BY -v- Director General, Attorney General's Department [2002] NSWADT 79

BY -v- Director General, Attorney General's Department [2002] NSWADT 79

Section 57 applies to any Tribunal review of an agency claim that a document is a restricted document where no Ministerial certificate has been issued, with the consequence that the Administering Minister is a party for that aspect of the proceedings under s 57(6). However, because there is no Ministerial certificate and therefore no s 59 evidentiary bar or express jurisdictional limitation, a finding that reasonable grounds exist for the restricted document claim does not exhaust the Tribunal's jurisdiction; the Tribunal may proceed to determine whether the agency's decision is the correct and preferable decision.

Jurisdiction
Australia
Judgment Date
15 May 2002
Procedural Posture
Application for Review of Refusal of Access to Documents Under the Freedom of Information Act 1989 / Preliminary Matter
Outcome
Preliminary questions determined; matter to be relisted for directions.
Legal Topics
['access to Documents' 'restricted Documents' 'cabinet Documents' 'law Enforcement and Public Safety Documents' 'ministerial Certificates' 'tribunal Jurisdiction']
['administrative Law' 'freedom of Information'] ['access to Documents' 'restricted Documents' 'cabinet Documents' 'law Enforcement and Public Safety Documents' 'ministerial Certificates' 'tribunal Jurisdiction']

Case Brief

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Procedural Posture

Application for Review of Refusal of Access to Documents Under the Freedom of Information Act 1989 / Preliminary Matter

Legal Issues

  1. 1 ['Whether s 57 of the Freedom of Information Act 1989 is applicable to any application for review that seeks review of an agency claim that a document is a restricted document where no Ministerial certificate has been issued.' 'How the conferral of party status on the Administering Minister under s 57(6) operates.' "Whether s 57 fetters the Tribunal's ordinary jurisdiction to decide the correct and preferable decision, limiting inquiry to whether there are reasonable grounds for the restricted document claim."]

Ratio Decidendi

Section 57 applies to any Tribunal review of an agency claim that a document is a restricted document where no Ministerial certificate has been issued, with the consequence that the Administering Minister is a party for that aspect of the proceedings under s 57(6). However, because there is no Ministerial certificate and therefore no s 59 evidentiary bar or express jurisdictional limitation, a finding that reasonable grounds exist for the restricted document claim does not exhaust the Tribunal's jurisdiction; the Tribunal may proceed to determine whether the agency's decision is the correct and preferable decision.

Court Disposition

Preliminary questions determined; matter to be relisted for directions.

Orders

  • ['The preliminary questions are determined as follows: (a) Section 57 is applicable to any application for review that seeks review of an agency claim that a document is a restricted document (save for those determinations where a Ministerial certificate has been issued pursuant to s 59 to which ss 58A, B and C are...