Bienstein v Attorney General [2009] FCA 1501

Bienstein v Attorney General [2009] FCA 1501

The Tribunal has no power to compel a Minister to make an actual decision in response to a FOI request; its jurisdiction is to review deemed refusals under the FOI Act. There was no reasonable apprehension of bias. The Tribunal's findings that all reasonable steps were taken to find documents justified refusal under s 24A; these findings are not tainted by errors of law.

Parties
Applicant: Helen Bienstein; First Respondent: Attorney-General (Cth); Second Respondent: Minister for Justice and Customs / Minister for Home Affairs (Cth)
Jurisdiction
Australia
Judgment Date
15 December 2009
Procedural Posture
Appeal and Application for Judicial Review / Final Judgment
Outcome
Appeal and application dismissed; costs awarded to respondents.
Legal Topics
Jurisdiction of Administrative Appeals Tribunal, Powers of Tribunal in FOI Matters, Procedural Fairness and Bias, Obligation to Make Decisions, Adequacy of Searches Under FOI, Questions of Law for Appellate Review
Administrative Law Freedom of Information Jurisdiction of Administrative Appeals Tribunal Powers of Tribunal in FOI Matters Procedural Fairness and Bias Obligation to Make Decisions Adequacy of Searches Under FOI Questions of Law for Appellate Review

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Parties

Helen Bienstein

Applicant

Attorney-General (Cth)

First Respondent

Minister for Justice and Customs / Minister for Home Affairs (Cth)

Second Respondent

Procedural Posture

Appeal and Application for Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether the Administrative Appeals Tribunal has power to order a minister to make a decision in response to a FOI request after a deemed refusal
  2. 2 Whether the Tribunal had jurisdiction to review the failure to make a decision or only the deemed refusal
  3. 3 Whether there was a reasonable apprehension of bias by the Tribunal

Ratio Decidendi

The Tribunal has no power to compel a Minister to make an actual decision in response to a FOI request; its jurisdiction is to review deemed refusals under the FOI Act. There was no reasonable apprehension of bias. The Tribunal's findings that all reasonable steps were taken to find documents justified refusal under s 24A; these findings are not tainted by errors of law.

Court Disposition

Appeal and application dismissed; costs awarded to respondents.

Orders

  • The appeal (VID 563 of 2008) be dismissed.
  • The applicant pay the respondents' costs of the appeal.