Page:McGinn v Australian Information Commissioner (2024, FCA).pdf/11

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review is, prima facie, the decision-maker under the relevant enactment: see Malubel Pty Ltd v Elder (1997) 98 A Crim R 192 at 199; [1997] FCA 1310 at p 11 (Moore J). As s 34AB(1)(c) of the AI Act deems, for the purposes of the enabling enactment, a decision of a delegate to be a decision of the delegator, that section provides a basis for the naming of the delegator as the respondent in this proceeding: see R Creyke, J McMillan and M Smyth, Control of Government Action: Text, Cases and Commentary (LexisNexis Butterworths, 4th ed, 2015) at p 538.

6 There otherwise appears to be no reason why the delegator (in this case the Commissioner) should not be the respondent: see Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 at [37] (Kenny, Griffiths and Mortimer JJ). In many proceedings before this Court, an office-holder will be named as the respondent even when the decision that is challenged is that of a delegate appointed by him or her: see, eg, Orfali v Australian Information Commissioner [2016] FCA 1386; BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530.

7 In my view, it is better that the statutory office holder be named as the respondent in such circumstances. This renders less personal the litigation: cf Re Reference at 95 (Brennan J). It is also generally consistent with the view that, when naming a party, it is appropriate to refer to a person's office, rather than the name of the person who held that office at the time the decision was made: see Kerr v Commissioner of Police (1977) 2 NSWLR 721 at 724–725 (Moffitt P, Hope and Samuels JJA agreeing); Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 191; [1998] FCA 1607 at pp 16 - - 17 (Branson J); Brown v Rezitis (1970) 127 CLR 157 at 169 (Barwick CJ); Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 529 and 552; [2003] HCA 11 at [31] (McHugh J) and [111] (Kirby J). It also facilitates the easier recognition, from the title of the case, of the general class of case to which the litigation relates. The applicant is in no way disadvantaged by this course being adopted.

42 His Honour's reference to the "AI Act" is to the Acts Interpretation Act 1901 (Cth). Section 34AB(1)(c) thereof provides:

34AB Effect of delegation

General

(1) Where an Act confers power on a person or body (in this section called the authority) to delegate a function, duty or power:

(c) a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority;

43 The applicant contends that the Office of the Australian Information Commissioner is an agency, and hence, a legal entity, and that the Australian Information Commissioner is the


McGinn v Australian Information Commissioner [2024] FCA 1185
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