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"WBX" and Chief Executive Officer, Centrelink [2006] AATA 1096 (15 December 2006)

Last Updated: 25 January 2007

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 1096

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2002/409

GENERAL ADMINISTRATIVE DIVISION		)
	Re		"WBX"

Applicant

And

CHIEF EXECUTIVE OFFICER, CENTRELINK

Respondent

DECISION

Tribunal

Mr S Penglis, Senior Member

Date 15 December 2006
Place Perth

Decision

The reviewable decision dated 11 July 2002 is affirmed.

........(Sgd. Mr S Penglis)..................
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL
 N^o W2002/409
GENERAL ADMINISTRATIVE DIVISION 

Re: "WBX"
Applicants

And: CHIEF EXECUTIVE OFFICER, CENTRELINK
Respondent

DIRECTION [2006] AATA 1096

Tribunal : Senior Member S Penglis

Date : 23 January 2007

Place : Perth

The Tribunal made a decision in this application on 15 December 2006: [2006] AATA 1096.

It has come to the Tribunal’s attention that there are obvious errors in paragraphs 48 and 49 of the Tribunal’s Reasons for Decision.

Accordingly, the Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter paragraphs 48 and 49 of the Tribunal’s Reasons for Decision as follows:

• in paragraph 48, the full stop at the end of the first sentence is to be deleted and a question mark is to be substituted therefor;
• in paragraph 49, the word "regards" is to be deleted.

.......[Sgd S Penglis]............

Senior Member

CATCHWORDS

Freedom of Information – Applicant requested amendment of record of personal information – Record of personal information held not to be incorrect or misleading – Turns on its own facts

LEGISLATION

Freedom of Information Act, 1982 (Cth) sections 33(1), 66(1), 48, 50, 55 and 61

Public Service Regulations made under the Public Service Act , 1992 (Cth) Regulations 82, 83, 84 and 85.

CASES

Callaghan and Secretary, Department of Family Community Services [2000] AAT 907

Mulder and Department of Immigration, Multicultural and Indigenous Affairs [2002] AAT 1347

Re Boyd and Health Insurance Commission (AAT 11870, 19 May 1997)

Robert La and Federated Furnishing Trade Society of Australasia [1993] 112 ALR 137

REASONS FOR DECISION

15 December 2006	Mr S Penglis, Senior Member
BACKGROUND

1. In 1998, the applicant was a member of the staff of Centrelink.
2. The applicant took exception to a document prepared by one of his superiors. It purported to be a record of a conversation with the applicant and was dated 16 September 1998.
3. In a letter dated 26 November 1998, the applicant wrote to Ms Vardon, the Chief Executive Officer of Centrelink, with respect to the purported record of conversation.
4. By letter dated 4 December 1998, Mr Robert Plant, the Manager, Human Resource Programmes of Centrelink, wrote to the applicant in the following terms:

"You wrote, in a letter dated 26 November, 1998, ‘through:OH&STeam’ to the Chief Executive Officer in respect of matters to do with your employment, and particularly certain actions of your supervisor.
As you have directed your letter through the OH&S Team of the Area’s Human Resource Management Programme I have written back, prior to forwarding the letter, as there are aspects which should be addressed now in order to expedite Ms Vardon’s consideration of your matters.
Firstly, you refer at your first numbered point to a ‘...document left on my desk...’. For Ms Vardon to determine appropriate action, the context and nature of this document will need to be considered: so I suggest that you provide a copy together with your letter.
Secondly, you request that the ‘...author, Ms Carol Needham...’ be directed to provide Affidavits in respect of several of your concerns with the document. Under Public service employment provisions it is not appropriate to direct an officer to attest the truth of matters by way of Affidavit (except in matters of court or other formal legal proceedings) but it is possible to direct an officer to provide a statement. However, this generally occurs where the officer is considered to have possibly committed misconduct.
As there is little evidence to this point that Ms Needham may have indeed committed misconduct in her dealings with you, I believe that it will expedite consideration of your requests should you be able to produce such evidence. Should, therefore, you have such evidence I suggest that you provide a description of this with your letter.
In the meantime, I shall alert Ms Vardon’s office that you have matter to raise; and will relay any additional material you may provide"

5. By letter dated 11 December 1998, the applicant wrote to Ms Vardon "in response to the letter from Mr Roger Plant dated 4 December 1998" and provided certain information "in support of my 26 November 1998 request".
6. By email dated 12 January 1999, Ms Vardon wrote to the applicant in the following terms;

"I’ve been following up on your letters. I have asked Roger Plant to have a talk to you about the issues in your letter and I believe that some kind of conflict resolution is better handled by him. I would like you to feel supported by Centrelink but I also recognise the pressure that offices are under with the very large customer numbers that come in. There must be a position which suits both parties and that we can all live with.

7. On 8 March 1999, Chris Perryer, Media and Community Relations wrote to the applicant in the following terms;

"I have been asked to conduct an enquiry into the grievance which you lodged in respect of the actions of Ms Carol Needham. My role will be to establish the facts surrounding your grievance, and to make a recommendation to the delegate, who I would expect to be Roger Plant.

I would like to finalise my enquiries as soon practicable, and in this regard I would like to talk to you as soon as possible..."

8. On 11 March 1999, there occurred a telephone conversation between the applicant and Mr Perryer in which, amongst other things, Mr Perryer sought to clarify the applicant’s grievances and advised the applicant of his role.
9. By letter 1 April 1996, Mr Perryer wrote to Mr Plant in the following terms:

"As you are aware, I have been conducting an enquiry into the grievance lodged by (the applicant) of the Innaloo CSC. (The applicant) originally had concerns about the actions of his supervisor, Ms Carol Needham. I wrote to him on 8 March 1999 and asked him to telephone me to discuss his concerns.
When (the applicant) contacted me he had advised me that he had two chief concerns. His first concern was that an unsigned record of conversation suggesting he seek alternative work had not been left on his desk by Ms Needham. His second concern was that he had been given access to various documents relating to his grievance. I advised him that the file papers suggested that he had been given access to a number of folios under the Freedom of Information (FOI) Act, and that I would investigate his other concern.
I subsequently spoke to Ms Needham. She told me that she had left the record of conversation in question on his desk. She was happy to sign the statement, and I forwarded a copy of it to (the applicant) on 19 March 1999. I then attempted to clarify the circumstances which led to Ms Needham’s record of conversation. My enquiries led me to conclude that the record of the conversation was the first stage of a process in which Ms Needham was documenting her concerns about (the applicant’s) work performance. At that stage I was confident that (the applicant’s) concerns were about to be largely addressed..."

10. By letter dated 13 April 1999, Mr Plant wrote to Mr Perryer in the following terms:

"Thank you for your letter of 1 April 1999, asking me, as delegate for (the applicant’s) grievance, for advice on matters of procedure.
You note in your letter that (the applicant) had advised you of two concerns: that an unsigned record of conversation had been left on his desk by his supervisor, and that he had issues of concern regarding access to documents. In respect of this latter I understand he has subsequently availed his right to seek access to these through the Freedom of Information Act.
Under the provisions which provide Centrelink employees with rights of grievance (ie Public Service Regulations 75 to 83) an employee may request the investigation of a decision affecting them and by which they are aggrieved (Regulation 76), or of an action taken in respect of them by which they are aggrieved (Regulation 82). The decisions available for grievance action under r.76 are specified in the regulation and do not apply to the issue of [the applicant’s] complaint.
Within these provisions I have accepted (the applicant) grievance as appropriate for investigation in that I understand it to be in respect of (using his description) his supervisor’s action in placing a "...document left on my desk stating that I should "look for a job elsewhere", but deliberately left unsigned..." as set out in his letter to the Chief Executive Officer of 26 November 1998.
I believe that matter to clearly involve an action, the investigation of which (the applicant) is entitled to seek under Regulation 82.
I have also considered (the applicant’s) further letter to you of 21 March 1999, and do not believe that it is a part of your responsibility to provide "...detailed responses to each of the following preliminary questions." I believe that the conduct of your investigation is a matter for you to determine, aided as necessary by comment or direction from me as the CEO’s delegate in determining the grievance, and do not believe it proper for (the applicant) to seek to direct or to elaborate that investigation by asking ‘preliminary questions’
It may be that (the applicant) believes that his questions indicate a direction or directions which your investigation should pursue but, if that is the case, he should put his view in further submission to you, rather than seek to interrogate yourself (or the supervisor through you) on aspect which may or may not be relevant to the action of which he complains.
The grievance process is intended to enable employees to raise and have investigated issues of concern at (in the case of r.82) actions which affect them apparently adversely. In (the applicant’s) case, he has identified that action as being the supervisor’s placement of the unsigned letter upon his desk. Your role is to investigate that action, and recommend any consequences necessary as a result of that investigation.
I consider that you may choose to take (the applicant’s) questions into account, but you should proceed to determine for yourself the conduct of your investigation into the circumstances of the letter and its delivery and, if you believe consequent action is necessary, recommend this to me.
You should not however allow the investigation to become embroiled in a pursuit of questions posed by (the applicant) which may be of interest, but are not in themselves actions capable of investigative review under regulation 83.

11. By letter dated 7 May 1999, Mr Plant wrote to the applicant in the following terms:

"In two items of correspondence sent during November and December, 1998 to the Chief Executive Officer you described a matter by which you were aggrieved, in respect of actions by your supervisor in her approach to the management of your performance.
Particularly, you stated concerns at your supervisor’s manner of supervision in addressing your performance and certain of her actions in respect of this, particularly in placing an unsigned ‘record of conversation’ on your desk.
You protested the accuracy of the contents of that record, the appropriateness of its delivery, and it unsigned nature.
Following clarification I forwarded your correspondence to Ms Vardon who requested me, on 12 January 1999, to undertake and manage an appropriate form of ‘conflict resolution’ and, I understand, advised you of this by electronic mail on that date.
I then sought the assistance of Mr Chris Perryer, and asked that he seek an assessment of the matter of which you complained under the terms of the Public service (regulations 75 to 83) grievance provisions, given that those provisions provide the most authoritative means whereby a complaint by an officer concerning actions or decisions made in respect of their employment can be examined and addressed.
I asked Mr Perryer to communicate with you and to report back to me including as appropriate any recommended actions.
Regulatory provisions
Under the regulations identified above, certain specified ‘actions’ taken or ‘decisions’ made in respect of an employee may be investigated with a view to resolution of any grievance caused and/or to consider practices which may require improvement. Only decisions specified in regulation 76, and actions which are not precluded by the operation of regulation 82, may be addressed in this way.
Under an instrument of delegation made by the Chief Executive Officer I am authorised to inquire into and determine grievances made within the terms of these regulations, and it is by this authority that I am now examining your concerns.
In formal terms I do not believe that your supervisor took a decision in the meaning of regulation 76 but have accepted, in effect, that you were aggrieved by her action in creating and placing the unsigned document upon your desk.
I have therefore accepted your grievance as appropriate for investigation of an action by your supervisor within the meaning of regulation 82, insofar as is involved the matters which you identified to Mr Perryer as causing you to be aggrieved. These are, as I have noted above, those actions by your supervisor in her creating and placement of an unsigned ‘record of conversation’ on your desk.
In summary I have accepted as a matter for investigation under regulation 82 the content of the record, the appropriateness of its delivery, and its unsigned nature.
Further matters
..........
Consideration
...........
Determination
Mr Perryer has reported his considerations to me, and recommends that your supervisor should be reminded of the importance of signing and personally delivery such documents to subordinate staff. I have accepted this recommendation, and will advise her accordingly.
I accept Mr Perryer’s further conclusion that further action is not necessary.
Consideration/reasons for my decision
content of the record
Inherent in the action by your supervisor of which you complain is the duty of a supervisor to monitor and address issues which may arise in the performance of duty by a subordinate officer. The authority of a supervisor arises in an instrument of delegation made by the Chief Executive Officer, and is a necessary means of providing through the reasonable direction of employees.
Applications of this authority are to be found in the Public Service regulations at regulation 7 (‘An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction’) and at regulation 86 where, even should an employee seek investigation of a direction, the employee shall ‘...carry out the direction unless it is withdrawn.’ Section 56(a) of the Public Service Act 1922 provides that it is a disciplinary matter subject to sanction where an employee ‘...wilfully disobeys, or wilfully disregards, a direction given by a person having authority to give the direction, being a direction with which it is his duty as an officer to comply’.
I have addressed this aspect of the duty of an employee to comply with direction in order to emphasise the role of a supervisor in providing direction to subordinate staff, and to provide a context in which performance management issues are a necessary part of that direction.
In this context an important aspect of the supervisory authority is to ensure that staff perform duty in an efficient and cost effective manner and, where this is not occurring, to take appropriate steps to remedy any shortcomings. The Public Service Act requires that all staff must be efficient; and where this is not the case provides (s.76W) that they may be reduced in classification or retired.
To implement this, provisions of the Continuous improvement in the APS Enterprise Agreement (1995-96) enable the Public service Commission to develop ‘Managing Underperformance – Inefficiency Procedures’ which set out minimum requirements for the monitoring and assessment of the performance of employees whose efficiency is in question.
Your supervisor therefore has a duty to ensure your performance is efficient, or to take steps to reduce your classification or retire you where this cannot be achieved. An integral part of this duty is to ensure your right to procedural fairness: meaning in brief that you must be aware of those factors taken into account in the assessment of your performance. This, essentially, is what required the production of the ‘record of conversation’ created by your supervisor and of which you have complained.
An important aspect to note is that while it is preferable it is not mandatory that you should agree the content of any such records: it is sufficient that you have access to the record in order to comprehend and reply to the supervisor’s views/understanding.
In this situation, I believe that your supervisor’s responsibility and authority to generate the ‘record of conversation’ was in place and appropriately used, and therefore disallow this aspect of your grievance.
appropriateness of the method of delivery of the ‘record’
Mr Perryer has advised me that your supervisor agrees that the record was placed upon your desk and not handed to you, despite the sentence ‘A copy of this was handed to Ian today.’ There is no reason identified as to why this occurred, but I accept that there is a difference between the intent to hand the document to you as described in the record and its actual method of delivery; and to this extent sustain this element of your grievance.
It is not however essential that a document intended for an employee be personally delivered and there are several clear circumstances – for example the absence of an employee from their place of work – where it would not be practicable to achieve this without risking the primary purpose of delivery; to expeditiously acquaint the employee with the content of the document.
While it would have been preferable that the intention to hand the record to you as described in the record would have been preferable (sic), I am satisfied that the primary aim of its delivery to you – which, clearly, occurred – was achieved.
The unsigned nature of the ‘record’
Mr Perryer has advised me that your supervisor did not sign the record originally, but has since provided a signed copy. He advises that the lack of a signature was not deliberate. In this regard I sustain your grievance in that the record was not signed, and the supervisor clearly accepts that it was your preference that it should be.
Again however, it is not necessary for an individual’s signature to be placed upon a document for it to be regarded legitimate.
Firstly, the process of direction does not specify a required form of delivery of a direction, and it is the case that many such directions are provided orally and even implicitly. Additionally, in the increasing use of electronic transmission of documents it is increasingly less relevant that an ink impression carries relevance; and, ultimately, delegated authority is generally made to a position rather than to an individual employee. In this regard it may well be that a position number should be identified rather that a signature, although a typed or otherwise legible name is sufficient to indicate the holder of the office.
Mr Perryer has recommended that your supervisor be reminded of the importance of signing and personally delivering performance management documents to her staff, and I shall do this.
I believe that this decision addresses the substantive matters of your grievance. If you remain aggrieved you may request under the terms of regulation 84 of the Public service regulations that the matter(s) be further investigated by the Merit Protection and Review Agency in accordance with the provisions of section 47 of the Merit Protection (Australian Government Employees) Act 1984.
Such a request should be made in writing and addressed to the Director of the Merit Protection and Review Agency, and should describe the action by which your are aggrieved and the reasons as to why the application is made. The application must be forwarded through the Area Manager, with a request that it be forwarded to the Director."

12. By letter dated 18 May 1999, the applicant wrote to the Director of the Merit Protection and Review Agency (MPRA) enclosing, amongst other things, a copy of the 7 May 1999 letter he received from Mr Plant and stating, amongst other things:

"In accordance with the provisions of section 47 of the Merit Protection (Australian Government Employees) Act 1984, I request a further investigation of the matters detailed below".

13. By letter dated 9 July 1999, the MPRO wrote to the applicant referring to his application dated 2 June 1999 and noting the Agency’s conclusions with respect thereto.
14. Correspondence then passed between Ms Vardon and the applicant, leading to Ms Vardon’s undated letter to the applicant (Letter) which was in the following terms.

"Thank you for your letter of 28 July 1999 and your further letter of 6 October 1999 about your employment with Centrelink.
I apologise for not answering your earlier letter, however, as the matter was still under investigation it would have been inappropriate for me to comment at that time.
In your letter you have raised a number of matters concerning the handling of your grievance by the Merit Protection and Review Agency (MPRA). While I note that you hold concerns as to the procedures adopted by the MPRA, I am unable to comment on the methods of another Agency, and suggest you direct those questions to the MPRA.
You have commented on Centrelink’s examination of the grievances which you lodged and which were accepted as valid within the meaning of the Public Service Regulations. Those Regulations are intended to incorporate various provisions in dealing with Public Service grievances. For example Regulation 82 specifies certain ‘actions’ which may not be investigated; Regulation 83 provides for action other than those identified in Regulation 82 to be investigated and determined; and Regulation 84 provides for an employee who is dissatisfied with a regulation 83 decision to request further review by the MPRA.
I note that while Mr Roger Plant, Manager, Human Resources Programmes, Area Support Office, Area West Australia, did not specify that his investigation and decisions were to be taken under Regulation 83 he did advise you in his letter of 7 May 1999 that he would arrange an assessment of your matters within the terms of the relevant Regulations, that is, Regulations 75 to 83. I am sorry if this has caused you confusion, but I believe Roger Plant’s terms of reference were adequately described to you.
Roger Plant, in his capacity as my delegate, advises me he accepted your letter of 4 December 1998 to me as a grievance within the meaning of Public Service Regulation 82. Your grievance was investigated in accordance with the relevant ‘grievance regulations’ (Regulations 75 to 83). These Regulations provide for an internal investigation/review of certain actions identified by Regulation 82 through the use of Regulation 83, and for subsequent investigation/review by the MPRA under Regulation 84 where the employee remains dissatisfied.
In line with Centrelink guidelines on grievance resolution Roger Plant asked another senior officer, Mr Chris Perryer, Area Support Officer, Area West Australia, to investigate these actions I understand Chris Perryer spoke to you several times at the start of the year before making a recommendation to Roger Plant.
Your grievance matters were accepted as valid within the meaning of Regulation 82 by Roger Plant.
The grievance was accepted, investigated and determined in accordance with Regulation 83, and subsequently you exercised your right of referral to the MPRA for further investigation under Regulation 84.
Ultimately, the procedures followed by Roger Plant appear to me to have been validly based upon the relevant regulations. Similarly, you appear to have accessed your available right of a review of his consequent decisions through the MPRA. I regret any continuing dissatisfaction on your part.
You requested in your letter to me that I provide you with a copy of your Regulation 83 grievance. I have included with this letter copies of documents including your original letters which set out the matters by which you were concerned, and Roger Plant’s response, which set out the results of his investigation, his decisions, and his reasons as provided for by Regulation 83.
Roger Plant advises me your case is now before the Federal Court and will also be considered by the Industrial Relations Commission. As these proceedings will commence shortly, it would be inappropriate for me to comment further at this time."

15. By letter dated 26 March 2002, the applicant wrote to Ms Vardon applying for amendment to personal information contained in, amongst others, the Letter, in accordance with s48 and s49 of the Freedom of Information Act 1992". Insofar as is relevant to this application, the applicant wrote as follows.

"s.49(b)(i) Undated letter from Ms Sue Vardon
s.49(b)(ii) "The grievance was accepted, investigated and determined in accordance with Regulation 83, and subsequently you exercised your right of further referral to the MPRA for further investigation under regulation 84."
s.49(b)(iii) This is an opinion that is incorrect and misleading for the reasons:
s.49(b)(iv) The personal information that the applicant was the recipient of an investigation "in accordance with Regulation 83" is untrue. For reasons set out in detail in submissions to the Administrative Appeals Tribunal, and subsequently the Federal Magistrates Court of Australia, there is no evidence whatsoever that any grievance purportedly lodged by the applicant, or even imputed to the applicant, was ever investigated or determined "in accordance with Regulation 83."
Centrelink has not yet established how the singular action of directing Ms Needham not to answer questions put to her by Mr Perryer, (who had no delegation or jurisdiction to conduct any inquiry anyway), constituted an investigation (for which no application was ever made, and no terms of reference were ever provided to the applicant.)
There has been no explanation why the purported investigation was summarily curtailed, proactively denying the applicant the opportunity to make any submissions, or admit any evidence. There are no grounds whatsoever for the conclusion that the actions of Centrelink constitute an investigation "in accordance with Regulation 83" (which was not referred to at all by Centrelink until this undated letter.)
The applicant was unable to exercise any possible right of "further investigation under regulation 84" given that Mr Plant failed to provide the (non-existent) mandatory documents requested by the MPRA. The fact that Ms Kurtjak failed to investigate any matters raised by the applicant, including the lack of response to questions put to Ms Needham, and also referenced non-existent documents never received, is yet to be referred to the Commonwealth Director of Public Prosecutions. The extent to which Ms Kurtjak’s actions were dictated by Centrelink in an attempt to pervert the course of justice, and the failure of the MPRA to comply with a subpoena from the AAT in a related matter, should also be the subject of judicial review.
s.49(b)(v) The amendment requested is to append the following statement in accordance with s.50 of the FOI Act:
"This statement is untrue. Centrelink is satisfied that there is no basis in fact for the stated opinion."

16. By letter dated 16 May 2002, Ms Greif, the Freedom of Information Officer of Centrelink, wrote to the applicant rejecting the applicant’s application.
17. By letter dated 13 June 2002, the applicant sought a review of Mrs Greif decision.
18. By letter to the applicant dated 11 July 2002, the FOI Review Officer of Centrelink for Western Australia, advised, amongst other things:

"The FOI officer has indicated that in her view the documents reflect the bona fide opinion held by the officers at the time. Clearly the officers were legally competent to hold that opinion, and I agree with Mrs Greif this was a bona fide opinion.
You have indicated that you are unsure whether this is to be treated as a review I have examined Mrs Greif’s decision with a mind to changing it if I thought it was incorrect, therefore I reviewed it and upheld the decision. If you think my decision is incorrect your next step, as you are aware, is to appeal to the AAT".

19. That is precisely what the applicant did on 17 October 2002.

MATTER FOR DETERMINATION

20. The matter for determination is whether Ms Vardon’s statement that "the grievance was accepted, investigated and determined in accordance with Regulation 83, and subsequently you exercised your right of further referral to the MPRA for further investigation under Regulation 84" (Paragraphs) is, in whole or in part, "incorrect" or "misleading" within the meaning of the Freedom of Information Act, 1982 (Cth) (FOI Act).

RELEVANT LEGISLATION

21. The relevant provisions of the FOI Act are as follows

48 Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act of otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and

(b) that has been used, is being used or is available for use by the agency of Minister for an administrative purpose;

the person may apply to the agency or Minister for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister

50(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and
(b) the information is incomplete, incorrect, out of date or misleading; and
(c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the agency or Minister may make the amendment:
(2) The agency or Minister may make the amendment:
(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i) specifying the respects in which the agency of Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii) in a case where the agency or Minister is satisfied that the information is out of date – setting out such information as is required to bring the information up to date.
(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the test of the record as it existed prior to the amendment.

55(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
...
(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48.
(2) Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.
...

(6) The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:

(a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or
(b) the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); or
(c) the amendment relates to a record of an opinion to which neither of the following applies:

(i) the opinion was based on a mistake of fact;

(ii) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.

61(1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

22. The relevant provisions of the Public Service Regulations made under the Public Service Act, 1992 (Cth) are as follows.

Division 3 Investigation of grievances by the Agency
82 Application of Division 3

This Division applies to:
(a) an action taken in relation to an officer other than:
(i) classifying an office;
(ii) fixing the rate of alary applicable to an office;
(iii) fixing the conditions of service or employment of officers, in so far as those conditions are set out in, or under, a law of the Commonwealth, otherwise than applying those conditions to the officer;
(iv) an action arising under the Australian Security Intelligence Organisation Act 1979, the Compensation (Commonwealth Government Employees) Act 1971 or the Superannuation Act (1976);
(v) an action in respect of which the officer has the Act, the Commonwealth Employees (Redeployment and Retirement) Act 1979 or these regulations (other than this Division) a right of review or appeal, whether or not that right has been exercised;
(vi) the annulment of the appointment of the officer under section 47 of the Act;
(vii) refusal to permit under section 52 of the Act the officer to decline a promotion or transfer under that section;
(viii) the appointment, promotion or transfer of a person to an office to which the officer had applied to be promoted or transferred; and
(ix) dispensing with, under section 82AH of the Act, the services of the officer; and
(b) an action taken in relation to an officer that is part of the procedure adopted for the purpose of an action referred to in subparagraph (a) (v), (vi), (vii), (viii) or (ix) taken in relation to the officer;
but does not apply to a decision to which Division 2 applies.

83 Investigation by the relevant authority
(1) An officer aggrieved by an action to which this Division applies taken in relation to the officer may request the relevant authority to investigate the action.
(2) A request under subregulation (1) by an officer for investigation of an action taken shall:
(a) be in writing
(b) describe the action;
(c) set out the reasons why the officer is aggrieved by the action; and
(d) be furnished:
(i) in the case of an action that concerns the conduct of the supervisor of the officer – to the relevant authority; or
(ii) in any other case – to the supervisor of the officer who shall, as soon as practicable, refer the request to the relevant authority.
(3) As soon as practicable after receiving a request under subregulation (1) to investigate an action taken in relation to an officer, the relevant authority shall:
(a) investigate the action in any manner that the authority think fit; and
(b) cause the officer to be advised of the results of the investigation, of any decision of that authority consequent upon the investigation and of the reasons for that decision.
(4) For the purposes of an investigation under this regulation by the relevant authority into an action taken in relation to an officer, that authority may request any person, including the officer, to provide information or documents to the action.
(5) After 21 days after an officer has under subregulation (2) furnished to the relevant authority or to the supervisor of the officer, as the case require, a request for investigation of an action, the officer, may in writing, request the Agency to do either or both of the following:
(a) request that authority to state how far that investigation has progressed;
(b) request that authority to expedite that investigation.
(6) As soon as practicable after receiving a request under subregulation (5), the Agency shall comply with that request.
(7) The relevant authority shall, not later than 10 days after receiving a request under subregulation (5) concerning an investigation by that authority of an action, notify the Agency of the extent of the progress of that investigation.

84 Investigation by the Agency
(1) For the purposes of section 47 of the Merit Protection Act, application may be made to the Agency for the investigation, in accordance with Division 4 of Part II of that Act, of an action to which this Division applies taken in relation to an officer that has been investigated by the relevant authority under regulation 83 if the officer remains aggrieved by the action.
(2) An application under subregulation (1) for investigation of an action shall:
(a) be in writing;
(b) be addressed to the Director;
(c) describe the action;
(d) set out the reasons why the application is made; and
(e) be furnished to the relevant authority with a request that that authority furnish the application to the Director.

85 Documents to be furnished by the relevant authority
Within 14 Days after receiving an application under regulation 84 for investigation by the Agency of an action taken in relation to an officer, the relevant authority shall:
(a) furnish to the Director:
(i) the application;
(ii) the request by the officer under regulation 83 for investigation by that authority of the action;
(iii) a copy of the advice given under subregulation 83(3) by that authority to the officer as a result of that investigation;
(iv) any other document relevant to the action or that investigation; and
(v) if necessary, a report on anything done by that authority in connection with that action or that investigation; and
(b) furnish the officer:
(i) a copy of any document referred to in subparagraph (a)(iv); and
(ii) a copy of any report referred to in subparagraph (a)(v).

PREVIOUS DECISION OF TRIBUNAL

23. This is not the first time the Letter has been the subject of an application before the Tribunal. In this regard I refer to the Decision and Reasons for Decision of Deputy President Hotop (then Senior Member of the Tribunal) in WAU & Chief Executive Officer, Commonwealth Services Delivery Agency (Centrelink) (W2000/79). In that matter the Tribunal was concerned with, amongst other things, the following parts of the Letter:
• "You have commented on Centrelink’s examination of the grievances which you lodged and which were accepted as valid within the meaning of the Public Service Regulations"
• "Your grievance was investigated in accordance with the relevant ‘grievance regulations’ (Regulation 75 to 83)".
• "Your grievance matters were accepted as valid within the meaning of Regulation 82 by Roger Plant".

24. As to those parts with the Letter, the Deputy President held as follows (pages 10 and 11)

• "The first relevant passage does not state that the applicant lodged a grievance under reg 83 of the Public Service regulations. It refers merely to "the grievances which [the applicant] lodged...". The word "grievance" is defined in The Macquarie Dictionary to mean:

"a wrong, real or fancied, considered as grounds for complaint"

• The applicant’s 2 relevant letters to the respondent in November and December 1998 were letters of complaint and their receipt by the respondent did, therefore, constitute the lodgement of "grievances" (as that word is generally understood). The passage then goes on to state that those "grievances....were accepted as valid within the meaning of the Public Service Regulations". That statement, as confirmed by Mr Plant in his evidence, accords precisely with the facts (of which he has first-hand knowledge).
• Likewise, the second relevant passage, as confirmed by Mr Plant in his evidence, accords precisely with the facts (of which he has first-hand knowledge).
• The third relevant passage is also factually accurate, for the same reasons as were given above in relation to the first passage."

25. By reason of the decision of the Deputy President, the respondent, prior to the hearing of this application, applied for an order dismissing the application on the basis that it was seeking to reopen matters which had previously been agitated before and determined by the Tribunal. I declined to make the order sought by the respondent, but on 14 June 2006 I did direct pursuant to s33 of the Administrative Appeals Tribunal Act, 1975 (Cth) (AAT Act) that "the hearing of the Application will exclude all matters determined by the Tribunal in the matter ...W2000/79"

EFFECT OF PRIOR DECISION UPON THIS APPLICATION

26. Mr Corbould, counsel for the respondent, submitted that, having regard to the matters raised in this application, the matters determined by the Deputy President in W2000/79 and the direction I made on 14 June 2006, there are no grounds by which the applicant can now contend that the Paragraph was in "incorrect" and/or "misleading".
27. In W2000/79, the Deputy President determined, amongst other things, that:
• The applicant lodged a grievance with Centrelink, albeit not a "grievance" within the meaning of regulation 82.
• Notwithstanding that it was not the applicant’s intention to lodge a grievance pursuant to the Public Service Regulations, the applicant’s grievance was "accepted as valid" and "investigated in accordance with the relevant "grievance regulations", namely Regulations 75 to 83 of the Public Service Regulations.
28. Given that, and having regard to the direction I made on 14 June 2006, it follows that the hearing of this application must exclude those matters.
29. I therefore conclude that it is not open for the applicant to agitate before me, or for me to consider in this application, whether or not the following portion of the paragraph was "incorrect" and/or "misleading", namely that "the grievance was accepted (and) investigated in accordance with Regulation 83".
30. However, I do not consider the balance of the Paragraph, namely "the grievance was...determined in accordance with regulation 83, and subsequently you exercised your right of further referral to the MPRA for further investigation in regulation 84" to being matters determined by the Tribunal in W2000/79. Accordingly, they are matters which the applicant may agitate in this application and which I must consider and determine.
31. Also, for the sake of completeness I propose to consider and make findings with respect to the matters I have held be excluded from this application in the event that others take a different view as to my conclusions in that regard.

ONUS OF PROOF

32. It was accepted by both the applicant and counsel for the respondent that, whilst the applicant bore an onus of establishing a "prima face case", once that had occurred the onus fell upon the respondent to justify its decision. In this regard I refer to section 61(1) of the FOI Act, as well as the decision of Deputy President Hotop (then Senior Member) in Re Boyd & Health Insurance Commission (AAT11870), 19 May 1997 at [42] and the decision of this Tribunal in Mulder & Department of Immigration and Multicultural and Indigenous Affairs [2002] AAT1347 at [10], [11] and [12].
33. I note that, during the course of his submissions, the applicant submitted that where a decision under section 54(2) of the FOI Act has been made, the Tribunal does not embark upon a hearing de novo, but is only required to adjudicate whether the agency had met "the onus of establishing that a decision given in respect of the request was justified". The applicant submitted that the Tribunal cannot vary this requirement given the mandate of section 33(1)(b) of the AAT Act mandate, namely compliance with "requirements...of every other enactment", (in this case s61(1) of the FOI Act). He submitted that "the de novo review has already been undertaken by the FOI Review Officer in accordance with s54(2)".
34. Precisely what the applicant was submitting was and remains unclear, although I apprehend that he was submitting that the respondent was precluded from introducing before the Tribunal any grounds or evidence to justify its decision other than those "given" for the decision at the time.
35. I find it unnecessary to form any view in respect of that submission as, at the hearing of the application, the respondent did not seek to justify the decision by reference to any grounds other than those given for the decision at the time, or by reference to any evidence that did not exist at the time the decision was given.

THE MEANING OF "MISLEADING"

36. I see no reason why the word "misleading" as it appears in the FOI Act ought be given a meaning other than its ordinary and commonly understood meaning. Indeed, I did not apprehend either party before me to suggest otherwise.
37. Nevertheless, the applicant referred to Chapter 6 of Centrelink’s FOI Manual, in which, at paragraph 6.170, the following definition appears for the words "misleading" in the context of the FOI Act:

"misleading- information can be said to be misleading if it could lead a person into error, or made, although literally true, convey another "untrue" meaning, or if it could mislead any ordinary person who might be expected to read it but not a specialist reader. For example, terminology or jargon which is used by Centerlink officers may have an obvious meaning for them but a completely different meaning for a client".

38. What the words means is a matter of statutory interpretation; it is not governed by whatever might appear in Centrelink’s FOI Manual. Notwithstanding, what appears in Centrelink’s FOI Manual certainly falls within what I consider to be the proper construction of the word "misleading" in the FOI Act, (and I note that, when specifically asked by the Tribunal, counsel for the respondent did not disagree).

THE EVIDENCE

39. At the hearing of the application the Tribunal received a bundle of documents and supplementary documents prepared by the respondent pursuant to s37 of the AAT Act.
40. In addition, the applicant tendered the following evidence:
• an affidavit sworn by the applicant dated 3 October 2006;
• an extract of Centrelink’s Policy on Grievances ;
• a letter dated 1 June 1999 from Mr Plant to the MPRA (with a hand written notation);
• a letter dated 24 January 2003 from Centrelink to the Deputy Registrar of the Administrative Appeals Tribunal, a copy of which was forwarded to the applicant;
• a letter dated 25 November 2002 from Centrelink to the District Registrar of the Administrative Appeals Tribunal, a copy of which was also provided to the applicant.

41. It is a trite proposition that the rules of evidence do not apply to an application under the AAT Act. For that reason I received the applicant’s affidavit, notwithstanding that it largely comprised of matters which were argumentative in nature or facts which do not directly bear upon the matters to be determined by the Tribunal.
42. For those reasons, although I have read and considered the affidavit, I do not consider it to assist in the determination of the matters before me beyond the documentary record contained in the documents provided by the respondent pursuant to s37 of the AAT Act. I therefore do not summarise in these Reasons the matters deposed by the applicant.

FINDINGS

43. It is clear that the applicant had a "grievance". It is equally clear that when the applicant communicated his "reasons" to his superiors, it was not and not intended by the applicant to be the making of a "grievance" pursuant to regulation 83.
44. The evidence before the Tribunal, namely the correspondence to which I have referred in the "Background" section of these Reasons, lead to the inevitable conclusion that the applicant’s "grievance" "was accepted, investigated and determined (by Centrelink) in accordance with regulation 83".
45. The evidence also clearly establishes that, by his letter to MPRA dated 18 May 1999, the applicant, subsequent to Centrelink’s determination in accordance with Regulation 83, "exercised (his) right of further referral to the MPRA for further investigation under regulation 84"
46. I therefore find that the respondent has overwhelmingly discharged the onus upon it to show that no part of the Paragraph is incorrect.
47. As to whether or not any part of the Paragraph is misleading, the applicant’s submissions were to the effect that the paragraph implied or inferred:
• The applicant had made a grievance in accordance with regulation 83, when he had not;
• The grievance had been investigated and determined in strict accordance with the Act and Regulations, when it had not;
• a valid referral to the MPRA with respect a "right" to do so, which was strictly not speaking correct because:
(a) as a result of the matters to which I have referred, there was no investigation or determination in accordance with regulation 83, and therefore the "right" under regulation 84 had not arisen; and/or
(b) there was no "investigation under regulation 84" because MPRA had not complied with regulation 85.
48. Is the Paragraph misleading within the meaning of the FOI Act because it does not state that although accepted, investigated and determined in accordance with the regulations, it was not one that the applicant had made or intended to make under the regulations. I think not. I do not believe an ordinary person reading the Paragraph, or indeed a person who is intimately familiar with the detailed machinations of the regulations, would turn their mind to the question of whether or not the grievance was in fact one made or intended to be made under the regulations and conclude from the Paragraph that is was.
49. I do accept, however, that the words "in accordance with regulation 83" convey a meaning greater than that which would have been conveyed if words such as "pursuant to" or "under" regulation 83 had been used. I consider the words "used in accordance with" give rise to the inference that the acceptance, investigation and determination of the "grievance" was carried out pursuant to Regulation 83 and in accordance with its terms; see Callaghan and Secretary, department of Family Community Services (2000) AAT 907 ; Robert La and federated Furnishing Trade Society of Australasia (1993) 112 ALR 137. I therefore substantially accept the applicant’s submissions regards.
50. However, I am satisfied that the respondent has established on the evidence that the acceptance, investigation and determination of the "grievance" was "in accordance with regulation 83". I consider the word "investigate" where used in regulation 83 (3) should be given its natural and ordinary meaning. I do not accept the applicant’s submission that an investigation necessarily must include contact with the applicant (although, without such contact, it may well be that the quality of the investigation may be open to criticism). In any event, I find as a fact that the applicant was contacted during the course of the investigation, both in writing and by telephone; see paragraphs 4, 5, 6 and 8.in the "background" section of these Reasons.
51. By letter dated 2 May 1999, the applicant was advised of the results of the investigation, of the decision consequent upon the investigation and the reasons for that decision.
52. The applicant submitted that there had not been compliance with s83(3) as the investigation had not been instigated "as soon as practicable" after receiving the request from the subregulation (1)". I find no substance in this submission. I see no reason why Mr Plant’s letter of 4 December 1998 to the applicant should not be taken as the commencement of the investigation. I so find.
53. Alternatively, if it be said that the investigation did not begin until Mr Perryer advised of his appointment in March 1999, I find the words "as soon as practicable" are still satisfied as the word "practicable" allows one to have regard to the practicalities of the situation. That entitles one to have regard to matters such as:
• the clarification of the "grievance" with the applicant;
• the Christmas/New Year period;
• the internal machinations needed to be undertaken in order to instigate the investigation.

54. The applicant also contended that the investigation was not one done in accordance with the regulations because there was not proof of Mr Perryer’s authority to conduct it and that no evidence was adduced to establish that he held a delegation from the respondent. Again I conclude this submission to be without substance. The regulations speak of the relevant authority carrying out an investigation. The correspondence to which I have referred to in the "background" section of these Reasons make it clear that, as a matter of fact, the Chief Executive Officer of Centrelink requested Mr Plant to undertake and manage "an appropriate form of "conflict" resolution", and that:
• Mr Plant then sought the assistance of Mr Perryer and asked that he seek an assessment of the matter under the terms of Public Service Regulations ;
• Mr Perryer did that and reported back to Mr Plant;
• Mr Plant considered Mr Perryer’s report and recommendations;
• Mr Plant advised the applicant of the results of the investigation, of the decisions made and the reasons for those decisions.;

55. There is nothing before the Tribunal to in anyway suggest that the position was other than indicated in the correspondence to which I have referred or to otherwise bring into doubt the authority of the various persons who were involved in the matter on behalf of Centrelink.
56. As for that part of the Paragraph that refers to the applicant subsequently exercising his right of referral under regulation 84, again I do not accept the applicant’s submissions. There is nothing conveyed by those words other than the fact that, after the determination of the applicants grievance "in accordance with regulation 83", he exercised his right of further referral to the MPRA for further investigation under regulation 84. As a matter of fact and law, that right existed (and would have existed even if there had been some defect in Centrelink’s determination in accordance with regulation 83). Further, nothing in the Paragraph refers to the investigation actually carried out by MPRA. Regulation 85 deals with the investigation of a referral made under regulation 84. It is the referral, not the investigation, to which the relevant part of the Paragraph refers.
57. Accordingly, whether or not the investigation was carried out properly (or at all) I find to be irrelevant to a consideration of whether or not the applicant exercised his right of further referral to the MPRA for further investigation under regulation 84. Whether there was an investigation as required by regulation 85, or if there was, whether it was deficient in any way, cannot cause the relevant words of the Paragraph (which are solely concerned with the exercise of the right of referral) to be "misleading" on any definition of that word.
58. I therefore conclude that the respondent has discharged the onus upon it of establishing that the Paragraph is not, either in whole or in part, "incorrect" or "misleading".
59. It therefore follows that the reviewable decision dated 11 July 2002 ought to be affirmed.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member

Signed: .........(Sgd. Ms R Riberi)...............................
Associate

Date/s of Hearing 22 November 2006
Date of Decision 15 December 2006
Representative for the Applicant Applicant appeared in person
Counsel for the Respondent Mr P Corbould
Solicitor for the Respondent Australian Government Solicitor

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•	in paragraph 48, the full stop at the end of the first sentence is to be deleted and a question mark is to be substituted therefor;
•	in paragraph 49, the word "regards" is to be deleted.

1.	In 1998, the applicant was a member of the staff of Centrelink.
2.	The applicant took exception to a document prepared by one of his superiors. It purported to be a record of a conversation with the applicant and was dated 16 September 1998.
3.	In a letter dated 26 November 1998, the applicant wrote to Ms Vardon, the Chief Executive Officer of Centrelink, with respect to the purported record of conversation.
4.	By letter dated 4 December 1998, Mr Robert Plant, the Manager, Human Resource Programmes of Centrelink, wrote to the applicant in the following terms:

5.	By letter dated 11 December 1998, the applicant wrote to Ms Vardon "in response to the letter from Mr Roger Plant dated 4 December 1998" and provided certain information "in support of my 26 November 1998 request".
6.	By email dated 12 January 1999, Ms Vardon wrote to the applicant in the following terms;

8.	On 11 March 1999, there occurred a telephone conversation between the applicant and Mr Perryer in which, amongst other things, Mr Perryer sought to clarify the applicant’s grievances and advised the applicant of his role.
9.	By letter 1 April 1996, Mr Perryer wrote to Mr Plant in the following terms:

13.	By letter dated 9 July 1999, the MPRO wrote to the applicant referring to his application dated 2 June 1999 and noting the Agency’s conclusions with respect thereto.
14.	Correspondence then passed between Ms Vardon and the applicant, leading to Ms Vardon’s undated letter to the applicant (Letter) which was in the following terms.

16.	By letter dated 16 May 2002, Ms Greif, the Freedom of Information Officer of Centrelink, wrote to the applicant rejecting the applicant’s application.
17.	By letter dated 13 June 2002, the applicant sought a review of Mrs Greif decision.
18.	By letter to the applicant dated 11 July 2002, the FOI Review Officer of Centrelink for Western Australia, advised, amongst other things:

23.	This is not the first time the Letter has been the subject of an application before the Tribunal. In this regard I refer to the Decision and Reasons for Decision of Deputy President Hotop (then Senior Member of the Tribunal) in WAU & Chief Executive Officer, Commonwealth Services Delivery Agency (Centrelink) (W2000/79). In that matter the Tribunal was concerned with, amongst other things, the following parts of the Letter:
•	"You have commented on Centrelink’s examination of the grievances which you lodged and which were accepted as valid within the meaning of the Public Service Regulations"
•	"Your grievance was investigated in accordance with the relevant ‘grievance regulations’ (Regulation 75 to 83)".
•	"Your grievance matters were accepted as valid within the meaning of Regulation 82 by Roger Plant".

26.	Mr Corbould, counsel for the respondent, submitted that, having regard to the matters raised in this application, the matters determined by the Deputy President in W2000/79 and the direction I made on 14 June 2006, there are no grounds by which the applicant can now contend that the Paragraph was in "incorrect" and/or "misleading".
27.	In W2000/79, the Deputy President determined, amongst other things, that:
•	The applicant lodged a grievance with Centrelink, albeit not a "grievance" within the meaning of regulation 82.
•	Notwithstanding that it was not the applicant’s intention to lodge a grievance pursuant to the Public Service Regulations, the applicant’s grievance was "accepted as valid" and "investigated in accordance with the relevant "grievance regulations", namely Regulations 75 to 83 of the Public Service Regulations.
28.	Given that, and having regard to the direction I made on 14 June 2006, it follows that the hearing of this application must exclude those matters.
29.	I therefore conclude that it is not open for the applicant to agitate before me, or for me to consider in this application, whether or not the following portion of the paragraph was "incorrect" and/or "misleading", namely that "the grievance was accepted (and) investigated in accordance with Regulation 83".
30.	However, I do not consider the balance of the Paragraph, namely "the grievance was...determined in accordance with regulation 83, and subsequently you exercised your right of further referral to the MPRA for further investigation in regulation 84" to being matters determined by the Tribunal in W2000/79. Accordingly, they are matters which the applicant may agitate in this application and which I must consider and determine.
31.	Also, for the sake of completeness I propose to consider and make findings with respect to the matters I have held be excluded from this application in the event that others take a different view as to my conclusions in that regard.

32.	It was accepted by both the applicant and counsel for the respondent that, whilst the applicant bore an onus of establishing a "prima face case", once that had occurred the onus fell upon the respondent to justify its decision. In this regard I refer to section 61(1) of the FOI Act, as well as the decision of Deputy President Hotop (then Senior Member) in Re Boyd & Health Insurance Commission (AAT11870), 19 May 1997 at [42] and the decision of this Tribunal in Mulder & Department of Immigration and Multicultural and Indigenous Affairs [2002] AAT1347 at [10], [11] and [12].
33.	I note that, during the course of his submissions, the applicant submitted that where a decision under section 54(2) of the FOI Act has been made, the Tribunal does not embark upon a hearing de novo, but is only required to adjudicate whether the agency had met "the onus of establishing that a decision given in respect of the request was justified". The applicant submitted that the Tribunal cannot vary this requirement given the mandate of section 33(1)(b) of the AAT Act mandate, namely compliance with "requirements...of every other enactment", (in this case s61(1) of the FOI Act). He submitted that "the de novo review has already been undertaken by the FOI Review Officer in accordance with s54(2)".
34.	Precisely what the applicant was submitting was and remains unclear, although I apprehend that he was submitting that the respondent was precluded from introducing before the Tribunal any grounds or evidence to justify its decision other than those "given" for the decision at the time.
35.	I find it unnecessary to form any view in respect of that submission as, at the hearing of the application, the respondent did not seek to justify the decision by reference to any grounds other than those given for the decision at the time, or by reference to any evidence that did not exist at the time the decision was given.

36.	I see no reason why the word "misleading" as it appears in the FOI Act ought be given a meaning other than its ordinary and commonly understood meaning. Indeed, I did not apprehend either party before me to suggest otherwise.
37.	Nevertheless, the applicant referred to Chapter 6 of Centrelink’s FOI Manual, in which, at paragraph 6.170, the following definition appears for the words "misleading" in the context of the FOI Act:

39.	At the hearing of the application the Tribunal received a bundle of documents and supplementary documents prepared by the respondent pursuant to s37 of the AAT Act.
40.	In addition, the applicant tendered the following evidence:
•	an affidavit sworn by the applicant dated 3 October 2006;
•	an extract of Centrelink’s Policy on Grievances ;
•	a letter dated 1 June 1999 from Mr Plant to the MPRA (with a hand written notation);
•	a letter dated 24 January 2003 from Centrelink to the Deputy Registrar of the Administrative Appeals Tribunal, a copy of which was forwarded to the applicant;
•	a letter dated 25 November 2002 from Centrelink to the District Registrar of the Administrative Appeals Tribunal, a copy of which was also provided to the applicant.

41.	It is a trite proposition that the rules of evidence do not apply to an application under the AAT Act. For that reason I received the applicant’s affidavit, notwithstanding that it largely comprised of matters which were argumentative in nature or facts which do not directly bear upon the matters to be determined by the Tribunal.
42.	For those reasons, although I have read and considered the affidavit, I do not consider it to assist in the determination of the matters before me beyond the documentary record contained in the documents provided by the respondent pursuant to s37 of the AAT Act. I therefore do not summarise in these Reasons the matters deposed by the applicant.

43.	It is clear that the applicant had a "grievance". It is equally clear that when the applicant communicated his "reasons" to his superiors, it was not and not intended by the applicant to be the making of a "grievance" pursuant to regulation 83.
44.	The evidence before the Tribunal, namely the correspondence to which I have referred in the "Background" section of these Reasons, lead to the inevitable conclusion that the applicant’s "grievance" "was accepted, investigated and determined (by Centrelink) in accordance with regulation 83".
45.	The evidence also clearly establishes that, by his letter to MPRA dated 18 May 1999, the applicant, subsequent to Centrelink’s determination in accordance with Regulation 83, "exercised (his) right of further referral to the MPRA for further investigation under regulation 84"
46.	I therefore find that the respondent has overwhelmingly discharged the onus upon it to show that no part of the Paragraph is incorrect.
47.	As to whether or not any part of the Paragraph is misleading, the applicant’s submissions were to the effect that the paragraph implied or inferred:
•	The applicant had made a grievance in accordance with regulation 83, when he had not;
•	The grievance had been investigated and determined in strict accordance with the Act and Regulations, when it had not;
•	a valid referral to the MPRA with respect a "right" to do so, which was strictly not speaking correct because:
(a)	as a result of the matters to which I have referred, there was no investigation or determination in accordance with regulation 83, and therefore the "right" under regulation 84 had not arisen; and/or
(b)	there was no "investigation under regulation 84" because MPRA had not complied with regulation 85.
48.	Is the Paragraph misleading within the meaning of the FOI Act because it does not state that although accepted, investigated and determined in accordance with the regulations, it was not one that the applicant had made or intended to make under the regulations. I think not. I do not believe an ordinary person reading the Paragraph, or indeed a person who is intimately familiar with the detailed machinations of the regulations, would turn their mind to the question of whether or not the grievance was in fact one made or intended to be made under the regulations and conclude from the Paragraph that is was.
49.	I do accept, however, that the words "in accordance with regulation 83" convey a meaning greater than that which would have been conveyed if words such as "pursuant to" or "under" regulation 83 had been used. I consider the words "used in accordance with" give rise to the inference that the acceptance, investigation and determination of the "grievance" was carried out pursuant to Regulation 83 and in accordance with its terms; see Callaghan and Secretary, department of Family Community Services (2000) AAT 907 ; Robert La and federated Furnishing Trade Society of Australasia (1993) 112 ALR 137. I therefore substantially accept the applicant’s submissions regards.
50.	However, I am satisfied that the respondent has established on the evidence that the acceptance, investigation and determination of the "grievance" was "in accordance with regulation 83". I consider the word "investigate" where used in regulation 83 (3) should be given its natural and ordinary meaning. I do not accept the applicant’s submission that an investigation necessarily must include contact with the applicant (although, without such contact, it may well be that the quality of the investigation may be open to criticism). In any event, I find as a fact that the applicant was contacted during the course of the investigation, both in writing and by telephone; see paragraphs 4, 5, 6 and 8.in the "background" section of these Reasons.
51.	By letter dated 2 May 1999, the applicant was advised of the results of the investigation, of the decision consequent upon the investigation and the reasons for that decision.
52.	The applicant submitted that there had not been compliance with s83(3) as the investigation had not been instigated "as soon as practicable" after receiving the request from the subregulation (1)". I find no substance in this submission. I see no reason why Mr Plant’s letter of 4 December 1998 to the applicant should not be taken as the commencement of the investigation. I so find.
53.	Alternatively, if it be said that the investigation did not begin until Mr Perryer advised of his appointment in March 1999, I find the words "as soon as practicable" are still satisfied as the word "practicable" allows one to have regard to the practicalities of the situation. That entitles one to have regard to matters such as:
•	the clarification of the "grievance" with the applicant;
•	the Christmas/New Year period;
•	the internal machinations needed to be undertaken in order to instigate the investigation.

54.	The applicant also contended that the investigation was not one done in accordance with the regulations because there was not proof of Mr Perryer’s authority to conduct it and that no evidence was adduced to establish that he held a delegation from the respondent. Again I conclude this submission to be without substance. The regulations speak of the relevant authority carrying out an investigation. The correspondence to which I have referred to in the "background" section of these Reasons make it clear that, as a matter of fact, the Chief Executive Officer of Centrelink requested Mr Plant to undertake and manage "an appropriate form of "conflict" resolution", and that:
•	Mr Plant then sought the assistance of Mr Perryer and asked that he seek an assessment of the matter under the terms of Public Service Regulations ;
•	Mr Perryer did that and reported back to Mr Plant;
•	Mr Plant considered Mr Perryer’s report and recommendations;
•	Mr Plant advised the applicant of the results of the investigation, of the decisions made and the reasons for those decisions.;

55.	There is nothing before the Tribunal to in anyway suggest that the position was other than indicated in the correspondence to which I have referred or to otherwise bring into doubt the authority of the various persons who were involved in the matter on behalf of Centrelink.
56.	As for that part of the Paragraph that refers to the applicant subsequently exercising his right of referral under regulation 84, again I do not accept the applicant’s submissions. There is nothing conveyed by those words other than the fact that, after the determination of the applicants grievance "in accordance with regulation 83", he exercised his right of further referral to the MPRA for further investigation under regulation 84. As a matter of fact and law, that right existed (and would have existed even if there had been some defect in Centrelink’s determination in accordance with regulation 83). Further, nothing in the Paragraph refers to the investigation actually carried out by MPRA. Regulation 85 deals with the investigation of a referral made under regulation 84. It is the referral, not the investigation, to which the relevant part of the Paragraph refers.
57.	Accordingly, whether or not the investigation was carried out properly (or at all) I find to be irrelevant to a consideration of whether or not the applicant exercised his right of further referral to the MPRA for further investigation under regulation 84. Whether there was an investigation as required by regulation 85, or if there was, whether it was deficient in any way, cannot cause the relevant words of the Paragraph (which are solely concerned with the exercise of the right of referral) to be "misleading" on any definition of that word.
58.	I therefore conclude that the respondent has discharged the onus upon it of establishing that the Paragraph is not, either in whole or in part, "incorrect" or "misleading".
59.	It therefore follows that the reviewable decision dated 11 July 2002 ought to be affirmed.