FEDERAL COURT OF AUSTRALIA

Cameron v Secretary, Department of Human Services [2015] FCA 875

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal). The decision was to dismiss, under s 42B of the AAT Act, an application for review of a decision which, for the purposes of that application, was taken to be a decision under the Freedom of Information Act 1982 (Cth) (the FOI Act) that certain documents the subject of an access request by the applicant, Mr Cameron, be released to him with certain redactions: Cameron v Secretary, Department of Human Services [2015] AATA 62.

Introduction

2    Mr Cameron has had a long-standing dispute with the Department of Human Services (DHS) in relation to his application for a disability support pension. Mr Cameron is a recipient of such a pension. His dispute with DHS concerns the basis on which he has been assessed as eligible for that pension.

3    The Social Security Act 1991 (Cth) under which Mr Cameron’s disability support pension has been granted is administered nominally by the Secretary, Department of Social Services (DSS). However, DHS manages the legislation under the “Centrelink” service line for DSS. Thus, Mr Cameron’s Centrelink file in respect of his disability support pension is in DHS’s possession.

4    On 19 November 2013, Mr Cameron wrote to DHS requesting access under the FOI Act to documents, as follows (the request):

1.    For a clear, concise and comprehensive rationale for the decision made by Centrelink doctors to bypass an authoritative diagnosis of [chronic fatigue syndrome];

2.    For an explanation of the letter signed by Glenda Lee and dated 19 September 2012;

3.    For a response to the request made by Rob for a One Main Contact Person to be assigned by me;

4.    For a written answer to this question: Is there a process/mechanism within Centrelink to review a decision made by a doctor from the Health Professionals Advisory Unit and appraise the quality of that decision from a medical perspective? If yes, what is that process/mechanism and how do I contact the people who execute it?

5.    For my entire Centrelink file since lodgement of my DSP application.

5    Mr Cameron has made other FOI requests of DHS. This was, apparently, the second such request. The parties accept that this request is the one that was relevant to the application for review before the Tribunal.

6    Paragraphs 1 to 4 of the request do not seek documents, but rather explanations and responses addressing the questions raised or matters described in those paragraphs. By letter dated 22 January 2014, DHS informed Mr Cameron that it did not propose to address those matters. However, paragraph 5 of the request plainly does seek documents and, by the same letter, DHS informed Mr Cameron that it would provide those documents with certain redactions. There were 733 documents which DHS had identified as falling within paragraph 5 of the request. Having regard to the terms in which paragraph 5 was expressed, DHS treated the request as one directed to the Centrelink file maintained by DHS in respect of Mr Cameron’s application for a disability support pension.

7    Mr Cameron was not satisfied with DHS’s response. He sought a review by the Information Commissioner. In reliance on s 54W(b) of the FOI Act, the Information Commissioner declined to review DHS’s decision, with the consequence that the matter was referred to the Tribunal for consideration. Following a directions hearing on 1 December 2014 (the directions hearing), the respondent applied to dismiss the application for review under s 42B of the AAT Act. After a hearing conducted on 2 February 2015, the Tribunal acceded to the respondent’s application.

8    In understanding the course of events leading to the Tribunal’s dismissal of the application for review, it is necessary to refer to another matter. Earlier, on 9 April 2013, Mr Cameron had lodged a claim with DHS for compensation under the Compensation for Detriment caused by Defective Administration scheme (the CDDA scheme) in relation to an initial decision by DHS on 7 April 2011 to reject Mr Cameron’s application for a disability support pension. The matter ultimately came before the Tribunal, where Mr Cameron’s claim was supported by additional medical evidence. DHS agreed to concede his claim and retrospectively granted Mr Cameron a disability support pension from 25 March 2011. Mr Cameron’s claim for compensation under the CDDA scheme was that DHS had acted unreasonably in initially rejecting his application for a disability support pension. He believed that he had been treated unfairly by DHS and that DHS had acted incompetently. Mr Cameron’s claim for compensation was rejected on 28 June 2013.

9    It seems that a separate file is maintained by DHS in relation to Mr Cameron’s unsuccessful CDDA claim. DHS did not understand the request made on 19 November 2013 to be directed to Mr Cameron’s CDDA claim. This is understandable given that paragraph 5 of the request appears to be directed to Mr Cameron’s application for a disability support pension rather than his claim for compensation under the CDDA scheme. Mr Cameron says that he only became aware of the fact that DHS maintained a separate file in respect of his CDDA claim shortly before the hearing of the present appeal.

10    I should record that I was informed at the hearing that the documents comprising DHS’s file in relation to Mr Cameron’s CDDA claim, to the extent that it includes documents not in his Centrelink file, were provided to him under cover of a letter dated 4 June 2015 from the respondent’s solicitors. Two documents were provided, namely a letter dated 15 April 2013 from DHS to Mr Cameron and a Customer Compensation Decision Statement dated 28 June 2013 : Exhibit A Tab 6.

The Tribunal decision

11    Before the Tribunal, Mr Cameron’s complaint was not about the redactions that were made in respect of the documents that DHS had produced in response to the request. Rather, his complaint was that paragraphs 1 to 4 of the request had not been addressed by DHS’s response and that the response which had been made by DHS, by the production of the 733 documents, was not complete.

12    The Tribunal was satisfied as a matter of fact that Mr Cameron had been provided with all extant documents which met the description of the request: see at [23].

13    With respect to paragraphs 1 to 4 of the request, the Tribunal said (at [22]):

The FOI Act creates an enforceable right of access in accordance with the Act to a document of an agency, other than an exempt document: s 11. A document is a document of an agency if it is in the possession of the agency, whether created in the agency or received in the agency, or in certain other cases which do not apply here: s 4. The Act does not create a right to information unless it is in a document of the agency already in existence. There is no obligation on an agency to bring a document into existence in order to meet a request for information.

(Emphasis in original.)

14    Given its finding that all documents which met the description of the request had been produced, the Tribunal reasoned that there was little point in allowing the application for review to proceed in relation to paragraphs 1 to 4 of the request. This was because the respondent would not be obliged under the FOI Act to provide Mr Cameron with the explanations and responses he was seeking. Accordingly, the Tribunal found (at [23]) that Mr Cameron’s application for review was frivolous in the sense that there was no legal basis for it: Soames v Secretary, Department of Social Services (2014) 63 AAR 217.

Legislative framework

15    Section 25(1) of the AAT Act provides:

(1)    An enactment may provide that applications may be made to the Tribunal:

(a)    for review of decisions made in the exercise of powers conferred by that enactment; or

(b)    for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

16    As I have noted, Mr Cameron sought review by the Information Commissioner of the respondent’s response to the request. In reliance on s 54W(b) of the FOI Act, the Information Commissioner declined to review DHS’s decision. In that connection, s 54W of the FOI Act, relevantly, 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:

…

(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…

17    Section 25(4A) of the AAT Act provides:

Tribunal may determine scope of review

(4A)    The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.

18    Section 33(1) of the AAT Act provides:

(1)    In a proceeding before the Tribunal:

(a)    the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)    the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)    the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

19    Section 42B(1) of the AAT Act provides:

(1)    The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

(a)    is frivolous, vexatious, misconceived or lacking in substance; or

(b)    has no reasonable prospect of success; or

(c)    is otherwise an abuse of the process of the Tribunal.

20    Section 44(1) of the AAT Act, relevantly, provides:

(1)    A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

21    In Haritos v Commissioner of Taxation [2015] FCAFC 92, the Full Court summarised (at [62]) the jurisdiction of the Court under s 44(1) as follows:

(1)    The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.

(2)    The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.

(3)    The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.

(4)    Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.

(5)    In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.

(6)    Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.

(7)    A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.

(8)    The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

(9)    In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.

(10)    Earlier decisions of the Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, [Comcare v Etheridge [2006] FCAFC 27; 149 FCR 522,] [HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34; 149 FCR 291] and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.

The appeal

22    On 12 June 2015, Mr Cameron filed an amended Notice of Appeal from a Tribunal (the amended notice of appeal), which purportedly raised a number of questions of law. At the hearing, Mr Cameron limited his appeal to the following questions, which he described as:

    Ultra vires: improper purpose and bad faith.

    The rule against bias.

    Ultra vires: unreasonableness.

23    As to the second of these questions, Mr Cameron limited his case at the hearing of the appeal to one of apprehended bias. His original allegation in the notice of appeal appears to have been one of actual bias. This is certainly how the notice of appeal was understood by the respondent. Mr Cameron had alleged that the Tribunal “was strongly biased in favour of Centrelink”. However, at the hearing of the appeal, Mr Cameron conceded that he had no basis for making a claim of actual bias on the part of the Tribunal.

24    Mr Cameron directed his submissions primarily to the question of apprehended bias, rather than to the questions of improper purpose/bad faith or unreasonableness. However, I think it is fair to say that, in his mind, each of these questions coalesced into his central proposition that the Tribunal erred in finding that the respondent had produced all the documents that met the call of the request and that no useful purpose would be served by allowing the application for review to proceed in relation to whether the respondent had complied with or was required to respond to paragraphs 1 to 4 of the request. The Tribunal’s finding as to production was based on its acceptance of assurances given to it by the respondent’s representative in the course of hearing the s 42B application and at the directions hearing.

25    Mr Cameron submits that the Tribunal treated the respondent’s assurances in that regard as “sacrosanct” and did not initiate questions about how the request was processed by DHS or develop a clear understanding of how his request was perceived by DHS. Mr Cameron argues that this suggests that the Tribunal did not bring an impartial mind to bear when considering the s 42B application. Relatedly, he argues that the Tribunal’s decision to dismiss the application for review under s 42B of the AAT Act was unreasonable and was arrived at for an improper purpose or in bad faith.

26    The respondent accepts that: the Tribunal was obliged to accord Mr Cameron procedural fairness; the Tribunal was required to exercise its power under s 42B for a proper purpose and not in bad faith; and, the Tribunal was required to arrive at a decision that, objectively, was reasonable in the requisite legal sense. Whether the Tribunal adhered to these precepts raises, in each case, a question of law. The respondent submits, however, that Mr Cameron has not established that the Tribunal erred in dismissing the application for review under s 42B of the AAT Act.

The course of the Tribunal proceeding

27    In developing his submissions, Mr Cameron referred to various passages in the transcript of the hearing of the s 42B application on 2 February 2015. He also referred to passages in the transcript of the directions hearing. The purpose of the directions hearing was to ascertain the true issues in dispute between the parties and to determine the best way in which those issues could be decided.

28    Mr Cameron’s reason for referring to the transcript was to support his submission that, at the directions hearing and at the hearing of the s 42B application, the Tribunal was diverted by a false argument that Mr Cameron’s complaint was one concerning the redactions that had been made to some of the 733 documents that had been produced by DHS in response to the request. This was the constant theme of Mr Cameron’s submissions. In my view, this theme was itself a distraction: see [54] below.

29    The better reason for considering the transcript of the directions hearing and the hearing of the s 42B application is that those hearings provide the context in which the decision under appeal was made and in which the issues raised in the present appeal fall to be considered. In succeeding paragraphs of these reasons, I will quote various passages of the transcript verbatim.

The directions hearing on 1 December 2014

30    It is fair to say that, at the directions hearing, the respondent’s representative, Ms Linacre, initially understood one of Mr Cameron’s complaints to be about redactions. This understanding is reflected in the respondent’s statement of issues dated 5 September 2014 that was before the Tribunal: Exhibit B.

31    At the directions hearing, there was also discussion concerning paragraphs 1 to 4 of the request—in particular that those paragraphs were not directed to documents but to requests for explanations or responses to questions which Mr Cameron had posed. Mr Cameron regarded the questions raised by those paragraphs as reasonable questions which, he assumed, must have been addressed in extant documents that had not been provided to him.

32    The following exchange took place:

MS LINACRE: I need to explain, unfortunately, if I may. So the FOI Act only allows us to process a request for access to documents, so the document has to already exist. So it means that if we had documents that were answers to these questions and they were sitting on your file they would have been provided to you, but no documents were found that existed that answered those questions.

MR CAMERON: Okay, I understand that. Assuming that is the case.

MS LINACRE: Yes.

MR CAMERON: Then the onus was on Centrelink to provide that message to me in plain English. That is the crux of it.

SENIOR MEMBER: Let me understand this. If there are documents that you want access to, Mr Cameron, that Centrelink says, “We’ve looked for and don’t exist, do you accept what they say?

MR CAMERON: Providing that there was a genuine dialogue.

SENIOR MEMBER: Yes.

33    This exchange appears to signify Mr Cameron’s preparedness to accept the respondent’s assurances, if genuinely given, that, had there been documents answering paragraphs 1 to 4 of the request, they would have been produced to him.

34    Further exchanges between the Tribunal and Mr Cameron elicited that Mr Cameron made no complaint about the redactions that had been made, although he nevertheless complained about the reason for making them. Nothing turns on that matter so far as the present appeal is concerned. The point of present significance is that Mr Cameron made clear at that time, and the Tribunal understood at that time, that Mr Cameron was not seeking a review of the respondent’s decision on the basis that redactions had been made to documents. This is stated in the Tribunal’s reasons for the decision under appeal. I refer in particular to [13]-[18] of the Tribunal’s reasons which included quotations from the transcript of the directions hearing.

35    In the course of the directions hearing, Mr Cameron made a number of wide-ranging complaints about DHS’s conduct. The Tribunal endeavoured to explain to Mr Cameron that it did not have jurisdiction to deal with all his complaints. In that connection, the following exchange took place:

SENIOR MEMBER: But what you need to understand about the tribunal is that the tribunal’s got certain particular powers. They’re basically the powers in this legislation.

MR CAMERON: I haven’t read - I understand what you’re saying.

SENIOR MEMBER: That’s okay. That’s okay, but they are to review decisions, particular decisions that people are unhappy about and whether that decision - - -

MR CAMERON: So can only review particular decisions?

SENIOR MEMBER: Yes.

MR CAMERON: Okay, thank you.

SENIOR MEMBER: And the tribunal’s task is to decide whether the decision that was made was what’s called the correct or preferable decision.

MR CAMERON: The correct, okay, yes.

SENIOR MEMBER: And that is a very narrow legal task and often, because people are dealing with government departments, because every decision this tribunal reviews, almost every decision this tribunal reviews, is a decision of a government department, people are often unhappy about all sorts of things, but there is nothing that the tribunal can do. It can only decide was that really the right decision or not?

MR CAMERON: I respect you, I respect your office, you know, the AAT. And we’re not going to come back. You know, it’s clear the AAT are not going to be able to address my file, my primary concern. I don’t have a problem with that. You’ve already done more than anybody else and I thank you for it. And how is the best way to proceed? Alice stated that one course of action is for me to go to the - got to the Ombudsman. Okay, well where’s the letter written by - and this is - okay, here we are.

36    The Tribunal endeavoured to direct Mr Cameron’s attention to considering the utility of his application for review if he was not complaining about the making of redactions. Ms Linacre suggested that Mr Cameron might consider withdrawing the application for review. Ms Linacre indicated that, if Mr Cameron did not withdraw the application for review, the respondent would consider bringing an application under s 42B of the AAT Act to have it dismissed.

37    When discussing that matter, the following exchange took place:

SENIOR MEMBER: All right. All right, well so that you’re quite clear it is open to the respondent to apply to the tribunal to have your application dismissed on the ground that it is frivolous or vexatious. Now, I want to explain what that means. I want to explain what that means. An application can be considered - leave aside vexatious. I don’t think it’s been suggested that that’s - and - - -

MR CAMERON: Okay, thank you. Do you agree with that?

MS LINACRE: Yes, I agree with that.

MR CAMERON: Okay. I’ll get my own word.

SENIOR MEMBER: However, I would expect it would be open to the respondent to say continuing with the application is frivolous, which is a slightly old fashioned word, but because there is no longer any content to the dispute, there’s no longer, in fact, a dispute in this application. Now, just so you’re quite clear. If you wish to withdraw this application all you have to do is put something in writing to the tribunal saying, “I withdraw this application”, and that’s all you need to do. I mean, the effect of it is that this current application comes to an end, but that doesn’t bring to an end anything else you might wish to do by way of going to the Ombudsman, or whoever else you wish about anything else.

MR CAMERON: Okay. Well, I’ve heard what you’ve said and I really appreciate the fact that you’ve both stated that I’m not vexatious. Okay? I’ve got many flaws.

38    Discussions returned to the question of “outstanding documents”. Ms Linacre stated that she understood any request by Mr Cameron for “outstanding documents” to be referable to the request for explanations and responses contained in paragraphs 1 to 4 of the request. The matter was effectively left with that understanding. The directions hearing concluded with Mr Cameron indicating that he may make another FOI request.

The hearing of the s 42B application

39    The hearing of the s 42B application took place having regard to the matters that had been discussed at the directions hearing.

40    With regard to paragraphs 1 to 4 of the request, Mr Cameron appeared to maintain his contention that there should be documents that provided the explanations or responses he was seeking. Otherwise, he argued, there should be an explanation why such documents had not been brought into existence. In that connection, Mr Cameron said:

MR CAMERON: A number of those items in numbers 1 to 4 of the list are matters that refer to information that either exists within Centrelink documents and that describes the decisions and actions of Centrelink public servants in the course of processing my case or if that information is not present in documents then the question becomes just to was the Centrelink person required to document her evidence which in turn leads to a question in any instance where there was a requirement for a Centrelink person to document their actions but they failed to write the appropriate document, then the question is why was that step not conducted.

41    The Tribunal explained to Mr Cameron that the FOI Act was “not legislation that can be used to require somebody to produce a document that doesn’t already exist or to provide an explanation for something that’s happened”. The following exchange then took place:

MR CAMERON: And what you have stated is what I expect and I have no quibble with it. However, the fact still remains that there are documents in my file that Centrelink did not provide to me with the second FOI request, the one processed by Mr Cooke. Now, I’m highly confident and if I was not crook I would have made the time to go through the documents released under FOI in February, I think, of 2014, to check this assertion. I’m highly confident that I have in my possession documents generated during the compensation for defective and detrimental administration process. I have a number of those documents in my possession and I’m highly confident - again, correct me if I’m wrong - that those documents were not released in that FOI bundle of documents.

SENIOR MEMBER: Are you able to comment on that, Ms Linacre?

MR CAMERON: And I’ve stated that in writing at least once.

MS LINACRE: I’m not. It would be open to Mr Cameron to provide us with details of those documents, although, I’m not sure what utility there would be apart from reassuring him that we’ve conducted reasonable searches.

SENIOR MEMBER: You see, one of the things, Mr Cameron - - -

MR CAMERON: Can I - - -

SENIOR MEMBER: No, just let me explain this part. Is that when a person seeks access to documents they have to be sufficiently clear in the description of the document to enable a search to be made and if there are particular documents that you say exist it’s open to you to identify those documents and for Centrelink to respond, but it’s got to be more than just, “I believe there are documents.”

MR CAMERON: I don’t have any correspondence with me today; the reason being I haven’t recovered from the AAT process on 2 December 2014. I had a small fire ecology project that I participate in as a volunteer two days before the hearing and I had another one to finish that project off a couple of days after it. I had some family members staying, I went on an overnight bushwalk where I walked two kilometres there and back. So a small walk compared to someone who used to be as fit as a mallee bull. I haven’t brought any documents today.

The first day I came I arrived with an airport-sized suitcase, two-thirds full of documents. The reason I brought that suitcase of documents is to provide physical evidence that I already have a huge pile of documents obtained under the FOI process and to make the point that I don’t want any information anything to do with the documents I already have, but the documents I’m after are the outstanding documents, documents that I described in great detail repeatedly in response to the documents released by Mr Cooke.

SENIOR MEMBER: And I understand that what you call the outstanding documents are really those first four matters?

MR CAMERON: Correct.

42    This exchange reveals two, closely-related matters. First, Mr Cameron expressed some concern that not all documents had been produced in response to his request. He referred to documents “generated during the compensation for defective and detrimental administration process” but he did not specify or otherwise identify the documents to which he was referring, except that they were already in his possession. Indeed, he could not even be sure that the unspecified and otherwise unidentified documents he had in mind had not already been produced by DHS in response to the request. Secondly, he made clear that the “outstanding documents” were those documents that addressed the explanations and responses he was seeking in paragraphs 1 to 4 of the request.

43    I pause here to note, for later reference, that Mr Cameron did not claim that DHS’s file on his CDDA claim, as such, was within his contemplation as being caught by paragraph 5 of the request. At best, he made a reference to documents generated in the course of processing that claim, which might already have been produced as part of the production of the Centrelink file dealing with his application for a disability support pension. Plainly, when referring to “outstanding documents”, Mr Cameron was directing the Tribunal’s attention to the explanations and responses he was seeking in paragraphs 1 to 4 of the request.

44    The Tribunal explained to Mr Cameron, once again, that the function of the FOI Act was not to provide a mechanism for making general inquiries for information to enable people to understand “how government works” or “how decisions might have been made”. The Tribunal explained that the FOI Act was directed to a “focused right of access to documents that exist already”.

45    The transcript shows that Mr Cameron was not satisfied on this subject. In particular, he wanted DHS to respond to the question he had posed in paragraph 4 of the request because he believed that “there is information within the scope of my FOI request that Centrelink is withholding from me”.

46    In a number of passages in the transcript, the Tribunal referred to DHS’s assurance that, after making reasonable searches, Centrelink’s entire file, as sought in paragraph 5 of the request, had been provided to Mr Cameron, save for the redactions about which there was no complaint. The following is an illustration:

SENIOR MEMBER: Documents have been provided in response to your FOI request which Centrelink says, and I accept, after reasonable searches is your entire file - - -

MR CAMERON: Well, this is the point of contention.

SENIOR MEMBER: - - - as that falls within the scope of an FOI request.

MR CAMERON: This is the point of contention. You’re - correct me if I’m wrong - my understanding is that you are unreservedly accepting/agreeing with Centrelink‘s assertion that they have provided me with my entire file. Is that what you are doing?

SENIOR MEMBER: Well, that’s what Centrelink asserts and I have no reason not to accept that.

MR CAMERON: Centrelink asserts a lot - many things.

SENIOR MEMBER: Well, that may be.

MR CAMERON: I just told you examples about the claim that the Centrelink doctor was unable to contact the clinician that made the diagnosis of chronic fatigue syndrome. I have stated on the public record that that statement is a bare-faced lie. Okay. So here we have clear evidence that people at Centrelink are willing to tell a bare-faced lie and to continue to tell a bare-faced lie when the lie is exposed. So that’s their track record - - -

SENIOR MEMBER: Just one minute.

MR CAMERON: - - - and so then you’re telling me - - -

SENIOR MEMBER: I don’t want it to be thought - - -

MR CAMERON: - - - that you - - -

SENIOR MEMBER: - - - that I’m agreeing with anything that you say. That’s your assertion, Mr Cameron.

MR CAMERON: Well, this is what happens. You are very - quite correctly you are - you suspend your judgment, behave in a manner that I would expect you to behave when I say something. On the other hand - so that we’re talking about here is the level of honesty of Centrelink.

SENIOR MEMBER: No, we are talking - I’m sorry, no.

MR CAMERON: Because you - - -

SENIOR MEMBER: I’m going to correct you. The tribunal has no general power to consider the conduct of any department or any officer, the tribunal can review decisions that it has power to review and in this case, you have asked the tribunal to review a decision made under the FOI Act in circumstances where Centrelink say they have provided you with all of your file after reasonable searches and there are other matters that you dispute and can take up with Centrelink, but that is the extent of the tribunal’s power and the respondent’s position, and I’ve got to say, I’m strongly inclined to agree with it, is no purpose is served by continuing these proceedings in the tribunal because there is no longer a disagreement that the tribunal can do anything about.

47    After further debate on matters that I do not need to record, the Tribunal stated that it proposed to grant the respondent’s application under s 42B of the AAT Act. In that connection, the Tribunal said:

SENIOR MEMBER: Thank you. Mr Cameron, Ms Linacre, I am going to grant the application by the respondent. I am going to dismiss the application, Mr Cameron, but I will provide written reasons to you and I’ll do that in the next few days. I think I need to - while it’s very clear to me that that is what I should do to dismiss your application, Mr Cameron, I would like to give you some clear and detailed reasons for that and so that’s why I will put those reasons in writing. Now, as we’ve said before, none of that puts an end to any rights you have to take up with Centrelink or any other organisation the grievances that you have about how your matters have been dealt with there. And so we are now this matter - - -

48    At this point, Mr Cameron interrupted the Tribunal to “ask a procedural question”. This was answered. Mr Cameron then challenged the Tribunal’s decision to dismiss the application for review by asking:

MR CAMERON: Can you go to the section about the claim for defective and detrimental administration section of those documents?

49    At the hearing of the appeal before me, Mr Cameron explained that this was a rhetorical question. But it was, quite clearly, an attempt by Mr Cameron to reagitate the application which the Tribunal had already decided after extensive argument. Quite understandably, the Tribunal, having pronounced its decision, did not engage in further debate with Mr Cameron on the matter.

50    It is important to note that at no stage during the hearing of the s 42B application, or at the earlier directions hearing, did Mr Cameron actually identify a document that: (a) met the description of the request; and, (b) was not among the 733 documents that had been produced by DHS, or provide any proper basis for DHS to embark upon a train of inquiry that might locate a relevant document that was not among the documents that had been produced. The focus of his complaint was to direct the Tribunal and the respondent to paragraphs 1 to 4 of the request and to argue that he was entitled to a response directed to the matters stated therein.

Consideration

51    In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality in the High Court described (at [6]) the apprehension of bias principle in the following terms:

[6]    Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

(Citations omitted.)

52    Their Honours noted (at [4]) that the application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making: see, also in this connection, Tarrant v Australian Securities and Investments Commission (2015) 317 ALR 328 at [138] with respect to the application of the principle to the Tribunal. Nothing in the present appeal turns on the differences to which the plurality in Ebner referred.

53    As I understand Mr Cameron’s argument, the Tribunal’s acceptance of DHS’s assurances concerning the production of documents gives rise to a reasonable apprehension that the Tribunal did not bring an impartial mind to bear when deciding whether the application for review should be dismissed under s 42B of the AAT Act.

54    I do not accept that argument. A fair reading of the transcript of the directions hearing and the s 42B application shows that the Tribunal conscientiously applied itself to identifying the issues raised by the application for review. This was not always easy. Mr Cameron’s exchanges with the Tribunal are, in a number of passages, difficult to follow and comprehend. He nevertheless made clear that he was not complaining about redactions which had been made to some of the 733 documents that had been produced. This was revealed at the directions hearing. That understanding remained at the hearing of the s 42B application. The Tribunal was in no doubt about that matter, as recorded in its reasons for decision. I do not think, as Mr Cameron claims, that the Tribunal was diverted from its task by the respondent’s initial understanding, through Ms Linacre, that Mr Cameron was complaining about the redactions that had been made.

55    It is also clear that Mr Cameron was persisting with his claim that he was entitled to a response from DHS to the queries he had raised in paragraphs 1 to 4 of the request, even though it was patiently explained to him on a number of occasions that, under the FOI Act, DHS was not required to furnish him with answers to his queries as opposed to providing extant documents that had been sufficiently identified by the request. It was reasonable for the Tribunal to conclude that Mr Cameron’s complaint about “outstanding documents” was directed to the explanations and responses he was seeking in paragraphs 1 to 4 of the request.

56    By the time of the directions hearing, Mr Cameron had been supplied with the 733 documents comprising his Centrelink file with respect to his application for a disability support pension. Mr Cameron queried whether the production was a complete answer to the request. The Tribunal tried to elucidate his concerns. But, in responding to the Tribunal’s questions in that regard, Mr Cameron accepted that his concerns were with respect to the explanations and responses he was seeking to the questions raised in paragraphs 1 to 4.

57    As to the completeness of production that had been made, it was for the Tribunal to decide how best to inform itself of the facts. It had received an assurance from the respondent’s representative, Ms Linacre, that reasonable attempts had been made to produce all documents answering the request, including extant documents to which the queries in paragraphs 1 to 4 of the request were directed. It was open to the Tribunal to act on that assurance and to find that Mr Cameron had been provided with all the documents in the respondent’s possession which met the description of the request. The Tribunal was not obliged to probe the respondent on that matter, unless there was some reason to do so. As the Tribunal made clear during the hearing of the s 42B application, there was no reason for it not to accept the respondent’s assurance in that regard.

58    This, of course, was a matter raised with Mr Cameron at the directions hearing. He signified his preparedness to act on such an assurance: see [32]-[33] above. Mr Cameron’s oblique reference at the hearing of the s 42B application to documents generated during the process of his CDDA claim (see the exchanges quoted at [41] and [48] above) could not reasonably have led the Tribunal to have any other understanding of the facts, particularly when Mr Cameron did not, and could not, direct the Tribunal’s attention to any omitted document.

59    If the Tribunal was mistaken in its finding, then that mistake does not raise a question of law. There is no “error of law simply in making a wrong finding of fact”: Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [44]. Similarly, there would be no error of law if the Tribunal was mistaken in its understanding of the description of the documents sought by the request, if that be the case.

60    There is nothing in the Tribunal’s reasons for decision, considered in the context of the directions hearing and the hearing of the s 42B application, that would make good the contention that a fair-minded lay observer might reasonably apprehend that the Tribunal did not bring an impartial mind to the resolution of the question of whether the respondent had produced all the documents in the respondent’s possession which met the description of the request or, more generally, that the Tribunal did not bring an impartial mind to the resolution of the question of whether the application for review should be dismissed under s 42B of the AAT Act.

61    Further, there is no foundation whatsoever for the claim that, in dismissing the application for review under s 42B of the AAT Act, the Tribunal acted with an improper purpose or in bad faith.

62    The remaining ground on which the applicant relies is that the decision to dismiss the application for review under s 42B of the AAT Act was unreasonable. Mr Cameron has not identified the sense in which he submits that, as a matter of legal analysis, the Tribunal’s decision was unreasonable. I suspect that he considers the decision to be unreasonable simply because the Tribunal acted on DHS’s assurances concerning the production of documents and because he considers his complaints to remain unanswered. If so, that does not mean that the Tribunal’s decision was unreasonable in any relevant legal sense.

63    I am unable to see how the Tribunal’s decision to dismiss the application for review on the ground that it was frivolous was a decision that was “illogical” or “irrational” (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611) or “clearly unjust” (House v The King (1936) 55 CLR 499) or “arbitrary” or “capricious” (R v Connell; Ex parte The Hetton Bellbird Collieries Limited (1944) 69 CLR 407) or unreasonable in the sense explained in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223. The Tribunal’s decision to dismiss the application for review was open to it and was a proper exercise of its discretion having regard to the issues presented for its consideration.

Disposition

64    Mr Cameron’s appeal should be dismissed with costs.

Associate:

Dated:    19 August 2015