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Matthews and Australian Securities and Investments Commission [2012] AATA 39 (25 January 2012)

Last Updated: 25 January 2012

CATCHWORDS –FREEDOM OF INFORMATION – FEES AND CHARGES – estimate of charges and amounts fixed for charges – distinction between charge for request for access and charge for provision of access to documents – estimate for charge for provision of access should be made on realistic assessment of whether access to be given to all documents within ambit of request for access or whether exemptions to be claimed – notice of charge or charges.

FREEDOM OF INFORMATION – JURSIDICTION – applicant did not apply to Tribunal for review of reviewable decision but chose to pay deposit for charges and ASIC resumed consideration of request – applicant not provided with access to documents as charges unpaid – applicant requested further review of charges – ASIC stated its decision on that request conducted outside FOI Act – no basis to conduct a review outside the FOI Act and no power under the FOI Act as ASIC’s power of review exhausted at time of earlier reviewable decision.

FREEDOM OF INFORMATION – EXTENSION OF TIME - extension of time not granted to applicant – closely regulated scheme for payment of charges that assumes an applicant either exercises review rights or pays the charges or deposit on account of charges – applicant’s decision to pay deposit meant that ASIC obliged to consider and decide his request and did so – extension refused.

Acts Interpretation Act 1901, s 33(1)
Administrative Appeals Tribunal Act 1975, ss 2A, 3(3), 29, 33(1)(b), 44(2A)(a)
Administrative Decisions (Judicial Review) Act 1977, s 11
Australian Securities and Investments Commission Act 2001, ss 11(1), 11(4), 244
Freedom of Information Act 1982, ss 4(1), 4(8), 11(1), 15, 15(5)(b), 15(6), 15(2), 17, 18, 23(1), 29, 20(1), 20(2), 20(3), 21, 29, 30A, 31, 54, 55, 94(1)-(3)
Freedom of Information Amendment (Reform) Act 2010, s 2(1) and item 6, s 3 and Sch 6, part 1, item34, Sch 6, part 2, item 41(a)
Freedom of Information Laws Amendment Act 1986, s 24
Migration Act 1958, s 420

Freedom of Information (Fees and Charges) Regulations, rr 3(1), 3(2), 4, 6(1), 9, 10, 11, 12, 13, 14, Sch 1, part I, items 2 & 5, Sch 1, part II
Freedom of Information (Fees and Charges) Amendment Regulations 2010 (No 1), r4

ASIC Instrument CO 02/968 and Policy Statement 174
FOI Memo 29, Appendix 1

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; 139 ALR 1
Brown v Federal Commissioner of Taxation [1999] FCA 563; (1999) 99 ATC 4516; [1999] FCA 563; (1999) 42 ATR 118
Chalk v Commissioner for Superannuation [1994] FCA 1063; (1994) 50 FCR 150; 33 ALD 420
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338; 24 ALR 307; 2 ALD 21
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441; 119 ALR 85
Federal Commissioner of Taxation v Brown [1999] FCA 1198; (1999) 99 ATC 4852; [1999] FCA 1198; 42 ATR 672
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 244; 58 ALR 305; 7 ALD 315
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577
Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181; (2005) 145 FCR 542
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490
Re Birdseye and Australian Securities and Investments Commission [2003] AATA 138
Re Matthews and Australian Securities Investments Commission and Ors [2010] AATA 649; (2010) 118 ALD 23
Re Nickson and Australian Securities and Investments Commission [2005] AATA 859; (2005) 41 AAR 218
Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 48 AAR 345
Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628; 75 ALR 513
Water Administration Ministerial Corporation v Jones [2005] NSWCA 181; (2005) 139 LGERA 198 (NSWCA)
Windshuttle v Commissioner of Taxation [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; [1993] FCA 553; 27 ATR 88

Chambers 21^st Century Dictionary, 1999, reprinted 2004, Chambers

DECISION AND REASONS FOR DECISION [2012] AATA 39

ADMINISTRATIVE APPEALS TRIBUNAL )
) 2011/1603
GENERAL ADMINISTRATIVE DIVISION )

Re WILLIAM MATTHEWS

Applicant

And AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
Respondent

DECISION

Tribunal: Deputy President S A Forgie
Date: 25 January 2012
Place: Melbourne
Decision: The Tribunal:

decides that the decision of the respondent dated 28 February 2011 is not reviewable by the Tribunal; and
refuses to extend the time within which the applicant may seek review of the respondent’s decision dated 21 January 2004 under s 54 of the Freedom of Information Act 1982.

S A Forgie
Deputy President

REASONS FOR DECISION

On 14 October 2003, Mr Matthews requested access to documents under the Freedom of Information Act 1982 (FOI Act). He made his request to the Australian Securities and Investments Commission (ASIC) and paid an application fee. ASIC decided he was liable to pay charges in respect of his request and in respect of the provision of access. The volume of documents captured by Mr Matthew’s request was estimated to be in the order of 35,000 pages of documents. ASIC estimated the charges in respect of his request on the basis that it would consider each page ($4,000) and the charges in respect of provision of access on the basis that it would copy and grant access to each page ($3,532.00). It added the two charges together and asked Mr Matthews for a deposit of $1,913 on charges totalling $7,652. Mr Matthews sought review of the charges as he was entitled to do and the time within which ASIC was obliged to process his request was extended under s 31 of the FOI Act while ASIC reviewed its decision on the charges. ASIC affirmed its decision and Mr Matthews did not seek review in the Tribunal. Instead, he paid the deposit but continued to express his view that the charges should be remitted on the basis that they were excessive and that the giving of access was in the general public interest or in the interest of a substantial section of it. His payment of the deposit meant that ASIC had to resume its consideration of his request.

2. ASIC initially decided that Mr Matthews was entitled to access to 197 pages and, after internally reviewing the decision, decided he was entitled to access to a further 159 pages making 356 pages in all. Exemption was claimed for each of the remaining pages of the documents coming within the request. After applying to the Tribunal for review, I decided that he was entitled to access to further documents.^[1] Mr Matthews again asked ASIC to review its decision regarding charges and it decided on 28 February 2011 that it had no power to make a further decision under the FOI Act. It did review its decision, though, on the basis that it was a review conducted outside the FOI Act. Mr Matthews sought review of it in this Tribunal.

3. I have decided that ASIC’s decision of 28 February 2011 is not reviewable by the Tribunal because it exhausted its power to do so in its decision of 21 January 2004 when reviewing its decision to impose charges in 2003. That is so even though I have also concluded that it calculated the deposit it required Mr Matthews to pay before it would resume consideration of his request on the wrong basis. It should have required him to pay only a deposit calculated on the basis of the charges in respect of the request and not on the basis of the total of the charges in respect of the request and those in respect of the provision of access. Despite what I regard as a mistake on the part of ASIC, the structure of the charges regime means that ASIC’s obligation to consider and reach a decision on his request was dependent upon whether Mr Matthews’ paid the charge or a deposit on it. He exercised some of the rights he had to have the decision reviewed but, instead of applying to the Tribunal, decided to pay the deposit. ASIC was then obliged to process his request and to take the steps necessary to find the documents, consider them, consult with affected third parties and reach a decision whether or not he would be granted access. Permitting ASIC to make a further decision imposing liability to pay charges would upset these obligations and the charges regime does not allow for it. I have explained my reasons in more detail below together with my reasons for refusing to extend the time within which Mr Matthews might seek review of the decision made on 21 January 2004. I have also observed that ASIC has not made a final assessment of charges under r 10 and that the decision which I believe it is required to make is not reviewable by this Tribunal.

BACKGROUND

14 October 2003: Mr Matthews requests access to documents

4. In summary, Mr Matthews requested access to:
“1 All documents in ASIC’s possession dated from 1^st January 2001 onwards, excluding documents which are publicly available, regarding the rationale for and implementation of ASIC Instrument CO 02/968 and Policy Statement 174 (PS 174) ...

All documents in ASIC’s possession regarding its investigations into Otter Gold, Allstate Explorations and Beaconsfield Gold excluding documents which are publicly available or which have been circulated to creditors and shareholders. The ASIC investigations I refer to are as follows:
1. Any ASIC investigations into the actions of external administrators of Allstate, initially referred to in your letter of complaint dated 8 October 2002 to the Australian Shareholders Association which was subsequently referred to ASIC. In particular, actions in relation to the March 2002 creditors meeting and preceding circular to creditors containing the administrators [sic] valuation model.
2. Any ASIC investigations with respect to Allstate Explorations and Otter Gold hedge book and published accounts initially referred to in my report to Greg Adams of ASIC dated 14 April 2003.”^[2]

17 October 2003: ASIC notifies Mr Matthews of liability to pay charges

5. On 17 October 2003, ASIC decided that Mr Matthews was liable to pay a charge “for the processing of ... [his] request” in accordance with s 29 of the FOI Act. It wrote to advise him that it estimated that 35,320 pages of documents^[3] came within his request. ASIC’s preliminary assessment of the charges that Mr Matthews would be liable to pay was $7,652.00. This represented:

Search and retrieval time:	8 hours x $15.00 per hour =	$ 120.00
Decision making time:	200 hours x $20.00 per hours =*	$4,000.00
Number of pages:	35,320 (approx.) pages x 10 cents per copy =	$3,532.00
Postage:		To be advised
*Total:*		*$7,652.00*
* Includes time spent consulting any third parties

I note that, on ASIC’s estimate of the number of documents coming within Mr Matthews’ request, it estimated the charges in relation to the provision of access on the basis that he would be granted access to every one of them.

6. Mr Matthews was invited to pay the charge in full or to pay a deposit amounting to 25% of the whole. ASIC then advised him that:
“In accordance with section 18(1)(b) of the FOI Act access to any document will only be provided upon receipt of the total charges due.”^[4]

7. ASIC advised Mr Matthews of his right to ask for review of the charges and the matters that it would take into account in considering whether to reduce the charges or not impose them. Those matters were:
“Under the FOI Act you may challenge the above assessment on the basis that it was incorrectly assessed, or you may wish to submit that it should be reduced or not imposed. In considering whether the charge should be reduced or not imposed, I am required to take into account whether the imposition of the charge will cause you financial hardship and whether, upon granting access, there is a benefit which would flow to the public, as opposed to any personal benefit which may flow to you. Your submission should address these issues and any other factor you wish to bring to my attention which may assist me in making my decision in this regard.”

ASIC told Mr Matthews:
“It is important that within 30 days of receipt of this notice you either:
(1) pay the charge or deposit; OR
(2) make a submission to me in writing stating that the charge has been wrongly assessed, or should be reduced, or should not be imposed, and setting out the reasons/grounds for your submission (addressing the issues mentioned above); OR
(3) advise me in writing that you wish to withdraw your request.
If I do not receive the required deposit or payment for the total charge, or a submission from you within 30 days of receipt of this notice, your request will be regarded as withdrawn.”^[5]

8. The letter ended by advising Mr Matthews that, in accordance with s 31 of the FOI Act, the processing of his request would be suspended from the day he received notice. Processing would continue on the day the charge was paid or a deposit was paid or ASIC decided not to impose the charge.

31 October 2003: Mr Matthews asks ASIC to remit charges

9. Mr Matthews responded in a letter dated 31 October 2003. He noted that he had brought numerous crimes to ASIC’s attention together with copious amounts of evidence and analysis to support his allegations that they had been committed. These crimes, Mr Matthews alleged, have arisen out of the administration of Allstate Explorations NL (Allstate) and have involved Otter Gold Limited (Otter Gold) and Beaconsfield Gold NL as well as a considerable number of people. He went on to ask for the charges to be waived:
“ That brings me to the crucial point regarding this waiver of charges submission. In reporting all of what I have to ASIC to date and indeed in seeking access to this FOI information for further examination my main goal is simply to see justice done for the benefit of the general public at large. It is clearly not in the public interest in letting these crimes go unpunished and leaving the perpetrators free to roam the streets (let alone the corridors of power of some major corporations) lest they continue on their merry ways of cheating, lying, stealing and above all corrupting. ... While I indeed may ultimately benefit (the word gain hardly applies) from the final and proper resolution to all the ASIC investigations (i.e. the restitution of the property stolen from Allstate shareholders) that clearly has not been my motivation for the past many months in uncovering and reporting all these other crimes to ASIC. The fact of the matter is I literally stumbled on these crimes and luckily because my background happens to be as an actuary specialising in financial analysis was able to analyse exactly what was going on. Sheer serendipity, I didn’t plan this whole thing, the criminals did, I have absolutely no hidden agenda. Once I discovered what had happened it was my duty as a citizen to report all of this to ASIC for action and that I did just as I would have reported a break in to the police. ... The bottom line is by all my hard work to date I have diligently and honestly fulfilled my obligations as a citizen above and beyond the call of duty to the great benefit of the community at large. Firstly by alerting ASIC to the activities of all these corporate criminals and then providing it with literally mountains of evidence to allow it to prosecute and rid us of them once and for all. Obviously it is absolutely critical for Australia that its investment markets are free of corporate crime and corruption otherwise the local community, not to mention the overseas investors, will soon view us as no better than a banana republic with all the damage that will entail to all our lives. ASIC needs to actively encourage the honest active cooperation of persons like myself and the other legitimate Allstate complainants ...
In conclusion I ask that ASIC treat all the work I have done so far to help it act in the public interest with some of the respect it clearly deserves. Therefore please waive the charges (I have already spent a small fortune in time and money to help ASIC to date) and let me examine all these FOI documents without undue delay and so to allow me to continue to help ASIC carry out its duties for the benefit of the public at large.”^[6]

5 December 2003: ASIC refuses Mr Matthews’ request to remit charges

10. ASIC refused Mr Matthews request to remit the charges and advised him of its decision in a letter dated 5 December 2003. In that letter, it acknowledged that Mr Matthews had brought material to its attention and that, as a result, it had gathered a substantial volume of documents. It was now, ASIC continued, a matter for it to assess the information before it and to consider whether it would take action. Addressing Mr Matthews’ submission that granting him access to the documents would be in the public interest, ASIC wrote:
“You have identified the benefit to the general public as seeing that the laws of the land are implemented and that the persons and companies that are the subject of your complaints to ASIC are prosecuted and convicted. However you have not shown how the making of the specific information contained in the documents more widely available would provide that benefit to the general public. You have also not demonstrated whether the benefit from the release of the information contained in the particular documents will flow to the general public or to a substantial section of the public.
...
Whilst I note your comments regarding the release of the information being in the general public interest, I note that, as you are a shareholder of Allstate, there is also evidence of a personal interest.
Decision
The comments you make in support of your claim for remission on public interest grounds do not, in my view, demonstrate how the release to you of the information would be in the general public interest or in the interest of a substantial section of the public.
In my opinion, and for the reasons stated above, there is no public interest in giving access to the material, which would warrant remission of the charge. ...”^[7]

11. ASIC concluded its letter by advising Mr Matthews that he could seek internal review of the decision if he were dissatisfied with it. If he chose to do so, he had to do so within 30 days of receiving the letter. ASIC then sent its letter to Mr Matthews by facsimile transmission on 5 December 2003.

22 December 2003: Mr Matthews requests internal review of ASIC’s decision

12. In his letter dated 22 December 2003, Mr Matthews asked ASIC to review its decision refusing to remit the charges it had imposed. His reasons for asking centred on the benefit that he argued would flow from his being given access to the documents.

21 January 2004: ASIC affirms its decision not to waive its charges

13. In a letter dated 21 January 2004, ASIC affirmed its decision to refuse Mr Matthews’ request that it remit the charges it had imposed.

24 November 2010: Mr Matthews asks for access to documents after the Tribunal reviewed ASIC’s decision refusing access to documents in accordance with Mr Matthews’ request

14. In a letter dated 24 November 2010, Mr Matthews referred to my earlier decision dated 27 August 2010^[8] in which I varied ASIC’s decision refusing to grant access to all of the documents coming within his request. He observed that ASIC had neither lodged an appeal from my decision nor contacted him to make arrangements to facilitate his having access to the documents to which I had found he was entitled to access.

7 December 2010: ASIC’s response

15. ASIC wrote to Mr Matthews on 7 December 2010 drawing his attention to s 18 of the FOI Act as it was enacted before its repeal by the Freedom of Information Amendment (Reform) Act 2010 (FOI Amendment Act). It then summarised previous events in this paragraph of its letter:
“On 31 October 2003, you requested that ASIC waive or reduce the assessed charges. On 5 December 2003, the primary decision maker refused a waiver of the assessed charges. On 22 December 2003, you requested an internal review of the decision dated 5 December 2003 refusing to waive the charges. On 21 January 2004, an internal review was conducted and the decision was made to refuse to waive the assessed charges, and you were advised of your review rights, including the right to make an application for review to the Tribunal.
Since your application for a waiver of the assessed charges was refused the AAT has made a decision on the application of a number of exemptions to the release of some of the documents the subject of your original FOI application to which the charges relate.
In those circumstances while a further application for a review of the assessed charges is not specifically provided for under the FOI Act ASIC is prepared to consider a further request should you wish to make such an application.
If you intend to make a further application for the waiver or reduction of this outstanding balance of the charges owing then you should make such an application in writing to me. Please note that as this reconsideration is not expressly provided for by the FOI Act, no review rights attach to this reconsideration. Any such application should outline the basis upon which you seek a reduction or waiver of the charges and provide the relevant information in support of the submissions that you may wish to bring to ASIC’s attention regarding your request for a waiver or reduction in the charges.”^[9]

22 December 2010: Mr Matthews asks ASIC to waive all charges

16. In his email dated 22 December 2010 to ASIC, Mr Matthews asked:
“... given the Tribunal’s judgement, the clear public interest (in all these matters a rather minor understatement) and of course all of the other quite extraordinary circumstances in relation to this FOI [request] that ASIC please waive all charges and return my $1,913 deposit. Note I will not be asking for any accrued interest on it even though it has been 7 years and so that alone would amount to well over $1,000.”^[10]

28 February 2011: ASIC’s decision

17. On 28 February 2011, an officer of ASIC wrote to Mr Matthews saying:
“I am advised that Mr Stephen Yen, Special Counsel of ASIC has determined as follows:

We are not satisfied that we have the power to waive the charges under the FOI Act in circumstances where a waiver application has already been made previously (by you in 2003), considered by ASIC and refused.
In any event were we able to consider a further waiver request we would not be satisfied on the facts of this application that there is sufficient public interest in the documents in question to meet the public interest component of a waiver application as provided for in section 29(5) of the FOI Act.
The documents the subject of the application relate to the development of a long standing public policy. There is no current controversy about that policy. The submissions of the applicant in relation to the Allstate/Beaconsfied matter are not to the point. The normal rule about charges should apply in this case.

Given that you have already paid a deposit of $1300 it is my understanding that the balance of the charges owing is $6352.00.”^[11]

21 March 2011: Mr Matthews requests internal review of ASIC’s decision

18. On 21 March 2011, Mr Matthews asked ASIC to review its decision. He referred to the history of the matter and developed his argument that granting access to the documents was in the public interest.

22 March 2011: ASIC declines request

19. On 22 March 2011, ASIC wrote to Mr Matthews:
“... The decision of which you were advised in my email to you of 28 February 2011 was a decision made on review as it was a review of the original decision to decline to waive the charges as made in 2003. As noted this was not a review as provided for in the FOI Act but rather an administrative review we were prepared to undertake given your request, the passage of time since the original waiver decision and the intervening decision of the AAT.
I can see no provision of the FOI Act that provides you with a further right of review and in those circumstances it is our view that there is no basis for a further review in this instance.”^[12]

LEGISLATIVE BACKGROUND

Legislative provisions those in force before 1 November 2010

20. With effect from 1 November 2010,^[13] the FOI Act was significantly amended by the Freedom of Information Amendment (Reform) Act 2010^[14] (FOI Amendment Act). Among the provisions amended was s 29^[15] relating to the imposition of charges. That amendment is of no significance in this case but, in any event, it does not apply as it only applies to requests for access to documents made under s 15 of the FOI Act and received on or after 1 November 2010. That is the effect of s 3 and item 41(a) of Part 2 of Schedule 6 of the FOI Amendment Act.

21. The Freedom of Information (Fees and Charges) Regulations 1982 (Charges Regulations) were also amended with effect from the same date by the Freedom of Information (Fees and Charges) Amendment Regulations 2010 (No 1) (Amendment Regulations). Again, they applied only to requests for access made under s 15 of the FOI Act and received by the agency or Minister after 31 October 2010.^[16]

22. As Mr Matthews had made his request some seven years before the amendments,^[17] I have considered this matter on the basis of the FOI Act and the Charges Regulations as they applied before 1 November 2010.

Right of access

23. Subject to the other provisions of the FOI Act, s 11(1) provides that:
“... 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.”

24. The right to obtain access to documents meeting this description is dependent upon a person’s making a request that complies with the requirements set out in s 15(2).^[18] It is also dependent upon that person’s having paid “... any charge that, under the regulations, is required to be paid ...”.^[19] Once these two criteria are satisfied, s 18(1) provides that “... the person shall be given access to the document in accordance with this Act.” Section 18(2) emphasises what is already expressly stated in s 11(1) i.e. that the right of access is limited to documents that are not exempt documents.

The form in which access is given

25. Section 20(1) of the FOI Act sets out the forms in which a person may be given access to a document. Those forms take account of the fact that the word “document” is given a very broad meaning in s 4(1).^[20] They are a reasonable opportunity to inspect the document, provision of a copy of the document, viewing or hearing images or sounds where the nature of the document permits that or a written transcript of words that are recorded or that appear in a shorthand or codified form.

26. In most cases, an applicant who requests access in a particular form must be given access in that form.^[21] An agency or Minister may refuse to do so if to do so would unreasonably interfere with its operations or his or her functions, would be detrimental to the preservation of the document or, having regard to its physical nature inappropriate or involve certain infringements of copyright.^[22]

27. An agency or Minister may defer the provision of access in the limited range of circumstances set out in s 21.

The time within which an agency or Minister must make a decision on a request

28. Once an agency or Minister has received a request, it or he or she must:
“(b) as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer provision of access to a document).”^[23]

That time may be extended under s 15(6):
“Where, in relation to a request, the agency or Minister determines in writing that the requirements of section 26A, 27 or 27A make it appropriate to extend the period referred to in paragraph (5)(b):
(a) the period is to be taken to be extended by a further period of 30 days; and
(b) the agency or Minister must, as soon as practicable, inform the applicant that the period has been so extended.”

The decision to impose a charge and assessment of that charge

29. Section 94(1) of the FOI Act provides that regulations may be made:
“... not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular, making provision for or in relation to:
(a) the making of charges of amounts, or at rates, fixed by or in accordance with the regulations in respect of requests for access to documents or in respect of the provision of access to documents (including the provision of copies or transcripts) in accordance with this Act, including requiring deposits on account of such charges; and
(b) the officers who may give decisions on behalf of an agency.”

Section 94(2) provides that regulations may be made in relation to particular aspects of charging and charges. Section 94(3) addresses charges that are applicable when, as a result of a request, access is given to a document to which the applicant would not be entitled to access under the FOI Act.

The decision that an applicant is liable to pay a charge

30. The power to make a decision to impose a charge is found in r 3(1) of the Charges Regulations:
“Where an applicant has made a request for access to a document of an agency or an official document of a Minister, the agency or Minister may make a decision whether the applicant is liable to pay, in respect of the request or in respect of the provision to the applicant of access to the document, any of the charges applicable under these Regulations, other than an application fee.”

An application fee is the fee payable under the Charges Regulations in respect of the request.^[24] It is a fee and not a charge and, although it is in respect of a request, is different from a charge in respect of a request. The two are distinguished in r 3(1) but the distinction is also apparent from a reading of ss 4(8), 15(2)(e), 29 and 30A of the FOI Act.

Calculation of the charges

A. General outline

31. Once an agency or Minister has decided that an applicant is liable to pay a charge, then the amount of that charge is generally calculated by reference to the amount or the rate set out in the Schedule to the Charges Regulations.^[25] The charges are divided into two categories. Those set out in Part 1 of the Schedule to the Charges Regulations apply in respect of a request for access to a document. Part II provides for charges in respect of the provision of access to a document to which a request relates.^[26]

32. In certain circumstances, charges do not apply in respect of a request for access to a document containing information relating to a claim for, or decision in relation to, a prescribed benefit. A “prescribed benefit” is a pension, allowance or benefit payable under the Seamen’s War Pensions and Allowances Act 1940, the Social Security Act 1991, the Student Assistance Act 1973 or the Veterans’ Entitlements Act 1986. It also encompasses “... any payment of a like nature the purpose of which is to provide income support to persons of inadequate means”.^[27]

The charges

33. Mr Matthews did not request documents containing personal information about himself, documents that had to be transcribed before ASIC could make a decision on the request or documents containing information that was not in a discrete form. Therefore, only items 2 and 5 of Part I of the Schedule to the Charges Regulations apply to Mr Matthews. These read:

*Item No*	*Charge*	*Amount or rate of charge*
2	Where the request relates to a document other than a document in relation to which a charge is applicable under item 2A or 3 – a charge in respect of the time spent by the relevant agency or the relevant Minister in searching for or retrieving the document	$15.00 per hour
2A	...	...
3	...	...
4	...	...
5	A charge in respect of the time that is spent (other than on an application under section 54 of the Act for the review of a decision) by an agency or Minister in deciding whether to grant, refuse or defer access to a copy of the document with deletions, including the time spent (a) in examining the document; (b) in consultation with any person or body; (c) in making a copy with deletions; or (d) in notifying any interim or final decision on the request	$20.00 per hour
6	...	...

34. Part II of Schedule 1 sets out the charges in respect of the provision of access to a document to which a request relates.^[28] I will refer to only two. A charge of 10 cents per page is chargeable where access is given in the form of the provision of a photocopy.^[29] Where access is given in the form of an opportunity to inspect a document under the supervision of an officer, the charge is $6.25 per half hour of the time taken for inspection.^[30]

C. Estimating the charges

35. In certain circumstances, an agency or Minister may estimate the charges that an applicant is liable to pay. Those circumstances arise in three different situations:
(1) “Where, at the time (in this subregulation referred to as the ‘relevant time’) that an agency or a Minister proposes to notify an applicant under section 29 of the Act that he is liable to pay a charge in respect of the request that he has made for access to a document, the agency or Minister has not taken any or all of the steps necessary to enable the agency or Minister to make a decision on the request, the agency or Minister may fix, as the amount of the charge, such amount as would be the amount ascertained in accordance with the Schedule in respect of the charge if, at the relevant time, all steps that would, in the opinion of the agency or Minister, be necessary to enable a decision to be made on the request had been taken by the agency or Minister;^[31]
(2) “Where, at the time (in this subregulation referred to as the ‘relevant time’) that an agency or a Minister proposes to notify an applicant under section 29 of the Act that he is liable to pay a charge (other than a charge in relation to which subregulation (3) applies) in respect of the provision of access to a document, the agency or Minister has not taken all or any of the steps necessary to enable the applicant to be given access to the document, the agency or Minister may fix, as the amount of the charge, such amount as would be the amount ascertained in accordance with the Schedule in respect of the charge if, at the relevant time, all steps that are, or would, in the opinion of the agency or Minister, be, necessary to enable the applicant to be given access to the document had been taken by the agency or Minister”;^[32]
(3) “Where:
(a) access to a document is to be given to an applicant in the form of an opportunity to inspect the document under the supervision of an officer; and
(b) the relevant agency or the relevant Minister makes a decision that the applicant is liable to pay a charge in respect of the period during which the officer is to supervise the inspection;
the relevant agency or the relevant Minister may fix, as the amount of the charge, such amount as would be the amount ascertained in accordance with the Schedule in respect of the charge if:
(c) at the time that the decision is made, the applicant had availed himself of the opportunity so to inspect the document; and
(d) the period during which the officer supervised the inspection was such period as is determined by the agency or Minister to be the period reasonably required for the inspection.”^[33]

36. Where an agency or Minister has, “... in accordance with subregulation (1), (2) or (3), fixed an amount in respect of a charge that an applicant is liable to pay ...”, the applicant is liable to pay that amount unless it is adjusted under r 10 of the Charges Regulations.^[34]

Deposits

Regulation 12(1) provides:

“Where:
(a) an agency or a Minister has made a decision that an applicant is liable to pay, in respect of a request or in respect of the provision of access to the document to which the request relates, a charge or charges other than a charge or charges applicable by virtue of regulation 6 or 7 [sic];^[35] and
(b) the amount, or the estimated amount, of that charge or of those charges exceeds $25;
the agency or Minister may make a decision whether the applicant is required to pay a deposit on account of the charge or charges that the applicant is liable to pay under these Regulations.”

Regulation 12(2) sets out the maximum amount that can be required as a deposit. That maximum amount is determined by reference to the amount of the charges. The amount of the deposit will, if the estimated charges exceed $25 but not $100, be $20 or, if they do exceed $100, be 25% of the estimated amount.^[36]

38. Where an agency or Minister requires an applicant to pay a deposit on account of a charge or charges, it or he or she must notify the applicant to that effect in writing. The notice must specify the amount of the deposit.^[37] That notice must be given to the applicant at the same time as the notice is given to him or her regarding the charge or charges.^[38]

39. Once an applicant has paid a deposit on account of a charge or charges, that deposit is not refundable, either in whole or in part, “... otherwise than in compliance with a decision to remit in whole or in part the charge or charges.”^[39]

E. Adjusting charges estimated under regulation 9

40. Where an agency or Minister has made an estimate of the charges in accordance with rr 9(1), (2) or (3), that agency or Minister must adjust that estimate if:
“after:

(i) in the case of a charge in respect of a request for access to a document – the agency or Minister has made a decision on the request;
(ii) in the case of a charge (other than a charge in respect of which an amount has been fixed in accordance with subregulation 9(3)) in respect of the provision of access to a document – the agency or Minister has taken all steps necessary to enable the applicant to be given access to the document; or
(iii) in the case of a charge in respect of the provision of access to a document, being a charge in respect of which an amount has been fixed in accordance with subregulation 9(3) – the applicant has had access to the document;

it is ascertained that the amount so fixed in respect of the charge does not equal the amount (in this regulation referred to as the ‘prescribed amount’) that, but for regulation 9, the applicant would, under these Regulations, be liable to pay in respect of the charge;
the agency or Minister shall, subject to subregulation (2), fix, as the amount of the charge, an amount equal to the prescribed amount.”^[40]

The effect of r 10(2) is that the agency or Minister may increase the charge beyond that estimated under rr 9(1), (2) or (3) if making a decision to grant a request for access to a document but may not do so if deciding not to grant that request in its entirety.

41. Where the adjusted amount is more than the estimated amount, the amount of the adjusted amount already paid by an applicant is taken to be a deposit on account of the adjusted charge.^[41] Where the adjusted amount is less than the estimated charge, the applicant is entitled to a refund of the excess of the estimated amount already paid by that applicant.^[42]

42. Is the agency or Minister required to give the applicant a written notice that the amount of the charge has been adjusted? The effect of s 29(1) of the FOI Act is that the agency or Minister must give the applicant a written notice after deciding that “an applicant is liable to pay a charge” and must include in that notice information on how to challenge the preliminary assessment. An agency or Minister certainly makes such a decision before making an estimate under r 9 but they are not doing so under r 10 when fixing the final charge. Regulation 10 is drafted on the assumption that an applicant is already liable to pay a charge and r 9 is drafted on the same assumption. The decision has been made and the agency or Minister proposes to notify the applicant of the liability in the case of r 9. Only a readjustment of the amount an applicant is required to pay is the case in r 10. That is to say, only the amount of the charge is varied; not the liability to pay a charge. As 10(3) provides, once an amount has been fixed under r 10(1) “... the applicant is liable to pay that amount in respect of the charge in lieu of the amount fixed in respect of the charge in accordance with subregulation 9(1), (2) or (3), as the case may be.” The extent of the liability is altered but the liability to pay a charge at all continues unaltered. No new liability arises to replace the liability that arose as part of the decision-making process leading to the preliminary assessment of charges. Therefore, the notification obligations set out in s 29 do not arise following an adjustment of charges under r 10 and s 29 does not confer any entitlement upon an applicant to contend that the charge should be reduced or not imposed. Consequently, an applicant has no consequential review rights under ss 54 and 55.

43. In the scheme of the provisions relating to charges, that makes sense. The arguments about liability and quantum are intended to be dealt with at the outset after the preliminary assessment. After all, unless the request is granted in its entirety, the charges estimated in that preliminary assessment cannot be increased and so represent the most that can be recovered from an applicant. Regulation 10 allows the agency or Minister to adjust the charges but within very confined parameters.

Written notice of charges

A. General outline

44. Section 29(1) begins by providing that:
“Where, under the regulations, an agency or Minister decides that an applicant is liable to pay a charge (not being an application fee) in respect of a request for access to a document, or the provision of access to a document, the agency or Minister must give to the applicant a written notice ...”.

That notice must set out a number of matters. Among them are:
“(a) that the applicant is liable to pay a charge; and
(b) the agency’s or Minister’s preliminary assessment of the amount of the charge, and the basis on which the assessment is made; and
(c) ...
(d) ...
(e) the amount of any deposit that the agency or Minister has determined under the regulations, that the applicant will be required to pay if the charge is imposed;
(f) ...
(g) ...”

Applicant may contend charge wrongly assessed or should not be imposed

45. Section 29 does not specifically provide that an applicant may challenge the assessment or ask the agency or Minister to reduce or not impose a charge. Rather, it does so implicitly when it requires an agency or Minister to give an application a written notice setting out various pieces of information. Section 29(1)(c) provides that the notice must tell an applicant that he or she may contend that the charge has been wrongly assessed, or should be reduced or not imposed. Second, s 29(1)(f) provides that the notice must tell an applicant that he or she:
“... must, within the period of 30 days, or such further period as the agency or Minister allows, after the notice was given, notify the agency or Minister in writing:
(i) of the applicant’s agreement to pay the charge; or
(ii) if the applicant contends that the charge has been wrongly assessed, or should be reduced or not imposed, or both – that the applicant so contends, giving the applicant’s reasons for so contending; or
(iii) that the applicant withdraws the request for access to the document concerned; ...”

46. If the applicant fails to notify the agency or Minister that he or she takes one or other of the courses set out in s 29(1)(f), that applicant is taken to have withdrawn the request for access to the document concerned. In other words, an applicant must be proactive and either accept liability to pay the charge, contend that it is incorrect or should not be paid or not proceed with the request.^[43] As is apparent from s 29(1)(f), an applicant has 30 days within which to do that and that period may be extended.

The agency or the Minister to consider applicant’s contention that the charge should be reduced or not imposed

47. Section 29(4) provides that:
“Where the applicant has notified the agency or Minister, in a manner mentioned in subparagraph (1)(f)(ii), that the applicant contends that the charge should be reduced or not imposed, the agency or Minister may decide that the charge is to be reduced or not to be imposed.”

48. Section 29(5) complements s 29(4) by providing:
“Without limiting the matters the agency or Minister may take into account in determining whether or not to reduce or not to impose the charge, the agency or Minister must take into account:
(a) whether the payment of the charge, or part of it, would cause financial hardship to the applicant, or to a person on whose behalf the application was made; and
(b) whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public.”

49. The agency or Minister must take all reasonable steps to notify the applicant of a decision on the amount of charge payable as soon as practicable after the applicant notifies it, him or her that he or she contends that the charge should not be imposed or should be reduced. In any event, a decision must be made within 30 days of the applicant’s notification.^[44]

50. Where the agency or Minister rejects the applicant’s contention, that agency or Minister must give that applicant written notice of the decision and of the reasons for making it.^[45] That notice must also give the applicant “appropriate information” about his or her rights to ask for review of the decision and to make a complaint to the Ombudsman as well as the procedure for exercising those rights.^[46]

51. If, within that 30 days, the applicant does not receive notice of a decision on the amount of charge payable, the agency’s principal officer or the Minister is taken to have made, on the last day of the 30 day period, a decision to the effect that the amount of the charge is the amount of the agency’s or Minister’s preliminary assessment.^[47]

Agency or Minister must not impose a charge until time for notification of contention expired or decision made on any contention notified

52. The agency or Minister is not permitted to impose a charge until either the person notifies that he or she is taking one of the three courses set out in s 29(1)(f) or the 30 day or extended period expires.^[48]

Certain periods are disregarded for the purposes of processing a request

53. Section 31 provides that certain periods of time are to be disregarded when calculating the time limits which would otherwise apply under the FOI Act:
“Where an applicant receives a notification under subsection 29(1) or (6) before the day on which the period of 30 days mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), in relation to that request expires or, but for the operation of this subsection, would expire, being a notification to the effect that the applicant is liable to pay a specified charge in respect of that request, there shall be disregarded, in the computation of that period, each day occurring during the period commencing on the day on which that notification is received by the applicant and ending on the day that is, under subsection (3), the relevant day in relation to that request.”

54. Section 31(3) goes on to provide how the “relevant day, in relation to a request made by an applicant to whom a notification has been given under section 29” is to be determined for the purposes of s 31(1). Four circumstances are provided for. The first occurs when an applicant pays the charge of which he or she has been notified or the deposit he or she is required to pay.^[49] The second occurs when an applicant pays neither but “seeks to have the charge reduced or not imposed under s 29”.^[50] The third occurs when an applicant pays neither but, under s 54 of the FOI Act, asks the agency or Minister to “review the decision to impose the payment of a charge”.^[51] The fourth occurs when an applicant pays neither but makes an application to the Tribunal “under section 55 for a review of the decision to impose the payment of a charge”.^[52]

Review of the decision-maker’s decisions

Internal review

55. Section 54(1) provides that, where a decision has been made in relation to a request to an agency or Minister and the decision-maker is neither the agency’s principal officer nor the Minister and the decision is one of those it describes, an applicant may request a review of that decision. Among the decisions of which an applicant may request review is “a decision under section 29 relating to the imposition of a charge or the amount of a charge”.^[53] The other decisions of which review may be sought under s 54(1) are:
“(a) a decision refusing to grant access to a document in accordance with a request; or
(b) a decision granting access to a document but not granting, in accordance with the request, access to all documents to which the request relates; or
(ba) a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or
(c) a decision to defer the provision of access to a document; or
(d) ...
(e) a decision under section 30A relating to remission of an application fee; or
(f) a decision to grant access to a document only to a qualified person under subsection 41(3); or
(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48;
...”

56. An applicant does that by applying to the agency or Minister in writing within the time limit set out in s 54(1A). In most cases, the time within which an applicant may apply for review is 30 days but it may be longer. Time limits are set out in s 54(1A):
“The application must be made:
(a) in the case of a decision of a kind mentioned in paragraphs (1)(a), (c), (d), (e), (g) and (h) – within 30 days, or such further period as the agency allows, after the day on which the decision is notified to the applicant; or
(b) in the case of a decision of a kind mentioned in paragraph (1)(b), (ba) or (f):
(i) within 30 days, or such longer period as the agency allows, after the day on which the decision is notified to the applicant; or
(ii) within 15 days after the day on which the access referred to in that paragraph was granted;
whichever period is longer.”

Application to the Tribunal for review

57. Where an applicant is entitled to apply for review of a decision under s 54, he or she must do so first. He or she may only apply to the Tribunal for review of the decision made on that review.^[54] Subject to that qualification, a person may apply for review of decisions set out in s 55(1). They include decisions of the sort set out in s 54(1) and I will not repeat them. Provision is made for the time within which an application must be made^[55] and for circumstances in which an agency or Minister has not made a decision under s 54^[56] or the applicant has not received notice of a decision on a request made in accordance with s 15.^[57]

Charges to be paid before access is to be given

58. In most cases, an applicant must pay any charges before access is granted to the document. That is the effect of r 11(1). The only exception applies to a charge for inspection of documents referred to in Item 1 of Part II of the Schedule to the Charges Regulations and then only when the agency or Minister has not estimated those charges under r 9(3). That is the effect of r 11(2).

SUBMISSIONS REGARDING THE TRIBUNAL’S JURISDICTION

59. Mr Matthews challenged the whole process by which ASIC had made its decisions relating to charges. He maintained that they had been improperly imposed and pointed out that he had continued to challenge them over the years.

60. ASIC submitted that the Tribunal has jurisdiction to review only the decision it made under s 54 on 21 January 2004 refusing to reduce or not impose the charges. It rejected any suggestion that the Tribunal has jurisdiction to review the decision dated 28 February 2011 and, at a hearing, developed and expanded upon the following points:
(1) The decision made by a delegate of ASIC on 5 December 2003 is not reviewable by the Tribunal because, under s 55(2) of the FOI Act, that decision had to be reviewed by ASIC under s 54 before it could be reviewed by the Tribunal:
(a) the Tribunal only has jurisdiction to review the decision made by ASIC under s 54;
(2) The decision made by a delegate of ASIC on 21 January 2004 is reviewable by the Tribunal but Mr Matthews did not apply for its review within time:
(a) relying on the principles set out in cases such as Hunter Valley Developments Pty Ltd v Cohen^[58] (Hunter Valley), ASIC submitted that the time within which Mr Matthews might apply to this Tribunal for review of the decision should not be extended because:
(i) a seven year delay is extensive and Mr Matthews has not offered an explanation for that delay;
(ii) Mr Matthews would not suffer any significant prejudice were he to be denied an extension. He would not be prevented from prosecuting a claim. He does not claim that he cannot pay the charges;
(iii) the charges relate to ASIC’s work in responding to Mr Matthews’ request which I have described in an earlier decision as “an enormous task” and as “overwhelming”;^[59]
(iv) to the extent that the merits of the substantive application are relevant, ASIC contends that access to documents relating to the drafting of a policy document in 2003 would not be in the general public interest. Putting aside public interest, the scheme of the FOI Act is that the right of access is subject to the requirement to pay the relevant charges;
(v) in response to Mr Matthews’ submission that I had rejected 90% of its claims for exemption, ASIC noted that, on the third day of the hearing, Mr Matthews withdrew that part of his application for review in so far as it related to the development and implementation of ASIC Instrument CO 02/968 and Policy Statement 174 (PS 174). That part of his application related to 900 documents or approximately 8,500 pages of material;
(3) The decision dated 18 June 2004 that ASIC made in relation to Mr Matthews’ request under the FOI Act contained a “final assessment of charges”:
(a) Mr Matthews has already applied for the Tribunal to review the decision and the FOI Act does not permit a second application for review; and
(4) The Tribunal does not have jurisdiction to review the decision dated 28 February 2011 that ASIC made after its reconsideration of the charges because that was a decision made not “under” s 29 of the FOI Act but under s 11(4) of the Australian Securities and Investments Commission Act 2001 (ASIC Act):
(a) a decision is made “under” an enactment if there is a link of substance between what is done and the power given under the enactment;^[60]
(b) ASIC had already made a decision on charges on 5 December 2003 and affirmed it on 21 January 2004 and had done so according to the detailed and prescriptive scheme provided in the FOI Act and Regulations;
(c) that scheme left no room for Mr Matthews to have a second opportunity to contend that the charges should be reduced or not imposed;^[61]
(d) ASIC’s decision dated 28 February 2011 was not made “under” s 29 of the FOI Act but under s 11(4) of the ASIC Act, which confers power on ASIC “to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions”;
(e) ASIC’s consideration of whether it had power to revisit the charges decision was incidental to its performing its functions under the corporations legislation as provided by s 11(1) of the ASIC Act^[62] but was not a “decision” that was reviewable because it was not a final and operative decision;^[63] and
(f) a decision made under s 11(4) of the FOI Act is not reviewable by the Tribunal under either s 55 of the FOI Act or s 244 of the ASIC Act.^[64]

CONSIDERATION REGARDING THE TRIBUNAL’S JURISDICTION

The charges regime

61. The charges regimen established by the FOI Act and the Charges Regulations first requires that a decision be made that the person requesting access to a document under the FOI Act is liable to pay a charge. That requires the decision-maker to decide whether the person has requested a document containing information relating to a claim for, or a decision relating to, a prescribed benefit.^[65] If that is the case and provided the conditions in r 6(2)(b) have been met, the effect of r 6 is the person is not liable to pay a charge and the decision-maker’s task is at an end.

62. If that is not the case, the decision-maker must then decide whether the person is liable to pay a charge. Liability is not imposed by the Charges Regulations or by the FOI Act but arises from a decision made by the agency or Minister under the Charges Regulations. This follows from the terms of s 29(1) and r 3(1). Section 29(1) provides for notification to the applicant “Where, under the regulations, an agency or Minister decides that an applicant is liable to pay a charge ... in respect of a request for access to a document, or the provision of access to a document ...”. Regulation 3(1) provides that, where an applicant has requested a document, “... the agency or Minister may make a decision whether the applicant is liable to pay, in respect of the request or in respect of the provision to the applicant of access to the document, any of the charges applicable under these Regulations ...”. No criteria are prescribed to assist the decision-maker in deciding whether or not to impose liability. It would be expected that he or she would be guided by the two criteria specified in s 29(5) in relation to the remission of charges but, as s 29(5) itself recognises, they need not be the only criteria to which the decision-maker has regard. Others would include the purpose of the FOI Act. They might include an assessment of whether the administrative costs of imposing and collecting charges grossly outweigh the amount recovered. It would need to be kept in mind though that, consistently with Parliament’s intention to extend the Australian community’s right of access to information in the possession of the Commonwealth Government, the charges regime was not developed on the basis of full cost recovery.

63. Before deciding whether liability is to be imposed for a charge, the decision-maker must decide whether he or she is considering liability in respect of a request for access to a document or a charge in respect of the provision of access to a document. That is essential because they are separate charges and, except in limited circumstances where it is not necessary to do so,^[66] are dealt with separately. I will now set out my reasons for reaching that view.

64. Both the FOI Act and the Charges Regulations distinguish a charge in respect of a request and a charge in respect of the provision of access to a document.^[67] The distinction is made in the regulation making power in s 94(1) of the FOI Act^[68] and in s 29(1) when providing for the applicant to be notified of a decision that an applicant is liable to pay a charge “... in respect of a request for access to a document, or the provision of access to a document ...”. It appears also in r 4 when it provides that the charges set out in Part I of the Schedule to the Charges Regulations are applicable in respect of a request for access to a document and those in Part II in respect of the provision of access to a document. The distinction is repeated in r 9 when it provides for estimates of charges and r 10 when it provides for adjustment of that estimate.

65. The regime of preliminary assessment of charges provided for in s 29(1)(b) of the FOI Act and implemented by r 9 of the Charges Regulations makes separate provision for assessments of the two types of charges. Regulation 9(1) refers to the situation in which an agency or Minister proposes to notify a person that he or she is “liable to pay a charge in respect of a request” but has not taken any or all of the steps to make a decision on that request. The agency or Minister may fix, as the amount of the charge:
“... such amount as would be the amount ascertained in accordance with the Schedule in respect of the charge if, at the relevant time, all steps that would, in the opinion of the agency or Minister, be necessary to enable a decision to be made on the request had been taken by the agency or Minister.”

66. Regulation 9(2) separately provides for the assessment of a charge in respect of the provision of access to a document where “... the agency or Minister has not taken any or all of the steps necessary to enable the applicant to be given access to the document ...”. That might be read as assuming that a decision has been made to give access to the document or it might be read as permitting an estimate to be made before a decision on the request has been made at all i.e. at the same time as an estimate is made of the charges in respect of the request itself. At either point in time, it could be said that the agency or Minister has not taken steps necessary to enable the applicant to be given access to the document because a decision to do so is an essential prerequisite to the provision of access. It seems to me that it is open to a decision-maker to make that estimate at either point in time but, whichever is chosen, it must be accompanied by a decision that the applicant is liable to pay a charge in respect of the provision of access. That is implicit in s 29. An agency or Minister may decide that an applicant is liable to pay a charge be it a charge in respect of the request or a charge in respect of the provision of access. Both decisions may be made at the same time and, if they are, the agency or Minister may comply with the obligations under s 29 (including the obligation to give a preliminary assessment of the amount of the charges) in a single notice. If not made at the same time, the agency or Minister must give two separate notices under s 29 and give a preliminary assessment of each charge.

67. When providing for deposits, r 12 also makes the distinction. It might be thought that r 12(1) permits an agency or Minister to require the payment of one deposit in respect of both types of charges when it provides that they may require the applicant to pay “a deposit on account of the charge or charges” (emphasis added). I do not think that it is intended to be read in that way. The provision begins with a clear distinction between the two types of charges. Its subsequent reference to the “charge or charges” is not a reference to the situation in which liability to pay a charge of one type has been imposed and another situation in which liability to pay both types has been imposed. What r 12(1) does is to separate the two types of charges. It then recognises that liability to pay more than one charge of each type may be imposed. As r 3(1) provides, a decision may be made “... whether the applicant is liable to pay, in respect of the request or in respect of the provision of access to the document, any of the charges applicable under these Regulations ...” (emphasis added). Regulation 4 also makes it apparent that more than one charge may be fixed in respect of each type of charge for it refers to “the charges ... applicable in respect of a request for access to a document” and “the charges ... applicable in respect of the provision of access to a document to which a request relates.” Therefore, when r 12(1) provides that an “... agency or Minister may make a decision whether the applicant is required to pay a deposit on account of the charge or charges that the applicant is liable to pay under these Regulations”, it is providing that they may make such a decision to pay a deposit on account of the charge or charges that the applicant is liable to pay in respect of a request or in respect of the provision of access. It is not providing that they may add together the charge or charges imposed for both types of charges and calculate the deposit paid on the basis of the total amount of charges relevant to dealing with the request and giving access.

68. That this is so is apparent from s 31 of the FOI Act. Section 31(1) extends the 30 day time period allowed in s 15(5)(b) for the agency or Minister to take all reasonable steps to enable an applicant to be notified of a decision on the request or the further period allowed under s 15(6). Section 15(5)(b) relates only to a decision on the request and not to the provision of access to a document. Section 31(1) extends that time limit when the agency or Minister gives a notification “... to the effect that the applicant is liable to pay a specified charge in respect of that request ...” (emphasis added). It makes no reference to a charge in respect of the provision of access and nor would it because ss 15(5)(b) and (6) are concerned only with the time within which an agency or Minister must notify an applicant of a decision on the request. They are not concerned with the provision of access even though a decision on the request to grant access is an essential prerequisite to the provision of access. Time is not disregarded under s 31 if liability to pay charges in respect of the provision of access has been fixed and no deposit has been paid.

69. This interpretation is also supported by practical considerations. Some requests for access to documents may seek access to only a handful of documents. It may be possible to know at the outset whether the request will be granted in relation to all or any of the documents. If that is the case, it may be possible at the practical level to assess both charges in relation to the request for access under r 9(1) and charges in relation to the provision of access to the documents under r 9(2).

70. Where, as in this case, the request involves a large number of documents and they are likely to lead to a large number of claims for exemption, it would also be possible to make both assessments at the same time but only if the decision-maker liaises with the officers in the agency who have responsibility for the functions to which the requested documents relate. They will not only have a fair idea of the number of documents estimated to come within the terms of the request but also have a fair idea of whether there are any “problems” with disclosure and the number or percentage of documents associated with those problems. It will be the decision-maker’s task to decide whether “problems” mean that exemptions can or should be claimed in respect of the documents and to estimate the number of documents for which exemption is likely to be claimed. The estimate of the charges in relation to the provision of access will be made on the basis of that number and not on the basis of the number of documents coming within the request.

71. Difficulties in making that estimate might mean that an agency or Minister might want to postpone estimating the charges in relation to the provision of access and make only the estimate relating to the request. An applicant would not be prejudiced for he or she would know the number of documents estimated to come within the request and could readily find out from the Charges Regulations on the internet what the charges were likely to be if access were given to all of the documents requested. Separation of the charges in that way would mean that an agency or Minister would have to give two separate notices of the charges under s 29 and an applicant could seek their review on two separate occasions.

72. The interpretation is also supported by the way in which the individual charges are set. They are set by reference to what actually happens in the decision-making or access-giving process. Therefore, Part I of the Schedule to the Charges Regulations sets out an hourly rate for the time spent in undertaking the steps necessary to make a decision i.e. the charges “in respect of the request”. Part II sets out the charges applicable to the tasks of actually providing access and so “in respect of the provision of access to a document”.

73. The charges regime permits the imposition of charges for work actually done and for access actually given but not for work not done and access not given. In providing for the payment of a deposit in respect of a request, the charges regime enables an agency or Minister to recover that deposit before it proceeds to undertake the work associated with making a decision on the request. The same is so when it requires payment of a deposit for the provision of access. It may be that it will not recover the remaining 75% of those charges until it is ready to give access but, in providing for a deposit of that amount and making it not refundable,^[69] an applicant making a request is required to show good faith.

74. The applicant also has an opportunity to understand the number of documents to which he or she has been granted access before deciding whether to ask for copies or the opportunity to inspect them. It might well be that this means that an applicant pays a deposit of 25% of the charge or charges in respect of the request and can then walk away from paying the remaining 75% by declining to proceed to actually have access to the documents. That is possible but the chances of its occurring are greatly reduced by the agency or Minister’s having informal discussions with an applicant at the outset when large volumes of documents are involved. Those discussions might well occur before any estimate of the charges is made. They would focus on the nature and type of the documents and, when advised that their volume was considerable, might well lead to an applicant’s fine tuning the request. That is not a process that is intended to deny an applicant rights under the FOI Act but to ensure that he or she gains access to what he or she wants and that the agency or Minister carries out only the work that is required to meet the applicant’s wishes. If an applicant is looking for substance, he or she is not assisted by reading countless documents all saying much the same thing. If he or she is looking at the timing of various steps taken in an agency, then access to each of those countless documents may be exactly what an applicant wants.^[70]

ASIC’s decision dated 17 October 2003

75. The first question that arises is to identify the decision that ASIC made on 17 October 2003 regarding charges. The decision does not distinguish between charges in respect of the request and those in respect of the provision of access. It describes its decision as a decision that is made in accordance with s 29 and is that Mr Matthews was “... liable to pay a charge for processing ... [his] request.” The decision-maker then imposed charges and made a preliminary assessment of charges both in respect of Mr Matthews’ request for access to documents and in respect of the provision of access to documents to which his request relates. There was no reference in the letter to the fact that the two sets of charges are assessed on different bases but the charges are clearly intended to be an estimate as contemplated by rr 9(1) and (2) as well as by s 29(1)(c) of the FOI Act.

76. Given the structure of the charges regime that I have set out above, ASIC should have calculated the deposit it required Mr Matthews to pay in respect of each type of charge. It should not have added the charges in respect of the request and those in respect of the provision of access together and asked for 25% of the combined amount as a deposit. So long as Mr Matthews did not pay the charge or deposit in respect of the request, as opposed to the charge or deposit in respect of the provision of access, ASIC was not required to deal with his request. That was the practical effect of s 31.

77. The fact that ASIC’s decision was not made as it should have been does not mean that Mr Matthews could not ask ASIC to remit the charges. He could do so because ASIC had made a decision in fact on 14 October 2003, that decision purported to be made under, or in the exercise of powers conferred by, an enactment which, in this instance, was r 9 and, under s 29(5) ASIC had power to determine whether or not to reduce or to not impose the charges it had decided upon.^[71] Mr Matthews did so on 31 October 2003. When ASIC decided on 5 December 2003 not to reduce or remit the charges, or any part of them, Mr Matthews applied to ASIC again for review of that decision under s 54. Again, this was a decision in fact that purported to be made under, or in the exercise of powers conferred by, an enactment which, in this instance, was s 29(5) of the FOI Act. It was a decision that ASIC had power to review under s 54.^[72] Had Mr Matthews chosen to do so, the same reasoning leads to the conclusion that he could have applied to this Tribunal for review of the unfavourable decision made by ASIC on 21 January 2004 under s 54. As it was, he chose not do so and paid a deposit of $1,913.00.^[73] Whether he could do so now depends upon his being granted an extension of the 60 day time period allowed under s 29 of the Administrative Appeals Tribunal Act 1975 (AAT Act) when read with s 55 of the FOI Act.^[74]

Is ASIC able to exercise the power to impose a charge in respect of the provision of access once more?

78. Even though ASIC’s decision that Mr Matthews was liable to pay a charge in respect of the provision of access was reviewable by ASIC and ASIC’s decision on review would have been reviewable by the Tribunal, it remains the fact that the deposit was not calculated on the basis that it should have been. Is it possible to exercise the power again?

79. Section 33(1) of the Acts Interpretation Act 1901 (AI Act) provides that “Where an Act confers a power ..., then, unless the contrary intention appears, the power may be exercised ... from time to time as the occasion requires.” In considering whether there is a contrary intention, regard needs to be had first to the passage from the judgment of Gleeson J in Minister for Immigration and Multicultural Affairs v Bhardwaj^[75] (Bhardwaj) where he says:
“ The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires the examination of two questions. Has the Tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or ... reconsider the whole matter afresh?”

Principles such as these are equally applicable to decision-makers who are not tribunals.^[76]

80. The first question centres on whether ASIC discharged its functions in relation to charges when it made its initial decision on 17 October 2003. For the reasons I have already given, I think that it did not calculate the deposit correctly and so asked Mr Matthews for too great a deposit. Whether that means it did not discharge its functions, depends on the application of the principles set out by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority:^[77]
“ An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. ... The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied ... ; there is not even a ranking of relevant factors or categories to give guidance on the issue.”^[78]

Later in their judgment, their Honours rejected an approach that determines whether a decision has been made in breach of statutory requirements by reference to whether those requirements are directory or mandatory requirements. They said:
“... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’ ....”^[79]

81. When regard is had to the structure of the charges regime, it seems to me that Parliament did not intend that a mistake of the sort made by ASIC would make a decision invalid or of no effect. Once he was given notice of it under s 29, the effect of ASIC’s decision was to impose a liability upon Mr Matthews and to defer ASIC’s obligation to consider his request until he met that liability or paid a deposit. Sections 29(4), 54(1) and 55 provided a means by which he could have had that decision reviewed. The purpose of the review process was to enable the issue of charges to be resolved if Mr Matthews chose to take that path. If he chose instead to pay the deposit, ASIC was again liable to come to a decision on his request within the time limits provided in the FOI Act. Therefore, rights and duties hinged on that decision and it would be contrary to the smooth flow of the processing of a request if that decision could be revisited and remade at some time after both Mr Matthews and ASIC have taken various steps on the basis that the decision was properly made. I have concluded, therefore, that ASIC has exhausted its decision-making powers under s 29 and r 9 of the Charges Regulations and has no power to revisit it.

ASIC’s decision dated 28 February 2011

82. From the correspondence that I have, there is no indication that ASIC advised Mr Matthews of any decision it made under r 10 fixing the amount of charges following its earlier estimate under r 9. Assuming that it made a decision, perhaps there are reasons why it thought that it did not need to advise him of it.^[80] This is not the time to consider whether any reasons would justify its not telling him of the decision and I think it most unlikely that ASIC would take such a course. That leads me to think that perhaps it did not turn its mind to whether the amount fixed in respect of the charges under r 9 does, or does not, equal the amount that Mr Matthews would, but for that estimate, be liable to pay.

83. It would seem that ASIC’s focus remained on its original estimate of charges and its subsequent review. That would seem to be the case when it made its decision dated 28 February 2011 in response to Mr Matthews’ request to waive all charges that it had already decided he was liable to pay and to return his deposit. Mr Matthews made his request in response to ASIC’s invitation to do so. Its invitation is found in its letter of 7 December 2010 but it was an invitation to make an application that was said not to be provided for under the FOI Act and so to carry no review rights.

84. The decision to remit or reduce the charges is a different decision from that to impose the charges in the first place. The charges regime has a clear pattern beginning with the decision to impose liability to pay a charge and then the assessment of the amount whether it be by estimate initially or not. There are then avenues provided for reduction and remission of the charges and review of the decision on that aspect. Although I have decided that the decision made on 17 October 2003 to impose liability to charges was flawed in so far as it calculated the amount of the deposit required, I have also decided that ASIC had the power under s 29(4) to consider Mr Matthews’ contention that it should be remitted or reduced. That was a decision that was properly made. Therefore, even though the initial decision to impose the charges in relation to the provision of access was not properly made at the time, the decision made on 5 December 2003 refusing to remit or reduce the charges imposed in that decision was properly made. ASIC had used its powers and was functus officio in relation to the aspect of the decision dated 5 December 2003 relating to charges relating to the provision of access as it was in relation to that aspect relating to charges relating to the request. The same is true of the decision it later made on 21 January 2004 under s 54. The charges regime contemplates that there are steps in the review process but it contemplates that they will be taken only once in relation to each decision that an agency or Minister makes to impose liability to pay charges. In cases of this sort, that means that the steps may be taken contemporaneously if the two decisions imposing liability and making a preliminary assessment of the charges are made at the same time but, whether taken contemporaneously or not, there remain technically two decisions relating to charges with only one set of steps in the review process from each.

85. That means that I agree with ASIC’s submission that it had no remaining power to make the decision dated 28 February 2011 under the FOI Act. I also agree with its position that the Tribunal has no power to review the decision made on 28 February 2011 but not for the reasons submitted. On behalf of ASIC, Mr Hill submitted that the decision was made under s 11(4) of the ASIC Act, which confers power on it “to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions”. I agree that the Tribunal does not have power to review decisions made under s 11(4) of the ASIC Act but do not agree that a decision about fees and charges under the FOI Act can be regarded as coming within a description of its functions or being incidental to the performance of its functions. The functions to which s 11(4) refers are those in s 11(1) of the ASIC Act and in other provisions of the corporations law. Section 11(1) provides that “ASIC has such functions and powers as are conferred on it by or under the corporations legislation (other than the excluded provisions).” Other provisions in s 11 confer specific functions upon ASIC but each relates to its role as a regulatory body or, in the case of s 11(6), having the general administration of the ASIC Act. Even when broadly read, none of those functions relates to any part of ASIC’s functions or powers under the FOI Act. None relates to its function or power to deal with a request under the FOI Act let alone to impose, remit or reduce charges in respect of a request or the provision of access to a document. That is so because it is not the ASIC Act that confers functions and powers upon ASIC in relation to matters dealt with in the FOI Act but the FOI Act itself. Unlike most enactments, which confer functions and powers on a specified body or a confined number of bodies, the FOI Act confers functions and powers on every person or body coming within the scope of the definition of an “agency” in s 4(1) of that legislation and every person who is a Minister.

Should the time within which Mr Matthews might apply to the Tribunal for review of ASIC’s decision dated 21 January 2004 be extended?

86. Section 55(4)(a) of the FOI Act gave Mr Matthews a period of 60 days within which to lodge an application for review of ASIC’s decision made under s 54(2) and dated 21 January 2004. Section 29(7) of the AAT Act gives the Tribunal power to “... extend the time for the making ... of an application to the Tribunal for a review of a decision ... if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.” The person must apply for the extension in writing.

A. General principles

87. Generally, the Tribunal has considered an application to extend time by considering the matter in light of the principles set out by Wilcox J in Hunter Valley. In that case Wilcox J considered an application for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) rather than under s 29(7) of the AAT Act. After noting that s 11 does not set out any criteria to be followed in exercising the Court’s discretion, Wilcox J distilled six factors that are relevant in deciding to exercise the discretion. The first factor^[81] was modified by the Full Court of the Federal Court in Comcare v A’Hearn.^[82] Allowing for that modification, the factors were summarised by Federal Magistrate McInnis, as he then was, in Phillips v Australian Girls’ Choir Pty Ltd & Anor^[83] when he said:
“ In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:

There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The ‘prescribed period’ of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).
It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302).
Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287).
Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).
The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).
Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”^[84]

88. Cowdroy J approved and applied this formulation of the principles in the context of s 44(2A)(a) of the AAT Act relating to an appeal to the Federal Court from a decision of the Tribunal.^[85] They are, however, not factors that are applied rigidly for it is apparent from other judgments of the Federal Court that they are factors or principles that must be shaped by reference to the legislative context in which the power is given. The legislative context in which they were developed by Wilcox J in Hunter Valley was that of the ADJR Act and not that of s 29(7) of the AAT Act or of the enactment under which a particular administrative decision has been made.

89. The apparent strengths or weaknesses of any applicant’s case are the subject of factor 6 in McInnis FM’s summary in Phillips v Australian Girls’ Choir Pty Ltd & Anor and were included by Wilcox J in the Hunter Valley case in his list. The authorities are clear that a consideration of the merits of the substantive or substantial application does not translate into a requirement to undertake a full consideration of the merits of a substantive application were time extended and it were to be lodged. Von Doussa J explained their relevance of issues relating to the merits of the substantial application in Windshuttle v Commissioner of Taxation.^[86] His Honour said:
“The issue which the AAT was required to consider was whether, for the purposes of the exercise of the discretion under s 188A [of the Income Tax Assessment Act 1936], the applicant’s case had prospects of success, and what those prospects were. It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. In other words the assertions can, if the parties so choose, be treated as pleadings are treated where an application is made to strike out an action on the ground that the pleadings disclose no cause of action. On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings. It would, of course, have been open before the AAT for the Commissioner to attack the history of the transaction asserted by the applicant. If it could have been demonstrated that an essential part of that history was wrong, that would go directly to the prospects of success to the objection. However the Commissioner chose not to attach [sic] the veracity of the facts alleged by the applicant, and this is understandable having regard to judicial pronouncements to the effect that where the issue is whether leave should be given to extend time it is inappropriate for the tribunal concerned to embark on a full scale trial of the merits of the underlying question which will be agitated only if time is extended. See Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129 at 130, Repatriation Commission v Tuite [1992] FCA 415; (1992) 37 FCR 571 at 577. It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted. Arguments of that kind are best left for later consideration if and when an extension of time is granted. Only where there is some obvious and easily demonstrated flaw in the applicant’s case would it be appropriate to challenge the factual basis for the asserted claim on an application to extend time.”^[87]

90. In the later case of Brown v Federal Commissioner of Taxation, Hill J commented upon the relevance of particular principles set out in the Hunter Valley case to an application for an extension of time under the Taxation Administration Act 1953
. The taxpayer had sought an extension of time within which to lodge an objection from an assessment but the Commissioner of Taxation (Commissioner) had refused it. The Tribunal affirmed the Commissioner’s decision and the taxpayer appealed to the Federal Court. Against that background, Hill J said:
“... there is much to be said for the view that the merits of the objection are of less concern when an application for an extension of time to object is under consideration than would be the case where judicial review of an administrative decision is sought. For it is only after the objection is lodged within the time which is extended that the Commissioner is placed under a duty to consider the objection and allow or disallow it or allow it in part. I do not wish to be taken as saying that the merits of the objection are totally irrelevant. For present purposes I am prepared to accept the view of von Doussa J in Windshuttle [v Deputy Federal Commissioner of Taxation (1993) 93 ATC 4992] that an applicant should show that he or she has an arguable case. No doubt if the objection on the face of it is one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered. But this points to quite a low threshold. What is involved is whether the objection on its face discloses a case which is arguable, not whether having regard to other matters, including evidence which may not even be known to the taxpayer at the time of making the application, the case is one that the taxpayer will or will probably lose.”^[88]

91. While his Honour’s comments were noted on appeal, the Full Court made no particular observation other than to clarify the Tribunal’s power to have regard to the apparent strengths and weaknesses of the taxpayer’s case.^[89] It said:
“ We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer’s case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration. In the present case, for example, while the AAT should not have resolved the application by rejecting the taxpayer’s evidence as unworthy of belief, it could have taken into account the obvious difficulties confronting the taxpayer’s claim when deciding whether, in the light of all the circumstances, an extension of time was appropriate. The AAT might well have concluded that, having regard to the taxpayer’s delay in lodging the application, the fact that he had been prepared at one stage to accept that the assessed amount was income and the contemporaneous documentary evidence casting doubt upon his claims, the case did not warrant an extension of time. But this is not the basis on which the AAT chose to proceed.”^[90]

92. The spirit in which an application for an extension should be approached is a matter that Davies J, with whom Black CJ agreed, considered in Chalk v Commissioner for Superannuation.^[91] He said:
“ Most provisions which authorise an extension of time are instances of beneficial legislation which, accordingly, should be applied beneficially. With respect to such discretions in rules of court, Reynolds, Hutley and Bowen JJA said, in Outboard Marine Australia Pty Ltd v Byrnes: Bauknecht (Third Party) [1974] 1 NSWLR 27 at 30:
‘We appreciate that the rules of court, particularly those relating to time, should never be allowed to be an instrument of tyranny. They do, however, have purposes, one of which is that the parties may know where they stand and regulate their affairs accordingly. It is also appreciated that where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.’
Those remarks indicate the importance of forming a view as to whether it is in the interests of justice that time be extended...”^[92]

93. Similar sentiments were expressed by McHugh J in the High Court in Brisbane South Regional Health Authority v Taylor:^[93]
“Even where the cause of action relates to personal injuries ..., it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible ...
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is ‘to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.’ ^[[94]] But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”^[95]

94. I have also considered whether any regard should be had to ss 2A or 33(1)(b) of the AAT Act and have decided that I should not. Section 2A provides:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”

Sections 33(1)(b) provides:
“In a proceeding before the Tribunal:
(a) ...
(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; ...
(c) ...”

95. The nature of a provision such as s 2A was considered by the High Court in Minister for Immigration and Multicultural Affairs v Eshetu^[96] when considering s 420 of the Migration Act 1958.^[97] It decided that:
“... The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins^[[98]]. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.”^[99]

They do not affect substantive rights and so do not affect the right to have an application for an extension of time considered without reference to what might be thought to meet each and every criterion specified in s 2A. In so far as those criteria can be achieved, they relate only to the “mechanism of review” and so to the “... arrangements and action by which ...” review is achieved;^[100] not to deciding the question whether review will be undertaken at all. The same is true of s 33(1)(b). The application for an extension of time is a “proceeding” within the meaning of s 3(1) of the AAT Act and s 33(1)(b) requires that it be conducted with as little formality and technicality and with as much expedition as permitted by a proper consideration of the matters under review and, in this case, the FOI Act and the Charges Regulations. Section 33(1)(b) does not operate to affect the principles that are relevant in deciding the proceeding.

B. Should time be extended?

96. Seven years have passed since ASIC made its estimate of charges and Mr Matthews paid the deposit. During that time, Mr Matthews’ view is that he expected:
“... in due course to receive more or less 35,000 pages of documents. I was prepared to accept that may be perhaps a few highly confidential ones may be excluded ...”^[101]

He wrote this in a letter to the District Registrar of the Tribunal’s Melbourne Registry summarising previous correspondence he had with ASIC and the Ombudsman, to whom he had complained about various matters, and attaching [7.1] to [7.26] of his complaint. In the complaint, Mr Matthews stated that he had sent some emails to ASIC in which he had tried to find out from ASIC whether there had been any material change in the number of pages it had estimated in its initial letter to him. It is his view that ASIC did not respond. When it made its decision on the request on 18 June 2004, ASIC had identified only 1,226 documents and granted access to 40 of them and refused access to the remainder.^[102]

97. In its initial decision on the request under s 23(1) of the FOI Act, ASIC identified 1,226 documents (comprising many more folios) coming within Mr Matthews’ request. On 18 June 2004, it granted access to 40 of them and refused access to the remainder on various grounds.^[103] The internal review decision under s 54 led to Mr Matthews’ being granted access to an additional five documents in their entirety. On the delegate’s understanding, that meant that the number of pages to which Mr Matthews was granted access had increased from 197 to 356 pages.^[104] On Mr Matthews’ understanding as conveyed in his letter of 3 July 2006, he had been given access to 36 pages. I am at a loss for the moment to work out the discrepancy in the figures but do not need to do so. I refer to these numbers only to illustrate that it must have been apparent to ASIC right at the outset that it would be claiming exemption in relation to a large number of documents and yet it made no allowance for that fact in its estimate of charges in relation to the provision of access.

98. My point in referring to these matters is that they illustrate that Mr Matthews made it clear to ASIC that he was not accepting of its decision to impose the charges. He made it clear after ASIC had affirmed its decision not to remit or reduce the charges under s 29(5) of the FOI Act and so after 21 January 2004. His complaint to the Ombudsman, which was conveyed to ASIC, was dated 5 November 2004.^[105] The complaint remained active until its resolution by the Ombudsman on or about 5 May 2006. Part of the outcome was that ASIC had agreed to reconsider his second FOI request that was the subject of the complaint and led to the earlier proceedings in the Tribunal.

99. Mr Matthews had an arguable case that giving him access was in the public interest or in the interest of a substantial section of the public. Whether or not he would be successful in that argument would first require a decision to be made as to the time at which the public interest is determined. That, in turn, would require consideration and application of the principles in Shi v Migration Agents’ Registration Authority.^[106] So too would a consideration of whether the charges were properly estimated and so whether or not they should be reduced. Again, Mr Matthews has an arguable case. Whether or not he would ultimately be successful is not a matter for determination in this proceeding for an extension of time to lodge an application. The principles in Shi would again be among the matters that would be relevant as would a consideration of the interaction of rr 9 and 10 of the Charges Regulations.

100. That is the matter from Mr Matthews’ perspective. ASIC’s view is that the matter is at an end. Mr Matthews is too late. The public interest no longer justifies any remission or reduction of charges.

101. In my view, ASIC did not make the initial decision entirely as it should have been made and the deposit it required Mr Matthews to pay was more than it should have been at that time. For his part, Mr Matthews could have chosen to come to the Tribunal and seek review of ASIC’s estimated charges but did not.

102. Weighing all of these matters, I have concluded that the time within which Mr Matthews may apply for review of ASIC’s decision dated 21 January 2004 should not be extended. On payment of the deposit, ASIC had proceeded to consider his request as it was obliged to do and presumably on the understanding that Mr Matthews would pay the charges it had estimated in respect of the request when the time came to provide access. This is the normal course of events followed in cases in which charges have been estimated and considerations of fairness with other applicants in a similar situation would suggest that the review process should be at an end. The charges regime clearly contemplates that charges in respect of a request will be resolved between an applicant and an agency or Minister before the agency or Minister is required to undertake the work in locating the documents and making a decision on them. Matters of public interest are to be considered at that time. Had ASIC not given notice under s 29, my conclusion might have been different but it did give notice and Mr Matthews made it clear that he knew his rights when he took some of the steps provided for the review of its decision. He did not choose to take the final step but chose instead to pay the deposit and require ASIC to undertake its task of making a decision. That it has done and it is now too late to permit him to seek review of the charge decision in this Tribunal.

The final assessment

103. For the reasons I have given above, I consider that ASIC should make a final assessment of the charges under r 10. Again for the reasons I have given, I do not consider that this decision is reviewable by this Tribunal. That does not mean that Mr Matthews may not have other avenues of review if he is not satisfied with the decision but they do not lie with the Tribunal.

I certify that the preceding 103 paragraphs are a true copy of the reasons for the decision herein of

Deputy President S A Forgie,

Signed: ....................................................................

Leah Berardi Associate

Date of Hearing 24 June 2011
Date of Decision 25 January 2012
Applicant Mr W Matthews
Counsel for the Respondent Mr G Hill
Solicitor for the Respondent Ms J Birch
Australian Securities and Investments Commission

^[1] Re Matthews and Australian Securities and Investments Commission and Ors [2010] AATA 649; (2010) 118 ALD 23
^[2] The complete request is set out in my reasons for decision in [2010] AATA 649; (2010) 118 ALD 23 at [130]; 66
^[3] That was assessed on the basis that paragraph 1 of Mr Matthews’ request incorporated 4,200 pages. Paragraph 2(a) was estimated to encompass 30,720 pages. That was assessed on the basis that 24 boxes of material met that paragraph of Mr Matthews’ request for access. Each box contained four folders. One of those folders, selected on a random basis, contained 320 pages. Therefore, each box contained 1,280 pages. Four hundred pages were estimated to come within paragraph 2(b).
^[4] Folder of documents, Document 1 at 3
^[5] Folder of documents, Document 1 at 3
^[6] Letter dated 31 October 2003 from Mr Matthews to ASIC
^[7] Letter dated 5 December 2003 from ASIC to Mr Matthews
^[8] [2010] AATA 649; (2010) 118 ALD 23
^[9] Folder of documents, Document 7 at 2-3
^[10] Folder of documents, Document 8 at 2
^[11] Folder of documents, Document 9 at 1
^[12] Folder of documents, Document 10 at 1
^[13] FOI Amendment Act, s 2(1), item 6
^[14] Act No. 51 of 2010
^[15] FOI Amendment Act, s 3 and Schedule 6, Part 1, item 34
^[16] Amendment Regulations, r 4
^[17] ASIC received Mr Matthews’ request dated 12 October 2003 on 14 October 2003: Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 122.
^[18] The requirements set out in s 15(2) are that “The request must:
(a) be in writing; and
(b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and
(c) specify an address in Australia at which notices under this Act may be sent to the applicant; and
(d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in the current telephone directory; and
(e) be accompanied by the fee payable under the regulations in respect of the request.”
^[19] FOI Act, s 18(1)
^[20] That meaning is extended also by the provisions of s 17, which related to information stored on a computer or other equipment.
^[21] FOI Act, s 20(2)
^[22] FOI Act, s 20(3)
^[23] FOI Act, s 15(5)(b)
^[24] FOI Act, s 4(8)
^[25] Charges Regulations, r 3(2)
^[26] Charges Regulations, r 4
^[27] Charges Regulations, r 6(1)
^[28] This Part must be read with r 8 which sets out an applicant’s liability where access may be provided in more than one form.
^[29] Charges Regulations, Schedule, Part II, item 2
^[30] Charges Regulations, Schedule, Part II, item 1
^[31] Charges Regulations, r 9(1)
^[32] Charges Regulations, r 9(2)
^[33] Charges Regulations, r 9(3) and see also r 9(5)
^[34] Charges Regulations, r 9(4)
^[35] Regulation 7 was repealed by the Freedom of Information Laws Amendment Act 1986, s 24
^[36] Charges Regulations, r 12(2)
^[37] Charges Regulations, r 13(1)
^[38] Charges Regulations, r 13(2)
^[39] Charges Regulations, r 14
^[40] Charges Regulations, r 10(1)(b)
^[41] Charges Regulations, r 10(4)(b)
^[42] Charges Regulations, r 10(4)(a)
^[43] FOI Act, s 29(2)
^[44] FOI Act, s 29(6)
^[45] FOI Act, s 29(8)
^[46] FOI Act, s 29(9). Section 29(10) of the FOI Act provides that s 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision made by the agency or Minister under s 29(8) on the applicant’s contention.
^[47] FOI Act, s 29(7)
^[48] FOI Act, s 29(3)
^[49] FOI Act, s 31(3)(a)
^[50] FOI Act, s 31(3)(b)
^[51] FOI Act, s 31(3)(ba)
^[52] FOI Act, s 31(3)(c)
^[53] FOI Act, s 54(1)(d). I have had some difficulty with this provision for a decision “...relating to the imposition of a charge or the amount of a charge” is not made “under section 29” but under the Charges Regulations. Section 29(1) itself acknowledges that the decision is made under those regulations.
^[54] FOI Act, s 55(2)
^[55] FOI Act, s 55(4)
^[56] FOI Act, s 55(3)
^[57] FOI Act, s 56
^[58] [1984] FCA 176; (1984) 3 FCR 244; 58 ALR 305; 7 ALD 315 at 348-349; 310-311; 320 per Wilcox J
^[59] [2010] AATA 649; (2010) 118 ALD 23 at [149]; 72 and [245]; 102 respectively
^[60] Mr Hill of counsel cited my decision in Re Nickson and Australian Securities and Investments Commission (Re Nickson) [2005] AATA 859; (2005) 41 AAR 218 at [44]; 235 in support of this proposition.
^[61] Minister for Immigration v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [13]; 605 per Gleeson CJ
^[62] “ASIC has such functions and powers as are conferred on it by or under the corporations legislation (other than the excluded provisions).”
^[63] Mr Hill referred to my decision in Re Birdseye and Australian Securities and Investments Commission [2003] AATA 138 at [32] and submitted that, although it is not defined in the FOI Act, the word “decision” would have the same meaning as it is given in s 3(3) of the Administrative Appeals Tribunal Act 1975.
^[64] Re Nickson [2005] AATA 859; (2005) 41 AAR 218 at [55]; 238
^[65] See [32] above
^[66] No distinction between the two types of charges is made in the review provisions found in ss 54 and 55. They refer instead to a decision under s 29 in relation to the imposition of a charge or the amount of that charge. That is a generic description referring to charges of both types.
^[67] Charges are themselves distinguished from the application “... fee payable under the Regulations in respect of the request” (FOI Act, s 15(2)(e)) and the “... application fee in respect of the application ...” (FOI Act, s 54(1)). Remission of those two fees is provided for in s 30A of the FOI Act and not under s 29, which relates to charges. The Charges Regulations deal separately with application fees and charges in respect of a request and in respect of the provision of access. Application fees are set in r 5 for the purposes of s 4(8) of the FOI Act and so quite separately from the charges regime set out in the other provisions of the Charges Regulations.
^[68] “The Governor-General may make regulations ... making provision for or in relation to: (a) the making of charges of amounts, or at rates, ... in respect of requests for access to documents or in respect of the provision of access to documents ...”: FOI Act, s 94(1)(a).
^[69] Charges Regulations, r 14 and see [39] above
^[70] ASIC’s letter of 7 December 2010 recognised that Mr Matthews might not want access to certain information in documents coming within his request and raised the matter with him; Folder of documents; Document 7 at 3.
^[71] Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338; (1979) 24 ALR 307; 2 ALD 1 at 346; 317; 7 per Bowen CJ and 373; 339-340; 26-27; 26-27 per Smithers J. See also at 378; 343-344; 31 per Deane J although in dissent.
^[72] See footnote above
^[73] Letter dated 7 December 2010. I note that the amount of the deposit was 25% of the total of the charges estimated in respect of the request and of those in respect of the provision of access to all of the 35,320 pages of documents that ASIC estimated would come within the terms of Mr Matthews’ request. Given my view that the deposit at that stage should have related only to charges in respect of the request and not in respect of the provision of access, the deposit that ASIC requested should have been $1,030.00 and not $1,913.00. I note that ASIC’s letter dated 28 February 2011 refers to a deposit of $1,300.oo having been paid and a balance of $6,352.00 remaining to be paid. This does not accord with other references to the deposit’s having been $1,913.00. I do not need to resolve the discrepancy in this case.
^[74] See [96]-[102]below
^[75] [2002] HCA 11; (2002) 209 CLR 597 at [8]; 603-604
^[76] See, for example Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181; (2005) 145 FCR 542 (Dowsett, Hely and Lander JJ) in relation to Ministers of the Crown and Water Administration Ministerial Corporation v Jones [2005] NSWCA 181; (2005) 139 LGERA 198 (NWSCA) (Giles & Hodgson JJA and McClellan AJA) in relation to a Ministerial Corporation.
^[77] [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490; McHugh, Gummow, Kirby and Hayne JJ; Brennan CJ dissenting
^[78] [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; [1998] HCA 28; 153 ALR 490; at [91]; 388-389; 859; 515 (footnote omitted)
^[79] [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; [1998] HCA 28; 153 ALR 490 at [93]; 390-391; 860; 516-517
^[80] It may be that it turned out that the amount he is liable to pay in respect of the charge under the Regulations is the same as the amount estimated so that r 10 is irrelevant. It may be that the amount Mr Matthews would have had to pay is more but that ASIC has taken the view that r 10(2) means that it cannot fix an amount larger than its estimated amount. That would follow from an interpretation of r 10(2) that it prevents an increase in cases in which an agency or Minister does not grant a request to all of the documents requested even though access is granted in respect of some of them. That may well be correct and would accord with the view taken in FOI Memo 29, which guided decision-makers before the Office of the Information Commissioner and certainly at the time that many of the steps were taken in this matter: “Once the agency has completed the processing of the request, it revises its assessment of the charge payable by the applicant based on the actual amount of work involved in the request. If the agency refuses access to any of the documents, the charge can be less but not more than the agency’s preliminary assessment (see reg.10(2)). The agency then notifies the applicant of its decision in respect of release of the documents and seeks payment of the balance of the charge before access is granted.”: FOI Memo 29, Appendix 1 at cl 14

^[81] It read in part that “It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time ...”: [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315 at 348; 310-311; 320
^[82] [1993] FCA 498; (1993) 45 FCR 441; 119 ALR 85
^[83] [2001] FMCA 109
^[84] [2001] FMCA 109 at [10]
^[85] Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [19]. Section 44(2A) provides that an appeal instituted under ss 44(1) or (2) shall be instituted within the time set out in s 44(2A)(a) and in such manner as is prescribed by the Federal Court Rules:
s 44(2A)(b). His Honour also noted at [18] that “Such principles were applied by Gray J in Pham v Commonwealth of Australia [2002] FCA 669, although in the context of s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).”
^[86] [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; [1993] FCA 553; 27 ATR 88
^[87] [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; [1993] FCA 553; 27 ATR 88 at 243-244; 4999 and 95 and approved by Federal Commissioner of Taxation v Brown [1999] FCA 1198 at [12] per Drummond, Sackville and Hely JJ
^[88] [1999] FCA 563; (1999) 99 ATC 4516; [1999] FCA 563; (1999) 42 ATR 118 at [56]; 4526-7; 131 per Drummond, Sackville and Hely JJ. See also Brown v Federal Commissioner of Taxation [1999] FCA 563; (1999) 99 ATC 4516; [1999] FCA 563; (1999) 42 ATR 118 at [56]; 4526-7; 131 per Hill J
^[89] Federal Commissioner of Taxation v Brown [1999] FCA 1198; (1999) 99 ATC 4852; [1999] FCA 1198; 42 ATR 672
^[90] Federal Commissioner of Taxation v Brown [1999] FCA 1198; (1999) 99 ATC 4852; [1999] FCA 1198; 42 ATR 672; at [28]; 4860; 680-681
^[91] [1994] FCA 1063; (1994) 50 FCR 150; 33 ALD 420
^[92] [1994] FCA 1063; (1994) 50 FCR 150; 33 ALD 420 at 155; 425
^[93] [1996] HCA 25; (1996) 186 CLR 541; 139 ALR 1
^[94] Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628; 75 ALR 513 at 635; 518
^[95] [1996] HCA 25; (1996) 186 CLR 541; 139 ALR 1 at 553-554; 9-10
^[96] (1999) 197 CLR 611; 162 ALR 577
^[97] “(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.”
^[98] (1992) 28 NSWLR 26
^[99] [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577 at [49]; 628; 588 per Gleeson CJ and McHugh J and 659; 613 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at 635; 592-594
^[100] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
^[101] Letter dated 3 July 2006 at [7.9]
^[102] I have summarised the various steps in my reasons for decision in Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23 at [131]; 66
^[103] T documents at 123-234
^[104] [2010] AATA 649; (2010) 118 ALD 23 at [137]; 68
^[105] Referred to in the Ombudsman’s letter to ASIC dated 4 January 2005
^[106] [2008] HCA 31; (2008) 235 CLR 286; 48 AAR 345

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Saturday 16 March 2013

Matthews V Asic/ FOI Charges

Administrative Appeals Tribunal of Australia

Matthews and Australian Securities and Investments Commission [2012] AATA 39 (25 January 2012)

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