FOI ref: 2024/0197
1 October 2024
Ivy
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ivy,
Notice of Decision for Freedom of Information Request no. 2024/0197
The purpose of this letter is to give you a decision about access to documents that you
have requested under the
Freedom of Information Act 1982 (
FOI Act).
Summary
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests.
You lodged an FOI request on 8 September 2024 for access to:
“I was wondering if you could give me information on how many Members /
Decision makers have had past involvement representing government agencies
like the NDIA in appeals processes.
I have concerns that a Member has recently been appointed to the AAT when
she had recently represented the NDIA against me during my appeal.
I would like to know how many other Members with possible partisan positions or
conflicts are currently or about to be appointed”
I have interpreted your request in two parts:
1. Document containing information on how many Tribunal members have past
work experience representing respondent agencies
2. Document containing the number of Tribunal members who have declared past
employment for or with a respondent agency as an actual or potential conflict
The definition of document in section 4(1) of the FOI Act is broad and includes any
record of information. However, the FOI Guidelines [at paragraph 2.42] confirm that the
right of access under the FOI Act is to existing documents, rather than to information
and there is no obligation for an agency to create a document which did not previously
exist in response to a FOI request.
Level 6, 83 Clarence Street
T: 02 9276 5000 or 1800 228 333
National Relay Service
SYDNEY NSW 2000
F: 02 9276 5599
www.relayservice.gov.au
GPO Box 9955 Sydney NSW 2001
E: xxx@xxx.xxx.xx
ABN 90 680 970 626
www.aat.gov.au
Decision
I have decided to refuse access to the documents on the basis that they do not exist.
In making my decision, I have taken the following into account:
• the content of the documents that fall within the scope of your request;
• the FOI Act, specifically section 24A;
• the guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act (
FOI Guidelines)
Section 24A of the FOI Act provides that, after all reasonable steps have been taken to
find the documents, access to documents may be refused if the documents do not exist
or cannot be found.
Part 1 of your request
In order to locate documents in scope of your request I reached out to and liaised with
the President’s Chambers section of the Tribunal. President’s Chambers is responsible
for holding all documents related to the appointment of members.
Based on this liaison, I am satisfied that the Tribunal does not hold any document which
contains information on how many members have past work experiencing representing
respondent agencies. Whilst the Tribunal does hold a copy of each member’s
Curriculum Vitae (CV) this does not necessarily include specific information about
whether they worked for a law firm which represented a respondent agency and, if so,
which agency. For this reason I do not consider that the CVs which the Tribunal holds
would provide the information you are seeking so I do not consider these documents in
scope of your request.
Given that I am satisfied that no documents exist which contain information about
members past work experience, including whether they represented respondent
agencies, it follows that access to this is refused under section 24A of the FOI Act.
Part 2 of your request
It is a fundamental requirement that members avoid having conflicts of interest in the
performance of their duties. Conflicts of interest as dealt with in the following sections of
the AAT Act:
- Section 11(2) provides that a part‑time member must not engage in any paid
employment that, in the President’s opinion, conflicts or may conflict with the
proper performance of their duties.
- Section 14(1) provides that a member constituted to a proceeding who has a
conflict of interest in relation to that proceeding must disclose the conflict to the
President and to the parties and must not take part in that proceeding unless the
President and the parties consent.
- Section 14(2) defines a conflict of interest for the purposes of section 14(1) as
the member having ‘any interest, pecuniary or otherwise, that could conflict with
the proper performance of the member’s functions in relation to the proceeding’.
Under these statutory definitions, a conflict of interest would not include instances where
a member has previously been employed by a law firm acting for a respondent agency.
Whilst the Tribunal requires any members to declare conflicts as noted above, the
current legislation governing the Tribunal does not require that any record or document
be created or maintained containing all declared conflicts. Therefore, I am satisfied that
the Tribunal possesses no documents which satisfy the parameters of your request.
For the reasons outlined above I have decided to refuse access to your request under
section 24A of the FOI Act on the basis that there are no documents which exist
containing the information you seek.
Your review rights
Information about how you can apply for a review of this decision or complain about how
we have dealt with this matter is set out in the attached fact sheet, FOI 2.
If you have any questions about this decision, please contact me a
t xxx@xxx.xxx.xx.
Yours sincerely,
Marta
Authorised FOI Of icer (EL 1)
Attachments
FOI 2 – Information about reviews and complaints under the Freedom of Information Act
Information about reviews and complaints under the
Freedom of Information Act
What should I do prior to applying for internal review or contacting the
Office of the Australian Information Commissioner?
Before you apply for an internal review or contact the Office of the Australian Information
Commissioner, we recommend that you telephone the officer who made the FOI
decision. It is often possible to resolve concerns or answer your questions using this
approach and, if not, the officer wil be able to assist you in applying for review.
How do I apply for internal review to the AAT?
You can apply to us for an internal review of the FOI decision. The application for
internal review must be made within 30 days or such further period as we allow, after the
day the decision is notified to you. To apply for an internal review you must do so in
writing. You may also wish to explain why you are not satisfied with the decision. A
different and more senior officer authorised under the
Freedom of Information Act 1982
(the FOI Act) wil conduct the internal review and make a new decision within 30 days
after receipt of your application.
If you have already applied for internal review and want to seek a further review of that
decision, you wil need to apply to the Australian Information Commissioner.
How do I apply for review to the Australian Information Commissioner?
You may also apply directly to the Australian Information Commissioner for review of the
FOI decision. The application for review must be made within 60 days after the day
notice of the decision was given. An application for review must be in writing, include
details of how notices in relation to the review are to be sent to you and include a copy
of the decision. You may also wish to explain why you are not satisfied with the decision.
An online application form is available on the Of ice of the Australian Information
Commissioner’s website found here:
Information Commissioner Review Application form.
What if I want to make a complaint about the handling of a Freedom of
Information request?
If you have a complaint about the way in which we have processed your request for
access under the FOI Act you can ask the Australian Information Commissioner to
investigate. An online complaint form is available on the Office of the Australian
Information Commissioner’s website, found her
e FOI Complaint Form.
Where can I find further information or contact details for the Office of the
Australian Information Commissioner?
Further information is available on the Office of the Australian Information
Commissioner’s website at
www.oaic.gov.au and you can contact the office on 1300 363
992 or by email at
xxxxxxxxx@xxxx.xxx.xx..
FOI 2 (April 2024)
Document Outline
