Recent Cases

EMJ18 v Secretary, Department of Home Affairs [2024] FCAFC 87 (28 June 2024) (Perry, Sarah C Derrington and Horan JJ)


Catchwords:


ADMINISTRATIVE LAW – freedom of information – appeal from Administrative Appeals Tribunal – where Australian Information Commissioner decided not to review decision of Department but referred review directly to Tribunal by s 57A(1)(b) of the Freedom of Information Act 1982 (Cth) (FOI Act) – whether Tribunal correct to hold it did not have power under s 66(1) of the FOI Act to make a recommendation to the responsible Minister to pay the costs of applicant before Tribunal

STATUTORY INTERPRETATION – s 66(1) of the FOI Act – where Information Commissioner decided under s 54W(b) of the FOI Act not to undertake an IC review – where Tribunal held it did not have power under s 66(1) of the FOI Act to make a recommendation to responsible Minister to pay costs of appellant before Tribunal – whether properly construed “a review of a decision of the Information Commissioner on an IC review” includes a decision of the Information Commissioner under s 54W(b) of the FOI Act not to undertake an IC review – whether context and purpose compel insertion of words in s 66(1) of the FOI Act to include a decision not to undertake an IC review to fill apparent legislative gap