attempts to persuade it to require the lodging of such a statement by either the Attorney-General or the Minister. Nor is it surprising that, when the Tribunal did accede to Ms Bienstein’s request and order s 37 statements, the statements were not of great assistance to her. There was no actual decision reasons for which could be given. There was no review of such an actual decision by the Tribunal, so it was difficult to know what documents might have been relevant to such a review if there had been any decision. Ms Bienstein simply had the wrong idea about the function of the Tribunal. No doubt this contributed to her frustration that the Tribunal did not accept that the situation was as she saw it.

43 For the Deputy President constituting the Tribunal to be the principal person responding to an applicant’s submissions in a directions hearing is not necessarily indicative of the Deputy President becoming Ms Bienstein’s opponent. At a directions hearing, a party is seeking directions. It is appropriate that the Tribunal respond to every suggestion as to what directions might be made, without necessarily calling on the opposing party to respond. It is often more convenient for a judge, or a Tribunal member, to filter out from one side’s requests those that are not appropriate before calling upon the other party to respond to those that may be. It was also appropriate for the Tribunal to put an end to Ms Bienstein’s attempts to investigate how the advocate for the Attorney-General and the Minister was receiving instructions. It was not for Ms Bienstein to select the person who would appear for the Attorney-General and the Minister. It was not for Ms Bienstein to query the nature or quality of that person’s instructions. If the Attorney-General and the Minister wished to use an officer of the Attorney-General’s Department, that was a matter for them. If they wished to authorise members of their staff to instruct that officer, again that was a matter for them. There was no point in pursuing the matter in the Tribunal, which could not have made any decision about it.

44 The Tribunal’s refusal to record directions hearings was also not evidence of bias. By s 33(1)(a) of the AAT Act, the procedure of the Tribunal is within the discretion of the Tribunal. Nothing in the AAT Act requires that there be a transcript of every hearing, particularly of a directions hearing. The need for expedition and economy in conducting proceedings will often give rise to telephone directions hearings that are not recorded. The fact that Ms Bienstein wished to raise allegations of bias, lack of independence, contempt of this Court, or collusion (as a result of her misunderstanding of the effect of the earlier judgment) did not give her a right to require the Tribunal to have all directions hearings recorded for the purpose of transcript.

45 For these reasons, Ms Bienstein has failed to establish that a reasonable lay observer would have apprehended that the Tribunal did not bring an open mind to Ms Bienstein’s case.

The Tribunal’s ultimate finding

48 The Tribunal’s decision of 13 June 2008 was to affirm the decision deemed to have been made by each of the Attorney-General and the Minister to refuse access to documents as requested by Ms Bienstein. This decision was based on a finding that all reasonable steps had been taken by each of the Attorney-General and the Minister to find the documents Ms Bienstein sought and that, except for the documents that had been located and dealt with previously, the documents to which Ms Bienstein requested access did not exist. By s 24A of the FOI Act, a finding in these terms justifies a refusal of a request for access to a document. Whether all reasonable steps had been taken, and whether documents exist, are questions of fact. Findings of fact on those questions can only be overturned in this Court if there is some error of law on the part of the Tribunal that leads to a conclusion that the finding is not a proper result of the exercise of the Tribunal’s powers. Ordinarily, a finding of fact of this nature will mean that, even if there are errors of law on the part of the Tribunal, if those errors do not taint the findings of fact under s 24A of the FOI Act, the Tribunal’s decision will stand.

49 The findings of the Tribunal under s 24A of the FOI Act in the present case have additional significance. If Ms Bienstein had managed to make out a case that the Attorney-General and the Minister were required to make decisions on her requests for access to documents she would not necessarily be entitled to the relief she sought in her proceeding under the ADJR Act. This is because the grant of such relief would be futile. Each of the Attorney-General and the Minister would have been entitled simply to refuse Ms Bienstein’s request for access to documents on the basis that all reasonable steps had been taken to find the documents and no further documents existed. The Tribunal’s findings of fact under s 24A of the FOI Act were fatal to Ms Bienstein’s case.

Costs

50 In the course of the hearing of the appeal, I asked specifically of counsel whether the Attorney-General and the Minister would seek an order for costs against Ms Bienstein if they were successful. I was advised subsequently by letter to my associate that the Attorney-General and the Minister did seek costs in the event that they were successful.

51 Ms Bienstein has failed to establish any of the points on which her case was based. In particular, she has failed to justify her belief that she had a right to have a decision from each of the Attorney-General and the Minister in relation to her request for access to documents, notwithstanding that each case had been remitted to the Tribunal for its decision. In the circumstances, there is no reason why the usual principle, that costs follow the event, should not be applied.

Conclusion

52 The appeal in proceeding number VID 563 of 2008 and the application in proceeding number VID 1 of 2009 must be dismissed. In each case, Ms Bienstein will be ordered to pay the respondents’ costs of the appeal.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.

Associate:

Dated: 15 December 2009

The applicant appeared in person

Counsel for the respondents:	Ms J Lye

Solicitor for the respondents:	Australian Government Solicitor

Date of hearing:	16 June 2009

Date of judgment:	15 December 2009

Top

The nature and history of the proceeding

The legislation

Making a decision

Bias

Other Questions

The Tribunal’s ultimate finding

Costs

Conclusion