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[2007] AATA 1969
Administrative Appeals Tribunal of Australia
2007-11-19
Original judgment source is linked above.
And: SECRETARY, DEPARTMENT OF PRIME MINISTER AND CABINET
CORRIGENDUM TO DECISION [2007] AATA 1969
The Tribunal amends its decision and reasons for decision published on 19 November 2007. Paragraph 139 should read as follows:
"139. In making this submission, Mr McKinnon relied on a passage from the judgment of Bowen CJ and Fisher J in News Corporation v National Companies and Securities Commission[1] in which they said that s 36(1)(b) "... is to be interpreted according to the words used, bearing in mind the stated object of the Act."[2] What he did not refer to was the earlier passage in that judgment to the effect that it is inappropriate to interpret the exemptions narrowly or the right of access widely in light of the FOI Act's stated object in s 3.[3] It is inappropriate to lean either way for "The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved."[4] That passage puts the passage to which Mr McKinnon referred in its proper context. Section 3(1)(b) is a statement of intent. Part IV of the FOI Act sets out what Parliament has regarded as the "exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities." That it has done so is emphasised by the fact that each exemption is to be construed according to its own terms. It is not to be read as limited in its scope or operation in any way by any other provision of Part IV. That is the effect of s 32(a)."
CATCHWORDS - FREEDOM OF INFORMATION - refusal of access to documents - conclusive certificates - whether reasonable grounds for claim that disclosure of certain documents contrary to public interest - whether certain documents exempt under s 34 - whether certain documents subject to legal professional privilege - whether client/solicitor relationship - decision affirmed.
Judiciary Act 1901 ss 55D, 55E, 55I, 55J, 55K, 55M, 55N, 55Q
AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705
Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475
Attorney-General's Department v Cockcroft (1986) 10 FCR 180; 64 ALR 97
Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; 11 ALR 577
Harris v Australian Broadcasting Commission [1984] FCA 8; (1983) 51 ALR 581
McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70
Minter v Priest [1930] AC 558
News Corporation Ltd v National Companies and Securities Commission (No 4) (1984) 1 FCR 64; (1984) 57 ALR 277
News Corporation v National Companies and Securities Commission (1983) 6 ALD 53
Re Chapman and Minister for Aboriginal & Torres Strait Islander Affairs (1996) 43 ALD 139
Re Doran Constructions Pty Ltd (in liq) [2002] NSWSC 215; (2001) 194 ALR 101
Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626
Re McDonald Pty Ltd and Department of Territories and Local Government (1985) 9 ALD 236
Re McGarvin and Australian Prudential Regulation Authority (1998) 53 ALD 161
Re Swiss Aluminium and Department of Trade (1985) 9 ALD 243
Re Waterford and Treasurer of the Commonwealth (No 1) (1984) 6 ALN N347
Rich v Australian Securities and Investments Commission [2004] HCA 42
Shergold v Tanner(2000) [2000] FCA 1420; 102 FCR 215; 179 ALR 150; 62 ALD 584
The Commonwealth of Australia v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561
Wallace and Director of Public Prosecutions [2003] AATA 119
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492
Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54
DECISION AND REASONS FOR DECISION [2007] AATA 1969
And SECRETARY, DEPARTMENT OF PRIME MINISTER AND CABINET
Decision: The Tribunal affirms the decision of the respondent dated 29 November 2005.
Under the Freedom of Information Act 1982 (FOI Act), Mr McKinnon asked the Department of Prime Minister and Cabinet (PM&C) on 20 July 2005 for access to certain documents relating to options that had been considered for industrial reform in the previous 12 months or that related to particular consequences of industrial relations reform. He excluded Cabinet documents from his request.
Dr Shergold, the Secretary to PM&C, issued two conclusive certificates under s 36(3) of the FOI Act. I have decided that the decisions should be affirmed but, in doing so, have not accepted all of the grounds upon which PM&C relied.
2. Mr McKinnon made his request to PM&C in the following terms:
"(a) options considered on industrial relations reform in the last 12 months and any forecasts or analysis or other reports or documents on (b) whether dismissals will increase (b) the extent of any expected jobs growth (c) the extent and likelihood of any fall in real incomes for any Australians (d) any forecast or assessment of the likelihood or extent that entitlements like four weeks annual leave, sick leave, leave loading, shift allowance and penalties will no long provided by employers. ..."[5]
On 1 August 2005, he modified his request to exclude Cabinet documents including Cabinet submissions, Cabinet minutes and letters considered under the line by Cabinet.[6]
3. PM&C did not respond to Mr McKinnon's request within the time limits specified in s 15 of the FOI Act. As a consequence, PM&C was deemed to have made a decision refusing to grant Mr McKinnon access to the documents he requested. That is the effect of s 56(1).
4. After Mr McKinnon applied on 10 November 2005 for review of the deemed decision, Mr Patrick Sedgley, who was then the Acting Assistant Secretary of the Taxation, Superannuation and Workplace Relations Branch (TSWR Branch) in PM&C, identified 56 documents as coming within the scope of Mr McKinnon's request. He did so on 29 November 2005 and they are numbered 1 to 56. Mr Sedgley decided that two of the documents could be released in full but that parts of 18 others were exempt from disclosure under the FOI Act and that the remaining 36 documents were exempt in their entirety. Mr Sedgley relied variously on the exemptions in ss 34 and 36 of the FOI Act. Relying on s 56(5), I decided on 30 November 2005 to treat the application lodged by Mr McKinnon as extending to a review of Mr Sedgley's decision to refuse access to the 54 documents.
5. After a further review of Mr McKinnon's request and of PM&C's documents, Mr Sedgley decided on 21 December 2005 that two further documents came within the scope of that request. He decided that these documents, numbered 57 and 58, were also exempt and relied on ss 34 and 36.
6. By June 2006, a further four documents, numbered 13A to 13D, had been identified as coming within the scope of the request. They were claimed to be exempt under s 36.
7. On 1 August 2006, the Secretary of PM&C, Dr Peter Shergold, signed two conclusive certificates under s 36(3). The first related to documents numbered 1 to 13D (other than documents and specified 11 grounds numbered from (a) to (k) (first certificate). The second related to documents numbered 14 to 58 and specified six grounds numbered from (a) to (f) (second certificate). Grounds (a) to (g) in the first certificate were not replicated in the second certificate. Grounds (h), (i) and (j) in the first replicated grounds (c), (e) and (a) respectively in the second. Ground (k) was partially replicated in ground (b) in the second. Grounds (d) and (f) in the second certificate were not replicated in the first certificate. With that in mind, I will set out the first certificate in full but set out the second only in so far as it differs from the first. Each ground is followed by the shorthand name assigned to it by PM&C's representatives.
"(a) While these documents were not formally placed before the Minister for Employment and Workplace Relations (the Minister) or Cabinet they were an integral component of the high level policy development and advising. For this reason many of these documents were classified as Cabinet-in-Confidence. In these circumstances the important public interest reasons which warrant preserving the confidentiality of Cabinet documents and deliberations apply with considerable force also to these documents. [Cabinet-related ground]
(b) These documents were an integral part of DEWR's process for developing policy advice for the Minister and Government. If the documents are made public, members of the public may seek to deduce from them whether particular legislative changes were or were not determined by the Government consistent with DEWR's recommendations to the Minister. Australia's system of parliamentary government would not be advanced, and in fact would be injured, if Government decision-making were to be subjected to this type of ex post facto analysis. [DEWR recommendations ground]
(c) The Government has responsibility for its legislative agenda. However, the public interest is not served by the Government and Minister being placed in a position where they are publicly answerable or accountable for an entirely different matter, that is, whether Government decisions are or are not taken in line with Departmental advice. [accountability ground]
(d) The public interest demands that the important role of the Australian Public Service as a professional and apolitical service equally able to serve either alternative Government be upheld. This requires that officials involved in the formulation of high level policy advice have every assurance that their advice will remain confidential. This is especially important in circumstances such as apply in this case where officials' participation in discussions and deliberations was clearly on the understanding that confidentiality would be preserved. [apolitical public service ground]
(e) Breaching the above confidentiality requirement could also place at risk the quality of future advice in terms of its frankness and impartiality. In addition it would encourage future policy development and advising to be conducted mainly via oral communication with very little material for consideration being reduced to writing. This would impede the ability of the officials involved to fully and properly understand and assimilate information relevant to the formulation of advice. The quality of policy deliberation and advice would inevitably suffer. [frankness and understanding ground]
(f) The public interest would not be served by making available to the public material which may be incomplete or which was supplemented or overtaken by subsequent events. The effect of doing so could in fact be to mislead the public as to what information and material were available to the Minister and Government when decisions were taken on particular matters. [incomplete information ground]
(g) The Workplace Relations Reform Steering Committee (WRRSC) process included participation by a wide range of officers at both senior and more junior levels. Unless the confidentiality of the WRRSC and DEWR papers is preserved any future process is highly likely to involve a minimum of material being reduced to writing. This would significantly impact on the efficiency of DEWR's operations as regards the development of high quality policy advice and would also limit the staff development opportunity such a major exercise presents. Over time this narrower process would inevitably detract from the overall efficiency and effectiveness both of staff and of DEWR as a whole. [reduced writing ground]
(h) The workplace relations reform legislation is now in the public domain and disclosure of the working documents may divert important public discussion away from the actual legislation to a discussion of the options initially considered but later discounted. This would lead to speculation about possible future workplace relations reforms which are not Government policy. [discounted options ground]
(i) It is necessary to protect the integrity of the decision-making process by clearly separating the final decision-making step and the reasons for it from the advice and opinions of the senior officers who contributed to the consideration of the relevant issues. [senior officers' opinions ground]
(j) Senior officers responsible for developing and evaluating policy options and recommending an approach to the Prime Minister regarding matters of ongoing sensitivity must have the benefit of written exposition and analysis of relevant considerations in order to properly discharge their responsibilities. The release of their written material may make senior officers reluctant in future to create a written record, which would be highly detrimental to both the policy formulation and decision-making processes of government. [written analysis ground]
(k) Senior officers involved with the preparation of documents containing material of the kind referred to in paragraph (j) above have a reasonable expectation that they would remain confidential and release of the documents would tend to inhibit frank and objective analysis and evaluation of issues and policy options in future, or to inhibit the recording of them. This would be contrary to the public interest in the efficient and effective conduct of PM&C's functions, as these parts contain discussion of options for consideration by Cabinet that were ultimately not pursued. Releasing this information would disclose, or tend to disclose, the nature of Cabinet's deliberations. [Cabinet and inhibition ground]"
"(a) ... [same as ground (j) in the first certificate]
(b) Senior officers involved with the preparation of documents containing material of the kind referred to in paragraph (a) above, have a reasonable expectation that they would remain confidential and release of documents would tend to inhibit frank and objective analysis and evaluation of issues and policy options in future, or to inhibit the recording of them. This would be contrary to the public interest in the efficient and effective conduct of PM&C's functions. [inhibition ground] [in part, the same ground as ground (k) in the first certificate]
(c) ... [same as ground (h) in the first certificate]
(d) Disclosure of documents relating to the workplace relations reforms which indicate the content of confidential Cabinet deliberations and are not therefore closely connected to the Cabinet process, while they may not constitute Cabinet documents under section 34, would be contrary to the public interest because it would breach the confidentiality applying to the deliberations and processes of Cabinet.
(e) ... [same as ground (i) in the first certificate]
(f) the matters referred to relate to recommendations made at the highest level of Government. [high level ground]"
8. Mr Sedgley is the Assistant Secretary of the TSWR Branch in PM&C. In the eighteen years that he has been an officer in the Australian Public Service (APS), Mr Sedgley has been engaged in policy formulation. Among the responsibilities of the TSWR Branch are issues relating to workplace relations reform. Mr Sedgley has held his position since January 2006. Before his appointment to that position, he had been the Senior Adviser in the Branch and had acted in the position on numerous occasions. His work in PM&C has involved Mr Sedgley in the preparation of policy advice across a range of taxation, superannuation and workplace relations matters. Those matters have included changes to personal income tax rates and scales, changes to international tax arrangements, tax measures to encourage philanthropy, business tax reform following the Review of Business Taxation,[7] changes to the superannuation surcharge, rules governing pensions provided by small superannuation funds and the development of laws governing independent contractors.
9. Prior to his working in PM&C, Mr Sedgley had worked in the Department of the Treasury (Treasury). In that Department, he was involved in the preparation of policy advice on a range of tax policy matters. Those matters included the development of transitional rules for the abolition of the wholesales sales tax and the implementation of the Goods and Services Tax (GST), the development of GST provisions applying to financial services and modifications to Australia's income tax law as it applies to non-residents of Australia.
10. Ms Myra Croke is the Assistant Secretary, or head, of the Cabinet Secretariat in PM&C. Between 1992 and 1996 she worked in the Government Division of PM&C. In 1996, Ms Croke headed the Parliamentary Affairs and Legislation Section in the Government Division of PM&C providing secretariat support to the Parliamentary Business Committee of Cabinet. From the end of 1999 until 2000, she was a Senior Adviser in the Cabinet Secretariat and Secretary to the Federal Executive Council. This position was followed by three years, between 2000 and 2003, as Senate Parliamentary Liaison Officer. Ms Croke has held her current position as head of the Cabinet Secretariat since September 2003.
11. Since 2003, Ms Croke has attended in excess of eighty meetings of Cabinet or Cabinet committee meetings. She did so as one of three or four PM&C officers known as Cabinet notetakers responsible for taking handwritten notes of the discussions. Ms Croke did not attend four of the Cabinet meetings relating to documents that she has spoken about in her affidavit but has had access to records of the Cabinet meetings held on 22 February 2005, 7 March 2005, 23 May 2005 and 12 July 2005. She did attend the Cabinet meetings held on 15 March 2005 and 30 March 2005.
12. Mr John Kovacic is the Group Manager of the Workplace Relations Policy Group in the Department of Employment and Workplace Relations (DEWR) and has been since May 2005. He has worked either in DEWR or its predecessors for over 26 years. Since 1999, he has been an officer of the Senior Executive Service (SES). During his career, he has been involved in the provision of policy advice to government on a range of issues. They have included:
"- legislative reform such as the Government's recent workplace relations reforms and legislation giving effect to the Government's response to the Cole Royal Commission into the Building and Construction Industry;
- industrial disputes and possible Government responses;
- initiatives to further advance the Government's workplace relations policies, for example the workplace relations aspects of the Government's higher education reforms; and
- Australia's approach on international issues, particularly as they relate to the International Labour Organisation."[8]
Broad background against which documents created
13. The facts forming the broad background against which the documents were created were not the subject of dispute between the parties. In light of that and on the basis of the evidence to which I will refer, I have made the findings of fact on those matters in the following paragraphs.
14. The TSWR Branch of PM&C is responsible for advising the Prime Minister on taxation, superannuation and workplace relations policy proposals contained in correspondence or Cabinet Submissions by Ministers other than the Prime Minister. Its involvement with the development of the workplace relations reforms began with its participation in the initial inter-departmental committee (IDC) in 2004. PM&C was represented on that IDC as were DEWR, Treasury, the Department of Finance and Administration and the Department of Industry, Tourism and Resources.[9] The purpose of the meeting of the IDC on 14 December 2004 was to set the broad direction for advice later given to the Minister for Employment and Workplace Relations (EWR Minister) regarding possible broad directions that the reforms could take and for submissions subsequently made to Cabinet. The Branch has continued being involved in workplace relations issues and it has given advice regarding amendments to the Workchoices legislation after it had commenced operation.
15. DEWR supported its Minister regarding the issues. In particular, it prepared a broad outline of the proposals to enable him to present them to Cabinet on 22 February 2005. It also prepared a detailed submission regarding the broad strategic direction for consideration by Cabinet in March 2005. On 26 May 2005, the Prime Minister and the EWR Minister announced the broad pillars of the reforms that the Government proposed to make to workplace relations.
16. The Deputy Secretary - Workplace Relations in DEWR established a Workplace Relations Reform Steering Committee (WRRSC) to develop and refine options during June and July 2005. It comprised that Deputy Secretary and Group Managers of DEWR's Workplace Relations Legal, Policy and Services Group Managers as well as representatives from PM&C. In his affidavit, Mr Kovacic described the WRRSC as DEWR's workplace relations reform policy think-tank.[10] It functioned as DEWR's workplace relations reform policy think-tank. It was the main group given the task of developing and evaluating policy options that subsequently formed the basis of advice to the EWR Minister regarding options for decisions that could be taken on the details of the Government's workplace relations legislative reform agenda.
"9. Staff in either the Workplace Relations Policy Group or the Workplace Relations Legal Group prepared Cabinet-in-Confidence options papers on particular issues for discussion and consideration by the WRRSC. This typically involved a number of staff at a range of classification and seniority levels under the direction and supervision of their Senior Executive Service Branch Heads.
18. The Foreword to the Cabinet Handbook current at the time the relevant documents were created states that it:
"... lays down the principles and conventions by which the Cabinet system operates. It also lays down the procedures designed to ensure that the Cabinet process fulfils its central purposes of contributing to consistency in public policy formulation, supporting ministers in meeting their individual and collective responsibilities, facilitating co-ordinated and strategic policy development and enabling informed decision-making on all issues requiring collective determination."[12]
19. Matters are raised "under-the-line" when the Prime Minister permits them to be raised in a meeting of Cabinet without first lodging a formal submission. They are only raised under-the-line when they are:
"(a) urgent matters of a procedural rather than a policy nature;
(b) urgent policy matters which are sufficiently straightforward not to require a formal Cabinet submission and which cannot be resolved in another way (for example, by an exchange of correspondence between ministers); and
20. A Minister's letter to the Prime Minister asking for a matter to be considered under-the-line has to include sufficient information on the subject and its background to be a basis for Cabinet discussion, state that it relates to either (a) or (b) above and the reasons for urgency.[14] The letter must be stamped "Cabinet-in-Confidence". If the Prime Minister agrees to a matter's being raised under-the-line, the Minister's letter is circulated to all Cabinet Ministers.[15]
21. The Drafter's Guide is issued by PM&C and is directed to the preparation of Cabinet Submissions and Memoranda. It describes Cabinet
"... taken to Cabinet by ministers seeking a decision to recommendations on a proposed course of action. The recommendations summarise the action Cabinet is being asked to consider and, assuming the recommendations are accepted, form the basis of the resulting Cabinet minute recording the outcome."[16]
22. Attachment 6 to the Drafter's Guide sets out the procedures that a Minister must follow when wishing to make an audio/visual presentation. The Minister wishing to make it must write to the Prime Minister for approval. In doing so, the Minister must set out the purpose of the presentation and the form it will take together with details of the persons and equipment required to make it.
23. Ms Croke said that PM&C gives the Prime Minister Cabinet briefs in relation to matters that are listed for Cabinet's consideration. They discuss the key issues as well as the comments or recommendations contained in a particular Ministerial submission. The Cabinet briefs are approved by the Secretary of PM&C or, if unavailable, by a Deputy Secretary. Since November 2004, a Cabinet brief is placed on the Cabinet file to which it relates. Copies are distributed electronically to those on a distribution list with the first numbered copy being placed in the Prime Minister's brief and the eighth copy placed on the Cabinet file. The electronically distributed copies may vary slightly in their formatting from the original as well as in their distribution list or in the correction of typographical errors. There are no differences of substance between it and the original. It is the practice of the Prime Minister at the relevant time, the Hon John Howard MP, to take his Cabinet briefs into Cabinet meetings and to refer to them and/or to quote from them during Cabinet meetings.
24. Ms Croke said that the system of noting Cabinet discussions and preparing Cabinet Minutes is the same as that described by the then Acting Director of the Cabinet Office, Ms Anthea Tinney, in 1990. Ms Tinney gave her evidence in an affidavit that was given for the purposes of proceedings in the case of The Commonwealth of Australia v Northern Land Council. [17] The High Court decided an appeal in that matter in 1993 and Toohey J quoted from Ms Tinney's affidavit at length.[18]
"Consistent with longstanding practice and in compliance with the guides for Cabinet notetakers issued from time to time by PM&C, Cabinet notetakers do not take notes verbatim of the discussions in the Cabinet room, but rather take notes for the sole purpose of ensuring there is sufficient record of decisions of the Cabinet on the matters discussed in order to prepare official Cabinet Minutes recording the decisions of the Cabinet. Therefore, Cabinet Notebooks are not a complete record of what was said in the Cabinet room. ..."[19]
[26 - 30] OMITTED FROM THIS COPY OF THE REASONS FOR THE FOLLOWING REASONS:
Section 58(5) of the FOI Act sets out the Tribunal's role when a document is claimed to be exempt under s 36 and a certificate is in force under that section (conclusive certificate). Provided that the Tribunal is satisfied that a document is a document to which s 36(1)(a) applies, its role is limited to determining "... the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.
Section 58 C sets out the way in which the Tribunal must conduct proceedings when a conclusive certificate is in force. It must hold in private the hearing of any part of the proceeding during which evidence or information is given, or a document produced, by, among others, an agency, Minister, officer an agency or member of Ministerial staff. That is the effect of s 58C(2)(a)(i)-(iii). Section 58C(2)(v) goes on to provide that the Tribunal must also hold a private hearing when a submission is made by or on behalf of the agency or Minister when, in the case of a certificate in force under s 36, a submission is made that the disclosure of the document would be contrary to the public interest.
Where the Tribunal holds a hearing in private in accordance with the requirements of s 58C(2), it may give directions as to those persons who may be present at the hearing (s 58C(3)(a)). I made orders of this sort. In broad terms, they permitted Mr McKinnon to be present as well as named officers and legal representatives of PM&C and DEWR, staff of Auscript (the recording and transcription service engaged by the Tribunal) and of the Tribunal where access is required to enable them to perform their duties.
The Tribunal's power to order who may be present at the hearing is discretionary. It is given no discretion as to the publication of the evidence and material given at the hearing. Instead, s 58C(3) provides that the Tribunal shall give directions prohibiting the publication of any evidence or information given to the Tribunal, the contents of any documents lodged with, or received in evidence by, the Tribunal and any submissions made to it at the hearing.
As required by s 58C(3), I made directions limiting publication of evidence, affidavits and submissions regarding the question whether disclosure of the document would be contrary to the public interest. I limited their publication to named persons. They included Mr McKinnon, officers and legal representatives of PM&C and DEWR as well as staff of Auscript and of the Tribunal if access is required to enable them to perform their duties.
Paragraphs [26] - [30] of these reasons summarise evidence given in that part or those parts of the hearing that were held in private in accordance with s 58C(2). Under my direction, access to that evidence is limited to certain named persons but is not available to the public generally.
As this copy of my reasons may be read by anyone who wishes to do so, I have omitted the paragraphs that are subject to the directions I made under s 58C(3).
Consequences of disclosure on subsequent involvement of Departmental officers in providing policy advice
[31 - 52] OMITTED FROM THIS COPY OF THE REASONS FOR THE REASONS GIVEN AT [26 - 30] ABOVE
53. The right of access to documents given by the FOI Act is framed very carefully. It is set out in s 11, which provides:
"(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person's right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency's or Minister's belief as to what are his or her reasons for seeking access."
54. The opening words of s 11 of the FOI Act impose the first qualification to the right. They are that the right is "subject to this Act". Qualifications of a procedural nature and others related to the work imposed on an agency or Minister by the request are found in Part III of the FOI Act. Other qualifications are concerned with the protection of "essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities".[20] These are found in Part IV.
55. In addition to these groups of qualifications, there are qualifications implicit in the words "document of an agency" and "exempt document". The right of access is given to a "document of an agency" i.e. it is given to:
"... a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency."[21]
56. The right of access created by s 11 of the FOI Act does not extend to an "exempt document". That is, it does not extend to:
"(a) a document which, by virtue of a provision of Part IV, is an exempt document;
(b) a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act; or
(c) an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State."[24]
The two exemptions relied on by PM&C are ss 34 and 36.
(a) a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet.
(c) a document that is a copy of, or a part of, or contain an extract from, a document referred to in paragraph (a) or (b); or
(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published."
58. There then follows a qualification in certain cases in which the document requested contains factual information. It is found in s 34(1A) which provides that s 34:
"... does not apply to a document (in this subsection referred to as a relevant document) that is referred to in paragraph (1)(a), or that is referred to in paragraph (1)(b) or (c) and is a copy of, or of part of, or contains an extract from, a document that is referred to in paragraph (1)(a), to the extent that the relevant document contains purely factual material unless:
(a) the disclosure under this Act of that document would involve the disclosure of any deliberation or decision of the Cabinet; and
(b) the fact of that deliberation or decision has not been officially published."
Exemption provision: s 36 - its general scope and exceptions
59. Section 36 is concerned with what are described as "internal working documents". These are described in s 36(1), which sets out the two characteristics that must be possessed by a document before it will be regarded as exempt:
"Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
60. Again there are exceptions to the exemption. The first is that s 34 does not apply to "... matter that is used or to be used for the purpose of the making decisions or recommendations referred to in s 9(1)" i.e. decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency with respect to rights, privileges or benefits, or to obligations, penalties or other detriments to which persons are or may be entitled or subject. The exception is found in s 36(2).
61. A second exception is found in s 36(6) when it provides that:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a prescribed body or organization established within an agency; or
(c) the record of or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function."
62. Section 36(5) sets out the final exemption. It provides that s 36 "... does not apply to a document by reason only of purely factual material contained in the document." This provision requires two issues to be considered. The first is what is meant by the expression "purely factual material" and whether the document contains purely factual material? The second is to focus on whether disclosure of that purely factual material will lead to the consequences described in s 36(1). That follows from the limited exclusion given by s 36(5) to a document that contains purely factual material. I will return to that below.
63. The expression "purely factual material" was considered by Deputy President Todd in Re Waterford and Treasurer of the Commonwealth (No 1).[25] He concluded "... that to be described as 'factual' the material must be 'factual' in fairly unambiguous terms. ..."[26] As for the word "purely", it "... is clearly not used to denote something about the character of what is comprised in 'factual material'. It has the sense of 'simply' or 'merely' ...".[27] Although it may be more a matter of semantics than of substance, I would approach the matter from a slightly different view of the role of the word "purely". In my view, it is intended to emphasise that the material must be "... wholly ...[or] entirely ..."[28] comprised of factual material and cannot incorporate any material that is not factual material. As Deputy President Todd would say: it comprises merely or simply factual material. It does not contain material that can be described as opinion, advice or recommendation or even conjecture.
64. The distinction was drawn by the Full Court of the Federal Court in Harris v Australian Broadcasting Commission:[29]
" Equally, some conclusions may be classed as purely factual material. We hesitate to import notions from the law of evidence into this field. However, it may be useful to refer to the distinction, with which lawyers are familiar, between primary facts and ultimate facts. In our view a statement of ultimate fact may be a statement of purely factual material, notwithstanding it involves a conclusion based on primary facts. Many common statements of fact may, if analysed, be found to be based on primary facts. For example, the statements X has a cold or Y resides in Sydney are both statements based on primary facts, which are unstated. On the other hand, a conclusion which involves opinion, advice or recommendation for the purposes of the deliberative process may well prevent material from being purely factual and render it exempt."[30]
65. The fact that passages are introduced with words such as "I find", "I am of the opinion", "I am inclined to the view" or even "I recommend" does not of itself necessarily render the material that follows something in the nature of an opinion or recommendation rather than factual material. Regard must be had to the context as "... a provision such as s 36 of the Freedom of Information Act is to be applied according to commonsense and the substance of the matter and not as an exercise in semasiology."[31]
66. The fact that a document contains "purely factual material" does not mean that the document is necessarily excluded from the operation of s 36. Regard must be had to the whole of s 36(5). The section does not apply to a document "by reason only" of purely factual material contained in the document.[32] That does not mean that, in every instance, a document that contains purely factual material does not come within the purview of s 36. Whether a document containing purely factual material is, or is not, within the scope of s 36 depends upon whether disclosure of that material would disclose the matters described in s 36(1) and disclosure under the FOI Act would be contrary to the public interest. This interpretation is consistent with the passage from the report prepared by the inter-departmental committee on freedom of information in 1976 when it discussed what became s 36:
"We should say something about documents that ought not to be protected under the exemption considered in this Section:
∙ It should not extend to material of a purely factual character, except to the extent that the selection or presentation of factual material may itself be part of the deliberative process."[33]
67. In Re Swiss Aluminium and Department of Trade,[34] the Tribunal took a slightly different approach to the application of s 36(5) of the FOI Act. Rather than focusing on the words "by reason of" to draw attention back to the effect of disclosure described in s 36(1)(a), it appears to have relied on the word "purely" to do that work:
"... We have examined the remainder of the subject documents with care. Some of the information contained is of a purely factual nature but, in each case, it seems to us that such information is information relating to the activities of competitors of Austrawiss and is information which has been conveyed in confidence to the respondent by the companies to which the information relates. The documents contain other information of a factual nature, but it is not information of a 'purely factual' nature. That material would reveal deliberation that has taken place in the course of the deliberative processes involved in the functions of the respondent. As was said in Re McDonald Pty Ltd and Department of Territories and Local Government (1985) 9 ALD 236 [by Davies J, President, Senior Member Balmford and Dr Craik, Member]: 'The material omitted from this document is of a factual nature but s 36(5), which restricts the ambit of the exemption, uses the expression 'by reason only'. The sub-section does not require factual material to be disclosed if that material has a quality relevant to the FOI Act, such as confidentiality, which would make its disclosure contrary to the public interest.' ..."[35]
68. Despite the reference to Re McDonald, this passage appears to give the word "purely" the work that I consider is done by the expression "by reason of". No reference is made in the passage to the discussion of the Full Court in Harris which seems, to my mind, to analyse what is "purely factual material" by reference to what it is i.e. factual material as opposed to material such as opinion, advice or recommendation rather than by reference to what it might reveal (e.g. a deliberative process).
69. In Re Chapman and Minister for Aboriginal & Torres Strait Islander Affairs,[36] Deputy President McDonald touched on the difficulties that can arise in characterising whether purely factual material would disclose matter of the sort described in s 36(1)(a):
"The line between statements of fact which can stand alone, and are able to be released under the provisions of the FOI Act, and those which are so close to the deliberative process that they form part of it, will often be difficult for the decision-maker to ascertain. It is hard to conceive a set of applicable administrative guidelines to assist in resolving the dilemma presented by the inter-relationship of the two subsections. What can be said however, is that the issue may not be able to be determined by reference only to the content of the document because of the requirement that the decision-maker must look also to the context which forms part of the deliberative or consultative process. Having regard to that, each case will need to be determined according to its own particular circumstances."[37]
Exemption provision: s 36 - McKinnon regarding "contrary to the public interest"
70. If a document comes within the scope of s 36(1)(a) and is not excluded by one or other of the exceptions in ss 36(5) or (6), it will not be exempt unless its disclosure under the FOI Act would be contrary to the public interest.
71. In McKinnon v Secretary, Department of the Treasury (McKinnon),[38] the High Court was concerned with a conclusive certificate issued in relation to a claim that disclosure of certain documents would be contrary to the public interest within the meaning of s 36(1)(b). Those documents can be broadly described as reports, reviews or evaluations completed in the year between December 2001 and December 2002 and detailing the extent of bracket creep and its impact on revenue collection of income tax and information in relation to higher taxation burdens faced by Australians. Although focused in the main on the conclusive certificate and the Tribunal's task, some mention was made of the general notions of public interest. Those in the minority on the final result, Gleeson CJ and Kirby J, examined the object of the FOI Act, the structure of s 36 and its place in the legislation. They continued:
" A conclusion that disclosure of an internal working document would be contrary to the public interest may or may not turn upon contestable facts: either primary facts, or inferences to be drawn from those facts. It may or may not turn upon contestable matters of opinion. Inevitably, it will involve a judgment as to where public interest lies. Such judgment, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object described above, which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests (s 3(1)(b))."[39]
72. Hayne J, who was one of the majority, made the following observations on the meaning of "public interest":
" It may readily be accepted that most questions about what is in 'the public interest' will require a consideration of a number of competing arguments about, or features or 'facets' of, the public interest. As was pointed out in O'Sullivan v Farrer ...[[40]]:
'[T]he expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects of the legislature could have had in view" ...[[41]].
That is why a question about 'the public interest' will seldom be properly seen as having only one dimension."[42]
73. The other two judges forming the majority, Callinan and Heydon JJ,
" Nor are we by any means certain that it is apt to describe the public interest as multifaceted. Neither the fact that different people will see it through different prisms, nor the fact that an all-encompassing definition of it for all occasions is not possible, means that the public interest is multifaceted. ... Judges have usually not found it necessary to direct juries at length as to the meaning of the expression, except to warn them that it is not enough that the matter might be of some personal or prurient interest, or merely something about which they may be curious."[43]
74. In discussing the role of the Tribunal under s 58(5) of the FOI Act, Gleeson CJ and Kirby J appear to speak more broadly of public interest:
"... If it were enough for the minister to point to one facet of the public interest that is served by non-disclosure, then it would be enough to say that non-disclosure preserves confidentiality. Of course it does. By definition, a facet is one side of something that has many sides. Looking only at a facet of an object is a necessarily incomplete way of looking at the object. Looking only at a facet of the public interest is a necessarily incomplete way of looking at the public interest."[44]
75. Their Honours considered each of the grounds set out in the Minister's conclusive certificate. They did so in the context of the evidence presented in the case and in the context of whether the Minister's reasons given in his conclusive certificate for not disclosing documents were reasonable. Arguably, their Honours' comments may be relevant in the broader context of an exploration of the scope of public interest generally and of the occasions on which disclosure or non-disclosure of a document may be considered as being contrary to the public interest in a consideration under s 36(1)(b). It must be emphasised, however, that their Honours did not consider the scope of s 36(1)(b) and so did not consider whether it requires a balancing of facets of the public interest, if there be any, or whether it is to be determined by reference to another test.
76. Before looking at the categories of public interest discussed by Callinan and Heydon JJ, I will consider for a moment what is meant by "balancing". It was explained by Gleeson CJ and Kirby J:
"... This is a concept that assumes prominence in a different context, in which courts are required to deal with claims of public interest immunity advanced in opposition to the production of documents, or example under subpoena, in civil or criminal litigation. There, it is the public interest in the administration of justice, and considerations of fairness to litigants, that may need to be weighed against aspects of the public interest put at risk by disclosure of the documents .... The image of the scales of justice is pervasive in legal thinking, and it is natural to talk of taking account of competing considerations in those terms. Under the FOI Act, however, the matter of disclosure or non-disclosure is not approached on the basis that there are empty scales in equilibrium, waiting for arguments to be put on one side or the other. There is a 'general right of access to information ... limited only by exceptions and exemptions necessary for the protection of essential public interests [and other matters not presently material]' (s 3(1)(b)). That is the context in which a minister makes a decision under s 36(3), and in which such a decision is reviewed under s 58(5). References to 'balancing' create a danger of losing sight of that context. ..."[45]
77. Callinan and Heydon JJ considered the following categories, or perhaps facets, of public interest. They said:
" ... The reference to 'ongoing sensitivity' in the first place is not entirely clear. We would be inclined ourselves to think that the documents have continuing sensitivity, are controversial and affect a minister's portfolio would not alone provide a reasonable ground for continuing confidentiality. The use of the word 'ongoing' strongly suggests currency, and the use of the word 'ongoing' strongly suggests currency, and the use of the word 'controversial' might well at least imply public interest.
The second ground, which speaks of jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed, and it seems to us that this a matter upon which a minister's opinion and experience are likely to be well informed and valuable as those of anyone else, including senior officials.
The third ground raises an issue of tentativeness, that is to say, that the documents were concerned with matters that were not settled and recommendations that were not adopted. This too, on its face, is a cogent ground. It is difficult to see how it would not be reasonable for a minister to take the view that the release of the material of that kind would not make a valuable contribution to public debate.
The fourth ground has so much in common with the third that nothing further need be said about it.[[46]]
The fifth ground is far less persuasive. It claims that the difficulty of putting financial data into context provides reason for the non-disclosure of otherwise relevant documents. It is, we think, unrealistic for any minister to believe that he or she can control, or dictate the context in which matters of public interest are debated. All that a minister can do is seek to explain the data and to provide as accurate a context for it as possible.
The sixth ground takes the point that such documents as are prepared for possible responses to questions in Parliament should remain confidential because their exposure would threaten the Westminster system of government, that is to say, responsible government to which we have earlier referred. This cannot be said to be an unreasonable view. The minister is the one who is responsible for an answer given in Parliament, within the practical modern limits to which we have referred. It is his or her answer itself which is a, or the, matter of public interest, and not the various documents which may have canvassed that answer, or other possible answers. It will be in respect of the answer that the minister actually gives that any political price will have to be paid, just as there may well be a political price to be paid for any claim of conclusiveness, whether it is well-based or not.
The seventh ground is at least arguably not reasonable, in effect, that the public may not be trusted to understand the technicalities of, and the jargon used in otherwise revealable documents. It is not as if the public is unaided by experts and others who can, including, for example, an informed journalist ....
The grounds taken did not clearly articulate something that the oral evidence suggested, namely that the respondent was concerned that what might be disclosed could well be misrepresented, abbreviated or distorted, or at least not presented in a balanced way. Indeed, cross-examination of the appellant's witnesses certainly did go some way towards demonstrating lack of balance, indeed, lack of balance even in the reporting of the particular issue with which the Tribunal was concerned. That would not however be a ground that we would regard as reasonable, for the same reasons we would not reject a ground based upon an asserted lack of technical expertise, or inability to understand jargon on the part of each and every member of the public."[47]
78. The discussion by Callinan and Heydon JJ of the seventh ground needs to be read with their observations regarding their third ground. It would seem to be consistent with other observations they made earlier in their judgment regarding the opinion evidence given by Mr Rose, to whom I will refer shortly, [48] and Professor Peter Dixon, who is an applied economist. Mr Rose had expressed an opinion that disclosure of documents that were provisional in nature or that were superseded would make a very useful contribution to the public debate. Callinan and Heydon JJ said:
"... Contrary to Mr Rose's opinion that the exposure of these would make 'a very useful contribution to the public debate', in our opinion documents of that kind are more likely to mislead or confuse, or to make no contribution to any useful, or currently relevant debate.
Some of Professor Dixon's evidence made the point, incontestable we think, that the topics were of public interest, as to the way in which, for example, 'bracket creep' adversely affected many taxpayers. But a distinction that he too did not make in his evidence was the distinction between provisional or superseded documents, and current ones. The former could do little to advance the analyses which Professor Dixon and other economists would wish to do, of 'the Treasury's apparent concern with the number of people who move from one tax bracket to another in any given year'."[49]
79. Hayne J also appears to support the proposition that there could, on the evidence in that case, be a public interest in refusing disclosure of documents in circumstances where they would be likely to mislead. He said:
"... In the case of those particular documents, the relevant grounds for the claim were grounds asserting that release of the material shown in the documents had 'the potential to lead to confusion and to mislead the public'. The appellant did not assert that this could not constitute a reasonable ground for the claim that had been made."[50]
Exemption provision: s 36 - McKinnon regarding a conclusive certificate
80. In this case, conclusive certificates have been issued so that each document is subject to one or other of them. A conclusive certificate is provided for in s 36(3):
"Where a minister is satisfied, in relation to a document to which paragraph (1)(a) applies, that the disclosure of the document would be contrary to the public interest, he or she may sign a certificate to that effect (specifying the ground of public interest in relation to which the certificate is given) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the disclosure of that document would be contrary to the public interest."
81. Such a certificate cannot establish conclusively that a whole document is exempt if the Minister is satisfied that only part of the document is exempt. Section 36(4) provides:
"Where a Minister is satisfied as mentioned in subsection (3) by reason only of matter contained in a particular part or particular parts of a document, a certificate under that subsection in respect of the document shall identify that part or those parts of the document as containing the matter by reason of which the certificate is given."
82. The first thing to notice about ss 36(3) and (4) is that they apply only to the second of the two characteristics that a document must possess before it is exempt under s 36. This means that, even if there is a conclusive certificate, it is essential to look first to whether the document comes within s 36(1)(a). If it does not, the document cannot be exempt regardless of the existence of the conclusive certificate which relates only to the second characteristic set out in s 36(1)(b).
83. Section 58(3) is concerned with the role of the Tribunal once a conclusive certificate has been issued:
"Where there is in force in respect of a document a certificate under section ... 36,, the powers of the Tribunal do not extend to reviewing the decision to give the certificate, but the Tribunal, constituted in accordance with section 58B, may determine such question in relation to that certificate as is provided for in ... subsection... (5) ... in relation to that certificate."
"Where application is or has been made to the Tribunal for the review of a decision refusing to grant access to a document in accordance with a request, being a document that is claimed to be an exempt document under section 36 and in respect of which a certificate is in force under that section, the Tribunal shall, in a case where it is satisfied that the document is a document to which paragraph 36(1)(a) applies, if the applicant so requests, determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest."
85. While Gleeson CJ and Kirby J dissented from the majority in McKinnon regarding whether the Tribunal had been entitled to hold that reasonable grounds existed for the claims in the Minister's certificates, all agreed that s 58(5) does not leave any room for the Tribunal to engage in full merits review in the face of a conclusive certificate.
86. The remaining aspects of their Honours' judgments need to be read in light of the judgments of the majority in the Full Court of the Federal Court below. The ground on which the majority decided the point in the Federal Court appears from the judgment of Gleeson CJ and Kirby J. They began with the judgment of
Tamberlin J before moving to that of the other member of the majority; Jacobson J. Tamberlin J:
"[O]ne example of a facet of the public interest that is relevant is the desirability of preserving confidentiality of intra-governmental communications prior to making a decision. Another, and obviously competing, facet of the public interest is the desirability of transparency in public administration. If there is a ground that is not irrational, absurd or ridiculous for a claim that the first-mentioned facet of the public interest would not be served by disclosure, then that alone is sufficient to satisfy the requirements of s 58(5). It is not necessary in order to decide that limited question that the decision-maker should consider and weigh all the other facets, and the grounds which may reasonably support each of those facets, in order for s 58(5) to be satisfied."
The other member of the majority in the Full Court, Jacobson J, did
not put the point quite so directly, but he also considered and rejected
an argument that... 'the question of whether something is contrary to the
public interest involves a consideration of factors on the other side of the ledger.'" [51]
87. The task that the Tribunal must undertake, as opposed that which it must not, was described a little differently in each of the three judgments given by the High Court. I will first attempt to set out the broad approach adopted by each beginning with the judgments of the majority:
Of course that is a matter for judgment, not calculation or observation. ..."[52]
Thus, in relation to internal working documents of the kind described in s 36(1)(a), it is for the minister to decide the question of public interest raised by s 36(1)(b) and (3), and it is the minister's state of satisfaction on that issue that determines whether the document is exempt from disclosure. There is no provision for full merits review of that decision by the tribunal. The tribunal's review function, in such a case, is limited to determining whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest."[59]
88. What is the material to which the Tribunal may have regard in undertaking its task? Callinan and Heydon JJ found much of the evidence of one witness to be "argumentative rather than factually probative".[63] They were critical of another witness, Mr Stutchbury, who:
"... as experienced as he was, both in his affidavit which tended to rehearse the appellant's arguments rather than state relevant facts, and in cross-examination, failed to make the important distinction between a topic of public interest and documents on or in relation to the topic. It could hardly be denied that the topics with which the documents in issue are concerned were matters of public interest. That does not mean that every document generated by, or everywhere in the deep recesses of, the Executive, concerning these topics is valuable, useful, or necessarily one in respect of which there existed no reasonable grounds or bases for non-disclosure in the public interest: or, although this is not the statutory test, to put the matter another way, that the public interest necessarily, or even on balance, required that they be disclosed.
... Mr Stutchbury's evidence did not take due account of the distinction between the topics, undoubtedly ones of public interest, and the direct relevance, currency, and varying significance and importance of the documents that might have been brought into existence about them."[64]
89. In effect, the point made by Callinan and Heydon JJ in this passage regarding Mr Stutchbury's evidence was repeated in their judgment regarding the evidence of Mr Harris. In their view, Mr Harris's evidence could not be questioned in so far as it dealt with bracket creep. It is implicit in their judgment that they saw Mr Harris's evidence as focused on the subject generally and not directed to the documents that were the subject of the conclusive certificate. Callinan and Heydon JJ also observed that it is not "... relevant to the controversy to point out that perhaps some of the documents could lawfully be revealed by the Auditor-General. Rather the contrary is the case. That they arguably could, merely demonstrates that the machinery of government is subject to another valuable check or balance ...".[65]
90. Hayne J focused on the need for evidence and relevant opinion rather than material that is in the nature of argument or comment.[66] As to what opinion can relate to may need to be considered in light of the observations made by Callinan and Heydon JJ regarding the opinions expressed by Mr Alan Rose. Mr Rose is a former Secretary of the Attorney-General's Department and President of the Australian Law Reform Commission. Their Honours said:
" Deference should be accorded to Mr Rose's informed opinion. However, the opinion just quoted is a very far-reaching opinion relating to the state of mind of others. One must question his, indeed anyone's, ability to express an opinion of that kind. We would, for ourselves, have given it little weight, as we would his rejection of other grounds relied upon by the respondent based upon his own personal experience. ..."[67]
91. Lest it be thought that they found any room for expert opinion evidence regarding the public interest, Callinan and Heydon JJ said:
"... In this area, in any event, the opinions of witnesses on either side purporting to reveal and express the states of mind and attitude of others on other occasions will rarely be very helpful and practically never determinative. The role of the tribunal will usually be best performed simply by examining the documents with a view to assessing whether the stated grounds of conclusiveness satisfy the statutory test. That is because, as here, it will usually be possible readily to characterise the topics in question as topics of public interest without the need for any, or any extensive expert evidence to that effect. The real issue will almost invariably then be whether the document in question, having regard to its date, its author, the position of its author, and its contents, is one in respect of which the minister can hold the requisite opinion. The Act provides no mandate for any balancing exercise. To have regard to extraneous matters such as other competing reasons, if the requisite statutory reason for non-disclosure has been demonstrated, gives rise to a risk that a de facto balancing act will take place."[68]
92. It is clear from the passages I have set out that, from the point of view of Callinan and Heydon JJ, the Tribunal need only determine that there exists one reasonable ground for the claim that the disclosure of the document would be contrary to the public interest. That accords with their view that s 58(5) does not permit the Tribunal to engage in a balancing exercise but does it mean that Callinan and Heydon JJ would adopt the view of s 58(5) adopted by Tamberlin and Jacobson JJ in the Federal Court and summarised by Gleeson CJ and Kirby J? I think not.
93. Callinan and Heydon JJ do not frame their reasons in terms of relevance. Instead, they place a great deal of emphasis upon stating that the issue must be decided in the terms used by Parliament in s 58(5). Those terms require the Tribunal to consider whether there exist reasonable grounds for the claim and it is enough that there is one reasonable ground. A requirement that there be a reasonable ground is quite different from saying that anything relevant in support of the ground is enough. I note that Callinan and Heydon JJ did not have quite the same understanding of the position taken by Tamberlin and Jacobson JJ. Their
understanding was again underpinned by a notion of reasonableness. It was that:
"... the majority in the Full Court effectively held, that if one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will go beyond review. ..."[69]
94. Callinan and Heydon JJ do not analyse what is meant by a reasonable ground. It is clear from their discussion of absurd and non-absurd reasons, though, that they expect there to be some analysis of the documents and matters relevant to the documents in order for the Tribunal to determine whether the "... minister can hold the requisite opinion."[70] That analysis would seem to go beyond an analysis directed simply to whether anything relevant is to be said in support of the view that disclosure would be contrary to the public interest. That it does so would seem to be supported by the conclusion reached by Callinan and Heydon JJ that the "... test actually posed by the tribunal, however, was certainly, on no view, less advantageous to the appellant than the statutory language prescribes. ..."[71] Their understanding of the Tribunal's decision was that "... it sufficed for the treasurer to show that the claim, meaning thereby, we think, the grounds for the claim, was not an irrational one..."[72] A conclusion that the grounds for a claim are not irrational can only be reached after an analysis of all relevant circumstances. It differs from a conclusion that there is something relevant to support the view for such a conclusion does not require any consideration to be given to whether there is other relevant material.
95. The judgment of Hayne J is framed in different terms. He clearly agrees, as do all of their Honours, that the Tribunal is not engaged in a merits review process in which it substitutes its own view of where the public interest lies. He then advances several propositions in three of the passages from his judgment to which I have referred.[73] In the first, he states that the public interest will seldom be properly seen as having only one dimension and that the Tribunal is not limited to examining them separately. In the second, he acknowledges that there are competing considerations that are relevant to the question that the Tribunal must ask itself under s 58(5).
96. In the third passage, Hayne describes the Tribunal's task as being to decide whether the conclusion that disclosure of particular documents would be contrary to the public interest can be supported by logical arguments which, taken together, are reasonably open to be adopted and which, if adopted, would support the conclusion expressed in the certificate. Those passages could be taken to indicate a balancing exercise, which would be contrary to the view of Callinan and Heydon JJ.
97. Arguably, there is another passage in the judgment of Hayne J could also possibly be read as indicating that the Tribunal should engage in a balancing exercise of some sort:
" It follows that the appellant was right to say that the characterization of any one reason favouring non-disclosure of documents as 'non-absurd' does not of itself require an affirmative answer to the statutory question posed in s 58(5). That is, it would be an error to treat the statutory question as requiring an affirmative answer wherever there is any 'non-absurd' reason favouring non-disclosure of the documents in question."[74]
98. This passage appears immediately after his Honour's discussion of the passage from the judgment of the Full Court of the Federal Court in Attorney-General's Department v Cockcroft[75] in which it had said that the words "could reasonably be expected to prejudice the future supply of information" required a:
"... judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous".[76]
Hayne J said that the Full Court was to be understood as "... doing no more than drawing an emphatic comparison."[77] There then followed their statement to the effect that any one non-absurd reason does not itself require a conclusion that there exist reasonable grounds for the claim in the conclusive certificate. Perhaps that statement should be read in the more general context of his earlier statement to the effect that the Tribunal's task is to look at whether the ground can be supported by logical arguments, which taken together, are reasonably open to be adopted and which, if adopted, support the conclusion expressed in the certificate. Perhaps it should be read in that light rather than in light of a suggestion that the Tribunal should engage in a balancing exercise.
99. A further passage from Hayne J's judgment, though, more clearly lends support to his adopting an interpretation that does not engage the Tribunal in a balancing exercise. It appears after Hayne J had rejected the submission that the Tribunal had followed the approach proffered by Tamberlin J in the Full Court of the Federal Court. I have already set out the whole of this passage but will repeat the particular passage, to which Hayne J referred:
"... If there is a ground that is not irrational, absurd or ridiculous for a claim that the first-mentioned facet of the public interest would not be served by disclosure, then that alone is sufficient to satisfy the requirements of s 58(5). It is not necessary in order to decide that limited question that the decision-maker should consider and weigh all the other facets, and the grounds which may reasonably support each of those facets, in order for s 58(5) to be satisfied."[78]
100. Hayne J decided that it was implicit in the reasons for decision of Downes J, President of the Tribunal, that he had not followed the approach proposed by Tamberlin J. He decided that Downes J:
"... did not confine attention to individual grounds that might tend in favour of the claim that had been made and ask whether any one of those grounds was not irrational. Rather, he considered the particular documents that were in issue, and all of the grounds that were said to support the claim that had been made."[79]
101. In rejecting the approach adopted by Tamberlin J and having regard to the other passages to which I have referred, Hayne J would seem to be taking an approach consistent with that adopted by the minority; Gleeson CJ and Kirby J. Their approach requires a consideration of the evidence in order to determine what can have a rational bearing on the issue. A conclusion that a reason is "non-absurd" might well be regarded as not having a rational bearing on the issue to be decided under s 58(5) if it is not, on the whole of the evidence, not supported. That this is the proper interpretation of Hayne J's judgment is supported by the first passage from his judgment that I have set out above.[80] It directs the Tribunal to decide any relevant questions of fact that are tendered for decision in the matter before it.
102. It seems to me that the judgment of Gleeson CJ and Kirby J gives guidance as to how the exercise is to be undertaken. That guidance is not spelt out in the judgment of Hayne J but, arguably having regard to the passages to which I have referred, his Honour is adopting the same approach. It is also arguable for the reasons that I have given above that Callinan and Heydon JJ would adopt an approach that is essentially the same. Unlike Gleeson CJ and Kirby J in particular, they did not specifically address the details of the way in which the Tribunal should approach its task. They did, however, refer to the need for evidence to be factually probative rather than argumentative. Their conclusion regarding to the way in which the Tribunal had dealt with the evidence also reveals that they consider that it must engage in an exercise such as that described in some detail by Gleeson CJ and Kirby J. They said: "To the extent that... the evidence was truly probative about relevant current matters, or otherwise warranted consideration, the tribunal dealt with it adequately."[81]
103. It might be said that the basis upon which the Tribunal finds that the evidence is probative or not is not clear. I am not so sure that this is so. The test is whether there are reasonable grounds for a claim made in a conclusive certificate and not whether I am satisfied that I would come to the same conclusion and rely on the same grounds in a conclusive certificate or at all. A question whether there are reasonable grounds of this sort is dealt with in terms of rationality of the evidence against a background of all relevant matters. It is not dealt with in terms of the Tribunal's satisfying itself according to any standard of proof for its satisfaction, and so agreement or otherwise with the Minister's decision in signing a conclusive certificate, is not relevant. This is apparent from the example given by Gleeson CJ and Kirby J. I have set out their introduction to it in the extract at [89] above and it continues:
"... Suppose the question is whether there are reasonable grounds for suspecting that A killed B. Suppose that A is a person of violent propensity, who had a motive to kill B, and had declared an intention to do so. Let it be assumed that those three facts are incontestable. In the absence of any other facts they may lead to a conclusion that there are reasonable grounds for suspecting that A killed B. Suppose, however, that A has an undisputed alibi. The first three facts then cease to constitute reasonable grounds for the suspicion. The question cannot be answered without considering all four facts. It is not a hypothetical question. It is a question to be answered in the light of all the known circumstances. This applies to all relevant considerations whether they be matters of objective fact (as in the example given), or of opinion, or of argument. Until all relevant considerations, that is, all (known) considerations that could have a rational bearing upon the claim, or state of mind, or decision under review, are taken into account, it is impossible to form a just and fair judgment whether, objectively considered, there are reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest. It is not enough for the tribunal to ask whether there are facts, or opinions, or arguments that rationally bear upon that topic. All relevant matters must be taken into account; not for the purpose of deciding whether the tribunal agrees with the minister, but for the more limited purpose of deciding whether there are reasonable grounds for the claim which the minister accepted."[82]
104. In summary, I have come to the view that the positions adopted in each of the three judgments are essentially the same. Their apparent differences stem more from their choosing to emphasise different aspects of the task rather than from fundamental differences. The reason for the majority and the minority reaching different outcomes on the appeal arises, particularly in the case of Gleeson CJ and Callinan and Heydon JJ, from their view of what the Tribunal had done and its practical outcome. Hayne J considered that the Tribunal had not misdirected itself about the task required by s 58(5) by adopting a test of the kind proposed by Tamberlin J. Callinan and Heydon JJ had preferred to ask the relevant question in terms of s 58(5) rather than in terms adopted by the Tribunal i.e. "... whether the facts established before the tribunal were sufficient to support the claim that disclosure would be contrary to the public interest in the mind of a person guided by reason."[83] They finally decided the issue on the basis of whether the test actually posed by the Tribunal was, or was not, less advantageous than the test that the statutory language of s 58(5) allows. Whether the Tribunal's test was or was not more advantageous was not a matter to which Gleeson CJ and Kirby J turned their minds. Instead, and despite their wondering whether certain passages of the Tribunal's decision suggested that it had adopted what they considered to be the correct approach, they accepted the view of the majority of the Full Court that the Tribunal had followed its preferred view. As they considered that view to be incorrect, they decided that Mr McKinnon "... was entitled to have the matter considered according to law ..."[84] and were not prepared to accept that the Tribunal's decision should be permitted to stand when it was reached on the basis of a test that was not appropriate under s 58(5).
105. The outcome of the reasoning in each of the judgments in McKinnon seems to me to lead to the same practical outcome. They require me first to have regard to the words of s 58(5) and to ask whether "... there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest"? That question is not to be determined after engaging in a full merits review and is not to be decided by reference to whether I would be satisfied that disclosure of the relevant documents would be contrary to the public interest. It is not to be decided after balancing competing public interests if there be more than one. Instead, it is to be decided by reference to all relevant circumstances beginning with those such as authorship, contents and contemporariness that relate directly to the document and extending to the world into which it would be disclosed, if disclosed at all. Evidence, including opinion evidence, may be taken to assist me to undertake the exercise but care must be taken in assessing its relevance to the issue to be decided. Care must be taken to differentiate evidence that is factually probative from submission or argument and to weigh the value of evidence purporting to relate to the state of mind of others. The evidence must, when taken as a whole, bear rationally on the issue of whether "... there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest". It may be that a part of that evidence, when taken alone would support there being such a reasonable ground but that, when viewed against all of the evidence that is probative, would not be taken as doing so. If there is one reasonable ground, that will lead to the conclusion that, within the meaning of s 58(5), there exist reasonable grounds for the claim that disclosure of the document would be contrary to the public interest.
Exemption provision: s 36 - previous authorities regarding a conclusive certificate
106. Previous authorities may give some guidance in undertaking this task but it would appear from McKinnon that they are not determinative. Hayne J decided that Downes J, who had constituted the Tribunal, had not, as Mr McKinnon had submitted, treated past decisions as determinative. His Honour pointed to the passage in which Downes J had said that "it is ultimately for me to be satisfied with respect to each document before me."[85] His finding that Downes J had considered both the particular documents that were in issue and the grounds said to support the claim also points to his accepting the need to look to the documents and the evidence and not to precedent in any determinative sense.[86]
107. Callinan and Heydon JJ did not expressly consider the point. Despite that, it seems implicit in their approach, as it does with that of Gleeson CJ and Kirby J, that each case must be decided on the basis of the documents to which the conclusive certificate relates and the probative evidence be it of a factual nature or relating to opinion. In that environment, there would seem to be no room to give previous authorities a determinative status.
108. Previous authorities remain a guide and one is the much earlier decision of Davies J as President of the Tribunal in Re Howard and Treasurer of Commonwealth of Australia.[87] His reasons for finding that there existed reasonable grounds for a claim that disclosure of certain documents would be contrary to the public interest were summarised in the head note. Mr Howard had requested documents provided to the then Government by an Australian Council of Trade Unions' (ACTU) Task Force during the formulation of the 1984/85 Budget. When in opposition, the Government had forged an Accord with the ACTU regarding economic policy. In particular, the Government had agreed to consult with the ACTU regarding income and prices policies including taxation. Access was refused to a minute to the Treasurer and a telex to the ACTU. Both documents advised the Treasurer on the implications and estimated cost of certain taxation options. Davies J referred to previous authorities from which he gleaned that the whole of the circumstances needed to be examined. Those circumstances included any public benefit perceived in their disclosure.[88] As general propositions, he drew the following conclusions:
"(a) the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communications should not be disclosed;
(b) disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest;
(c) disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest;
(d) disclosure which will lead to confusion and unnecessary debate resulting from the disclosure of possibilities considered, tends not to be in the public interest; and
(e) disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process."[89]
109. Davies J commented specifically on the candour argument. He noted that:
"... the Tribunal has not yet received evidence that disclosure under the FOI Act has in fact led to a diminishment in appropriate candour and frankness between officers. As time goes by, experience will be gained from the operation of the Act. The extent to which disclosure of internal working documents is in the public interest will more clearly emerge. Presently, there must be an element of conjecture in a decision as to the public interest. Weight must be given to the object of the FOI Act."[90]
110. Mr Howard had framed his submissions around three points. First, the Accord was a political document. Second, the ACTU had not produced any evidence as to whether maintaining the confidentiality of their discussions was important to them. Third, there is a clear public interest in not only the reality, but the appearance, of equal treatment of claimant groups and their representatives in the Australian community. The Government of the day had appeared, Mr Howard submitted, to have treated the ACTU in a special manner.
111. Davies J dealt with these submissions and analysed the evidence in a way consistent with the approach that appears to underpin the judgments of the High Court in McKinnon:
" _In the present case, I think there were and are reasonable grounds for concluding that disclosure of the documents would be contrary to the public interest. In the preparation of the Budget, the Treasurer and officers of his Department would have given consideration to a wide range of options. Some options would have been noted and not further considered, others may have been given scant attention. Some options may have been given serious consideration but not adopted for one reason or another. In the course of the development of the Budget, new options may have come to light. In the end, the Budget would have been formulated. The authorities to which I have referred recognize a public interest in protecting from disclosure such a process of deliberation. Protection of the deliberative process encourages 'creative debate and candid consideration of alternatives', to use the words of Wilkey J (_Jordan v Department of Justice, supra, [591F (2d) 753 (1978)] at 772). It prevents premature disclosure of possible options and confusion arising between options considered and options adopted. And lastly it protects the integrity of the decision-making process by enabling the government to be judged by what it has decided to do rather than by material it has taken into account. These elements of the public interest are as significant in this country as they are in the United States or in the United Kingdom."[91]
112. Mr Hanks QC with Ms McKenzie referred to other authorities that give particular examples of grounds that have been found to constitute reasonable grounds for the claim made in a conclusive certificate.[92] I will not set them out for they do not elaborate upon the approach that I must adopt in this case.
113. Section 42 of the FOI Act is subject to a qualification. The exemption for which it provides does not extend to documents that are provided to or used by an agency or its officers for the purpose of making certain decisions or recommendations. The certain decisions or recommendations are those made under or for the purposes of an enactment or a scheme administered by the agency with respect to rights, privileges or benefits or to obligations, penalties or other detriments to which persons are or may be entitled. This is the effect of s 42(2) and, subject to
"(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege."
114. The effect of s 61(1) of the FOI Act is that the onus of establishing that a decision given in respect of a request was justified or that the Tribunal should give a decision adverse to Mr McKinnon is upon PM&C. It follows that PM&C has the onus of establishing that there are reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest as claimed in the conclusive certificates.
[115] OMITTED FROM THIS COPY OF THE REASONS FOR THE REASONS GIVEN AT [26 - 30] ABOVE
In the following paragraphs, I have set out passages from a variety of material relating to the standards of record-keeping that must be met by PM&C and DEWR and its officers. That material is publicly available. Both parties were aware that I intended to refer to it.
116. I will begin with s 10(1) of the Public Service Act 1999 (Public Service Act), which sets out the APS Values. Among them are the following four:
"(a) the APS is apolitical, performing its functions in an impartial and professional manner;
"(e) the APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public;
"(f) the APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government's policies and programs;
117. The Australian Public Service Commissioner (APS Commissioner) must issue written directions in relation to each APS Value for the purpose of ensuring that the APS incorporates and upholds them as well as for the purpose of determining their scope or application where that is necessary to do so.[93] The APS Values have effect subject to any restrictions in those Directions.[94] Agency heads are required to uphold and promote APS Values and must have systems in place to ensure that APS employees understand and apply them and that demonstrate to government, Parliament and the Australian community that they do so.[95]
118. Section 13 of the Public Service Act sets out how an APS employee must behave. As well as being required to behave with qualities such as honesty and integrity, courtesy and care and diligence, s 13 requires an APS employee to comply with all applicable Australian laws. That is the effect of s 13(4). An "Australian law" includes any Act or any instrument made under it. Section 13 (11) provides that "An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS."
119. The APS Commissioner has issued Directions in relation to each APS Value. Direction 2.2 sets out a number of matters but has a focus on one of the primary roles of the APS which is to advise on and give effect to policies of the government of the day. Indicators are set to measure compliance with the direction:
"The agency establishes systems and structures that enable it to provide the government with a clear and sufficient analysis of all relevant issues and options.
The agency has systems to monitor the effectiveness and quality of its advice to the government.
The agency can demonstrate that its advice is objective, impartial and timely.
The agency has clear, accessible systems in place to facilitate the fair and timely resolution of concerns, including those relating to political influence."[96]
120. Direction 2.6 relates to the APS Value set out in s 10(1)(e) requiring
the APS to be openly accountable. Among its requirements is a requirement that:
"... an APS employee must, taking into account the employee's duties and responsibilities in the Agency, take all reasonable steps to ensure that he or she:
(a) ...
(b) ...
(c) is able, within the accountability framework, to demonstrate clearly and appropriately to Ministers, to the Parliament and to other stakeholders that he or she has efficiently, effectively and ethically used the resources allocated to him or her."[97]
121. Two of the Indicators that are used to demonstrate that the APS Value is being met are:
"...The agency's reporting arrangements provide a clear account of the agency's performance and the effective, efficient and ethical use of resources for the achievement of outputs and outcomes in the reporting period.
The agency is able to demonstrate that due process has been followed in its actions and decisions, including the existence and maintenance of good recordkeeping systems."[98]
122. The APS Value set out in s 10(1)(f) of the Public Service Act is concerned with the responsiveness of the APS to provide frank, honest, comprehensive, accurate and timely advice and in implementing the government's policies and programmes. It is a Value that complements the Value set out in s 10(1)(a) to be an apolitical service. It is intended to "... ensure that governments have a comprehensive view of issues and access to a full range of options on which to make decisions."[99] Indicators that it is being met are:
"Agency advice to government is balanced, comprehensive, impartial, timely, adequately documented and provides government with a clear and sufficient analysis of all relevant issues and options.
The agency has a culture that supports the provision of frank and fearless advice.
The agency has systems which enable it periodically to assess and review the effectiveness of its advice to government, taking appropriate account of the views of stakeholders.
The agency has reporting arrangements that enable it to demonstrate that it is responsive to the government through its effectiveness in implementing government policies and programs."[100]
123. The APS Commissioner has prepared a Practice Guide entitled "Supporting Ministers, Upholding the Values"[101] (Practice Guide). The APS Commissioner wrote in her foreword:
"A good relationship between Australian Public Service agencies, Ministers, and their offices is central to effective Government. It forms a foundation of trust that underpins the ability of agencies to be responsible to the elected Government and the confidence the Government has in the services it receives from agencies.
The Australian Public Service Commissioner's statutory responsibility in relation to promoting the APS Values includes helping APS employees to build effective working relationships between the political and administrative arms of Government. The APS Values include the requirement to provide frank, honest, comprehensive, accurate and timely advice and to implement the Government's policies and programmes. They also include obligations to be apolitical and accountable. While most of the time they complement each other, at times the APS Values need to be balanced so that no single Value is pressed to the point that it conflicts directly with another.
The guide draws on analysis undertaken as part of an evaluation conducted by the Commission. It has been written against a background of change in interactions between public servants and Ministers' offices at the Commonwealth level. We know that the number of Ministerial advisers has grown over the last 20 years; we believe (though no data is available) that the numbers of APS employees interacting with Ministers and their advisers has expanded correspondingly. We are certain that technology and media expectations are increasing the speed of their interactions.
The guide examines broad good practice principles associated with establishing the roles and responsibilities that define interactions between Australian public servants and Ministers and their advisers. It also identifies particular issues that present challenges to APS staff from time to time that might call for more specific guidance at the agency level.
124. Appendix 6 to the Practice Guide sets out a checklist to assist APS officers in applying the APS Values of responsiveness, accountability and remaining apolitical. The checklist extends over five pages and I will mention only a handful of
"... Oral advice should be followed by written advice."[103]
"When making decisions [regarding grants and appointments], you must act in accordance with the law, including the APS Values and Code of Conduct, and with any governmental policy and decisions. If a conflict arises between government policy, agency guidelines and the law, the law prevails."[104]
"Ensure that you, or your managers, are always confident that instructions are coming from the Minister by:
∙ in the case of briefs, requiring the Minister's signature before acting on the recommendations
∙ in the case of significant oral requests from Ministerial staff, requiring subsequent confirmation in writing or by email that the request is endorsed by the Minister."[105]
"All significant decisions or actions need to be documented to a standard that would withstand independent scrutiny. Briefings and records maintained need not be lengthy, but should be fit for purpose.
The Australian National Audit Office has provided guidance on good record keeping. This is available at: http://www.anao.gov.au. The National Archives of Australia has also provided advice for all APS employees on good record keeping. This is available at: htp//www.naa.gov/recordkeeping/default.html.
It is good practice to maintain a record of oral briefing provided to Ministers and their advisers of significant issues and any resulting discussions and decisions.
On key issues, and where sufficient time is available, Ministers should be provided with written briefings to give assurance that the issues and options have been clearly presented and that any decisions taken by the Minister are understood and recorded.
125. Australian Standard AS ISO 15489.102002 (AS 15489) has been prepared by the Joint Standards Australia/Standards New Zealand Committee IT-021 on Records Management for Australia (Standards Committee). AS 15489 has been made in three parts. Part One provides best practice records management policies and procedures. Section 4 of Part One discusses the benefits of records management and includes the general statement that:
"Records contain information that is a valuable resource and an important business asset. A systematic approach to the management of records is essential for organizations and society to protect and preserve records as evidence of actions. A records management system results in a source of information about business activities that can support subsequent activities and business decisions, as well as ensuring accountability to present and future stakeholders. ..."[107]
126. That general statement is followed by statements of principle that are more directed to particular issues. Among them is the following:
"Records are created, received and used in the conduct of business activities .... To support the continuing conduct of business, comply with the regulatory environment, and provide necessary accountability, organizations should create and maintain authentic, reliable and useable records, and protect the integrity of those records for as long as required. To do this, organizations should institute and carry out a comprehensive records management programme ..."[108]
127. ASO 15489 also sets out the general characteristics of a record:
"A record should correctly reflect what was communicated or decided or what action was taken. It should be able to support the needs of the business to which it relates and be used for accountability purposes.
As well as the content, the record should contain, or be persistently linked to, or associated with, the metadata necessary to document a transaction, as follows:
Records management policies, procedures and practices should lead to authoritative records which have the characteristics given in 7.2.2 to 7.2.5 [i.e. authenticity, reliability, integrity and useability]."[109]
128. Dr Shergold has issued Chief Executive Instructions. Among them is Chapter 11 entitled "Managing Information and Records" (PM&C's Instructions). It set out instructions directed to providing for the effective creation, capture and management of information in records within PM&C. Dr Shergold's Summary reads in part:
"Good information and records management is an essential requirement for efficient government administration and accountability. It is the basis for establishing and maintaining documentary evidence of government activities and helps agencies manage and preserve corporate memory for short and long-term purposes.
As an Australian Government department we are responsible and accountable to the government and the public for our actions as individuals and as an organisation. The department needs to be able to demonstrate the effective and efficient use of resources and be accountable for decision-making processes in accordance with the law.
Fundamental to meeting these obligations are the creation of records that accurately document the business processes, decisions, outcomes and activities of the department. Records are the primary means by which government agencies explain their decisions and substantiate what they have done. They show whether the department, or responsible individuals within it, have met defined legal, organisational, social or moral obligations.
129. A section is headed "Creation of Records" and it sets out the responsibilities of PM&C's officers:
"11.11 All officials are responsible for creating and capturing effective corporate records of their substantive business activities and for ensuring that these are managed within the department's official recordkeeping systems and in accordance with departmental policy ad guidelines.
11.12 To ensure that the department's corporate records are complete, accurate, relevant and have evidentiary value, officials should retain and file a continuum of significant documents and information which is structured to provide evidence of the sequence and process of activities, actions or decisions as well as final outcomes.
11.13 All officials are responsible for documenting actions, events, conversations or other transactions where they provide evidence of formal advice or directions, or significant decisions. This includes creating appropriate records documenting incoming or outgoing correspondence, minutes of meetings, conversations, e-mail correspondence, telephone calls and other communications.
11.14 E-mail is a form of business correspondence and where it contains formal advice or directions, or documents significant decisions, it is also a corporate record and must be printed out and put on an appropriate departmental file.
11.15 E-mails that are corporate records should include transmission and receipt data for adequate and proper documentation of business activities including sender's name, date transmitted, names of recipients and subject."[111]
130. DEWR has a similar document. It is entitled "Information Management Practical Guide" (DEWR Guide) and said at the outset that "The department's information capital is a key resource, and as such needs to be managed effectively" and, later, "Our information assets are a core component of our intellectual capital which is used to generate value for the department." [112] Business Rule 06 states that "Records are to be created and managed as evidence of business activity."[113] Officers' attention is drawn to the Recordkeeping Policy and to the Records Management Guideline.[114] The Recordkeeping Policy "... aims to establish a framework for the creation and management of authentic, reliable and usable records to support the business of ..." DEWR.[115]
131. DEWR also has a document entitled "Records Management Guideline 2005-07" (DEWR Records Management Guideline). It begins with an introduction stating that:
"All employees of the department have a responsibility to capture, maintain and store corporate records. Corporate records are those that are required to be kept to support the business of the department and are also used to account for DEWR actions to government and the community. The decisions made about the creation, maintenance and use of records and their management systems must be made in accordance with DEWR legislation and the Australian National Archives and other statutory obligations. The records must also conform to recordkeeping, data processing, auditing, standards, and applicable rules and policies."[116]
132. More detail is given a little later in relation to DEWR's legislative obligations:
"The Department is committed to following the laws related to recordkeeping including the Archives Act 1983, the Privacy Act 1988, the Freedom of Information Act 1982, the Evidence Act 1995 and the Electronic Transactions Act 1999. The department also recognises its obligations to be openly accountable for its actions under the Public Service Act 1999. The Department is committed to developing and maintaining recordkeeping systems that capture and maintain records with appropriate evidential characteristics in accordance with the requirements of these legislative Acts."[117]
133. Under the heading of the "Purpose of a file", DEWR's Records Management Guideline notes that "Files should provide evidence that documents your business activities adequately. Records should be created to document what happened?, What was decided or recommended?, and What advice or instruction was given?".[118] The term "business activity" "is an umbrella term covering all the functions, processes, activities and transactions of an organisation and its employees."[119] DEWR's Records Management Guideline goes on to explain this in more detail:
"Records contain information that is a valuable departmental asset. They provide information about business activities and decisions that provide accountability for the present and the future. They enable a range of efficiencies such as; retention of corporate memory, delivery of consistent services, provide for business continuity, provide evidence and protection in litigation and are required to be kept as part of your obligations under the Public Service Act and the APS Values and Relationships."[120]
134. The decision on what to file rests with the individual DEWR officer but must be made after considering aspects such as:
135. Officers should, DEWR's Records Management Guideline states, be created for:
"▪ verbal conversations of a work nature, including phone calls
136. I will begin with a general submission made by Mr McKinnon before moving to documents 1 to 13D in relation to which the first conclusive certificate has been issued under s 36(3). I will then consider those documents in relation to which the second certificate has been issued under s 36(3) and conclude by considering those documents for which exemption has been claimed but in relation to which there has been no conclusive certificate.
137. Mr McKinnon submitted that the exemption provisions are to be interpreted in light of the object of the FOI Act. That object is set out in s 3(1) and reads, in part:
"The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a) ...
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
(c) ..."
138. Mr McKinnon relied on the ordinary meanings of two words used in s 3(1). The first word is "necessary" which may be defined as an action or item needed for a purpose. The second is "essential" and that refers to what is absolutely necessary, indispensable, fundamental or basic. Those words underlined that only that which is necessary or essential to be protected should be exempted from disclosure. What is necessary or essential will be decided after the magnitude of the consequences is considered and alternative management methods are taken into account. Where the consequences of disclosure may be significant harm to national security or public safety, a low risk of that harm's occurring will be sufficient to bring a document within an exemption. A higher likelihood of the occurrence of a harm will be required where the consequences of disclosure are less serious.
139. In making this submission, Mr McKinnon relied on a passage from the judgment of Bowen CJ and Fisher J in News Corporation v National Companies and Securities Commission[122] in which they said that s 36(1)(b) "... is to be interpreted according to the words used, bearing in mind the stated object of the Act."[123] What he did not refer to was the later decision of Bowen CJ and Fisher J in News Corporation Ltd v National Companies and Securities Commission (No 4)[124] to the effect that it is inappropriate to interpret the exemptions narrowly in light of the FOI Act's stated object in s 3.[125] The later position would seem to be the better view. Section 3(1)(b) is a statement of intent. Part IV of the FOI Act sets out what Parliament has regarded as the "exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities." That it has done so is emphasised by the fact that each exemption is to be construed according to its own terms. It is not to be read as limited in its scope or operation in any way by any other provision of Part IV. That is the effect of s 32(a).
140. The fact that I do not accept Mr McKinnon's view regarding the place of the objects clause in the interpretation of the exemption provisions does not mean that I reject his submission entirely. I accept that I must be careful to have regard to the precise ground set out in s 36(1)(b) even though the review I may conduct is limited in light of the two certificates issued by Dr Shergold. That is to say, I must be careful to ask myself whether there are reasonable grounds for the claim that the disclosure would be, and not may be, contrary to the public interest.
Documents 1 to 13D: are they within the scope of s 36(1)(a)?
141. I have not seen documents 1 to 13D in their entirety although I have seen copies of those parts of them to which Mr McKinnon has been given access under the FOI Act. As a conclusive certificate has been given in relation to those parts of them to which he has not been given and which PM&C has claimed are exempt, I am not entitled to inspect them as a matter of course. Instead, I may only do so if I am not satisfied, on the basis of affidavit evidence or otherwise, that there exist reasonable grounds for the claim made in the conclusive certificate. That is the effect of ss 58E(1) and (2) of the FOI Act.
142. In another case, it is conceivable that this restriction on my examining the documents might cause me some difficulty. Any difficulty would arise from the requirement that I must not only consider the issues relating to the grounds raised in the conclusive certificate but must also consider whether the document comes within the scope of s 36(1)(a). Indeed, the conclusive certificate would have no relevance and the document would not be exempt under s 36 at all if it were not to come within the scope of s 36(1)(a).
143. The difficulty does not arise for me in this case for I am satisfied that they are documents that their disclosure under the FOI Act would disclose matter of the sort described in s 36(1)(a). Documents 1 to 10, 12, 13,[126] 13A, 13B, 13C and 13D adopt a similar format. Taking Document 1 as an example, it comprises an Agenda for a meeting of the WRRSC on 13 July 2005 and a document entitled "Transmission of business". The document appears to relate to the agenda item "Transmission of business". It canvasses the transmission of business provisions in the Workplace Relations Act 1996 (Workplace Relations Act) and the provisions in the Industrial Relations Act 1988 relating to Australian Workplace Agreements (AWAs). There then follow three sections that have been omitted from the disclosed material. One is headed "private sector", another "public sector" and the third "stakeholder views". There then follows a section headed "Government Policy" and outlining a proposal in a Ministerial Discussion Paper issued in September 2000 to define what is meant by a transmission of business and addressing its consequences in relation to the operation of awards, certified agreements and AWAs. Passages in that section have not been disclosed to Mr McKinnon. The passages under the headings of "Reform Options" and "Recommendation" have not been disclosed.
144. Document 11 comprises only the minutes of a WRRSC meeting on 15 June 2005. Access to most material has been refused. Material to which access has been given relates to a summary of the existing law relating to the power of the Australian Industrial Relations Commission (AIRC) to suspend or terminate a bargaining period and with regard to a recommendation to remove its power to arbitrate an award under s 170MX of the Workplace Relations Act. Document 13 includes an email that is headed "IDC: Workplace Relation Reform" and advises its recipients that it sets out "... some thoughts on the paper". The paper is not identified but arguably it relates to the Discussion Paper referred to in the agenda for the meeting on 14 December 2004. That is a paper concerned with reform options. It appears from the headings that remain that the email canvasses what the paper proposes, the differences between or among the options proposed and other issues it raises.
145. Having regard to the content of the documents and the evidence given by Mr Sedgley and Mr Kovacic, I am satisfied that the documents were prepared for the purposes of developing and testing proposals and options for changing the law relating to workplace relations. They were prepared for and on behalf of the WRRSC in the context of an existing legislative framework, network of regulatory bodies such as the AIRC and the Australian Fair Pay Commission and certain statements of policy that had already been announced by the government. Although the material has been excised from the copies, I am satisfied from what remains and from the subject matters indicated in the various Agendas that all of the material would have been of that type. Having regard to those parts to which I have had regard, I am satisfied that the documents are not of a kind referred to in s 9(1) of the FOI Act and do not contain purely factual material as I understand that to be in light of s 36(5). Furthermore, they do not contain reports or statements of reason as set out in s 36(6).
146. Document 13 comprises several parts, three of which are documents 13.1, 13.2 and 13.3. From my examination of the document as disclosed to
Mr McKinnon and having regard to the affidavit of Mr Sedgley, I find that document 13.1 is an email from Mr Malcolm Greening, who was then a Senior Adviser in the Economic Division, to Ms Jenny Goddard, a Deputy Secretary in PM&C, and
Ms Luise McCulloch, the then Assistant Secretary of the TSWR Branch. The subject is said to be "IDC: Workplace Relations Reform" and Mr Greening tells the recipients that "Below are some thoughts on the paper". The paper, Mr Sedgley states, is a DEWR paper setting out options for workplace relations reform. These documents are similar to the remainder of documents 1 to 13D. For the reasons I have given above, I consider that they also come within the scope of s 36(1)(a) and are not excluded by ss 36(2), (5) or (6).
147. Documents 1 to 13D contain handwritten annotations. I accept the evidence of Mr Sedgley that they were made by Mr Greening. He was the officer attending the particular meeting of the WRRSC to which each document relates. Some are corrections to the text. Others are in the form of sidelining or underlining, ticks and asterisks. In addition, there are notes of Mr Greening's thoughts about the matters raised in the documents and the issues they raised in the context of workplace relations reform. There is no suggestion that any of the notes was unrelated to the topics raised in documents 1 to 13D or any of them.
148. I am satisfied that notes of this sort are necessary for the thinking processes of the officer concerned and so of PM&C. They would be so closely connected with the substantive text of the documents and for the purposes of their consideration that they must be regarded as having the same characteristics as the documents on which they appear. Therefore, I am satisfied that they come within s 36(1)(a) of the FOI Act and are not excluded by ss 36(2), (5) or (6).
Documents 1 to 13D: first certificate and the Cabinet-related ground
149. As the ground in the first certificate asserts, many of the documents in documents 1 to 13D have been marked "Cabinet-in-Confidence". It is also clear that they were part of policy development at a high level as the WRRSC included senior officers of the represented departments. Furthermore, it cannot be gainsaid in the context of the Westminster system of government, upon which the Australian system of government is based, that the confidentiality of Cabinet documents and Cabinet deliberations is, as a general principle, regarded as necessary to support that system. That confidentiality is expressly recognised and preserved by s 34 of the FOI Act, to which I have already referred above.[127] An explanation for the need to maintain confidentiality is found in the Cabinet Handbook, which sets out the principles and conventions by which the Cabinet system works. It states:
"2.11 Collective responsibility is supported by the strict confidentiality attaching to Cabinet documents and to discussions in the Cabinet Room. Ministry, Cabinet and Cabinet committees are forums in which ministers, while working towards a collective position, are able to discuss proposals and a variety of options and views with complete freedom. The openness and frankness of discussions in the Cabinet room are protected by the strict observance of this confidentiality."[128]
150. The documents regarded as Cabinet documents in [7.2] of the Cabinet Handbook appear to come within the compass of those described in s 34(1) of the FOI Act but there is no need to decide this. What is important is that they do not extend to documents of the sort comprised in documents 1 to 13D. Each of the documents described in [7.2] has a direct relationship with a meeting of Cabinet or of a Cabinet committee. Where documents are not of a sort submitted formally to Cabinet or a committee of Cabinet, they are documents that have been circulated by Ministers in the Cabinet room, comprise correspondence that proposes matters to be raised in Cabinet without submission or are documents of the Cabinet Secretariat recording the deliberations of Cabinet. For the purpose of the Cabinet Handbook, Cabinet documents do not comprise departmental documents prepared for the purpose of canvassing options to be put to a Minister. They do not comprise documents that are prepared to brief Ministers on matters to be raised in Cabinet except to the extent that those documents contain copies or extracts of documents that are regarded as Cabinet documents.
151. On the face of those parts of the documents to which Mr McKinnon and I have had access, there is nothing to suggest that they contain material of the sort that is protected by the convention of Cabinet confidentiality. There is no suggestion that any part of them has been submitted to Cabinet or is an official record of Cabinet. There is no reason for thinking that their disclosure per se would involve a disclosure of any Cabinet deliberation or disclosure. Indeed, the Cabinet-related ground in the certificate does not suggest that they do. It may be that options considered in documents 1 to 13D were ultimately considered by Cabinet or it may not be. A classification of "Cabinet-in-Confidence" cannot give them a status that is not suggested by their substance.
152. Having regard to all of the material that I have, there are reasonable grounds for concluding that disclosure of documents in the nature of Cabinet documents of the sort described in the Cabinet Handbook or protected from disclosure under the FOI Act by s 34 would be contrary to the public interest. I have concluded, however, that documents 1-13D are not of that nature. The evidence does not support a finding that their disclosure would compromise the confidentiality of Cabinet deliberations and so the notion of collective responsibility of Cabinet. Consequently, I have concluded that there are no reasonable grounds in this case for the claim that disclosure of documents 1 to 13D would be contrary to the public interest for what has been described as the Cabinet-related ground.
Documents 1 to 13D: first certificate and the DEWR recommendations, accountability and discounted options grounds
153. I have linked these three grounds because they all seem to have the same thing at their heart. In essence, they are based on a claim that the government of the day is accountable to the Australian community for what its policy is in a particular area and for what it has included in a particular Bill submitted to Parliament. It is not in the public interest to require it to explain what it considered and what it rejected.
154. In the Australian system of government, a government is clearly entitled to promote and defend its actions in developing policy and the legislation it has promoted on the basis of what it has done. As part of its promotion and defence, it will necessarily have to reject other options that it could have taken and that are put to it by people such as commentators, journalists or members of the public. That debate should be robust but it should be focused on what is. It should not be diverted to questions related to matters other than what is. Those questions could include what might have been, why one option was chosen over another and whether the views of one interest group or another or those of Ministerial advisers or those of APS officers were preferred. Those sorts of questions might be legitimate questions in another context. So too might the nature and quality of the advice that was tendered to government and the range of options with which it was tendered. Questions of this sort may, for example, be relevant in an historical analysis of the course of workplace relations law or in an analysis of opportunities lost and taken. If it were a case of balancing public interests, they might be relevant questions in the context of a claim for exemption under s 36 but in the absence of a conclusive certificate. So too would factors such as the time that has elapsed between the advice and any disclosure of it.
155. This, however, is not an occasion on which to balance competing public interests, if there be more than one. It is an occasion to consider whether there is a reasonable ground for the claim that has been made. That claim must be considered in the circumstances that currently prevail. Those circumstances are that matters relating to workplace relations law are very topical and the subject of much debate. It is not, however, in the interests of the efficient use of resources that a government should be required to disclose options and opinions to which it had, or might have had, regard in formulating its final position. The public's scrutiny of a government policy or of a particular piece of legislation is not advanced by the government's explanation of why it did or did not adopt a particular option. If it needs to support its position by reference to factual material or by reference to reports of the sort referred to in s 36(6), that is a different matter. It should be prepared to disclose all of that type of material regardless of whether it supports its position or not. Indeed, that sort of material is not protected under s 36 for it is expressly excluded by either ss 36(5) or (6).
156. In light of these matters, I have concluded that there is a reasonable ground for the claim that it is not in the public interest to divert public attention from what is to the range of options that were presented to government by one group, being the WRRSC, in documents 1 to 13D. The government is currently accountable in the context of the workplace relations for its acts and omissions regarding the workplace relations law that has been enacted and not for amendments to that law that it may enact in the future. Therefore, I have concluded in the circumstances that currently prevail that there is a reasonable ground for the claim whether it is formulated in the DEWR recommendations ground, the accountability ground or the discounted options ground.
Documents 1 to 13D: first certificate and the senior officers' opinions ground
157. I have difficulty with this ground. There is no evidence that points to there being a risk of confusion between the two and that there should be such a risk is not something that is readily apparent. The advice and opinions of senior officers will, if properly documented, will always be clearly differentiated from the final decisions taken by a Minister or by Cabinet. On the material that I have, I do not consider that there is any material that supports this ground. Therefore, I have concluded that it is not reasonable.
Documents 1 to 13D: first certificate and the incomplete information ground
158. This ground is founded on the notion that the Australian public would be misled if it were to have access to documents 1 to 13D because, presumably, they might think that was all the information available to government. It is conceivable that some might think so but the public can generally be trusted to think a little more widely than that. As Callinan and Heydon JJ said, they can be assisted in their understanding by those, such as an informed journalist, who have expertise. That is particularly so given that it is unlikely that members of the public will see the documents themselves. If they become aware of them, it will generally be through media reports. I do not consider that there is a reasonable basis for this claim.
Documents 1 to 13D: first certificate and the apolitical public service ground
OMITTED FROM THIS COPY OF THE REASONS FOR THE REASONS GIVEN AT [26 - 30] ABOVE
Documents 1 to 13D: first certificate and the frankness and understanding, reduced writing and written analysis grounds
161. I have linked these three grounds because it seems to me that they share a common tension. That is the tension between the ground claimed and the obligations of APS officers to comply with the law. ...
162. It is clear from that material that APS officers are part of an APS that must uphold APS Values and comply with the law. The APS must be openly accountable for its actions and must be responsive to Government in providing frank, honest, comprehensive, accurate and timely advice. It must be apolitical and impartial. Not only must the APS meet those obligations, it must be able to demonstrate that it has done so. That is to say, it must be able to demonstrate that its advice is objective, impartial and timely as well as responsive. It must have systems to monitor the effectiveness and quality of its advice. Those systems require APS officers to maintain proper records. It is clear from the APS Values and the Directions as well as the Indicators relating to them that APS officers are expected to obtain and maintain written records of the instructions they are given by Ministers and their staff. They are advised to maintain a record of oral briefings provided to Ministers and their staff on significant issues and any resulting discussions and decisions. Written briefings are encouraged. The written records are not kept for their own sake but in order to demonstrate that the APS is apolitical and accountable. Accountability extends beyond the qualities of the advice to the efficient, effective and ethical use of the resources allocated to give that advice. The APS must ensure that it has reporting arrangements in place to give account of each agency's performance and its effective, efficient and ethical use of resources. That must be underpinned by existence and maintenance of good recordkeeping systems. These are not simply standards to aspire but statutory requirements framed in terms of the APS Values and the Directions made under them. I have set them out in detail above.
163. These requirements are not simply imposed upon the APS as a collective unit but each individual APS officer is required at all times to behave in a way that upholds the APS Values. That is the effect of s 13(11) of the Public Service Act. Appendix 6 of the Practice Guide written to assist APS officers to apply APS
Values. The need for written records is emphasised in the passages that I have set out above.[130] They are regarded as an important part of maintaining the apolitical quality of the APS. Written records do not need to be lengthy but do need to be a source of information about what is being done and how activities and decisions are supported as well as a tool to ensure that the agency is accountable not simply to those with an interest now but to those who do so in the future. If all that is recorded is a record of the decisions made by a Minister to whom an agency proffers advice, it is difficult to see how an APS agency can account for the personnel resources it uses in advising the Minister. How can it demonstrate that the advice that it gave was frank, honest, comprehensive, accurate and timely advice?
OMITTED FROM THIS COPY OF THE REASONS FOR THE REASONS GIVEN AT [26 - 30] ABOVE
167. ... removal of departmental advisers from the policy loop would be very serious and would, on any view, diminish the quality of policy generated by the Commonwealth government and underpinning Commonwealth legislation and programmes. If that is the course that would be likely to be taken, Ministers should be asked to and, if asked, be prepared to give evidence of that. It is unfair to ... expect ... [APS officers] to speak to the issue. Whether any Minister was asked to do that in this case is not a matter for me to know.
168. Having regard to all of the circumstances and to the documents, I have concluded that there are no reasonable grounds in this case for the claims that disclosure of documents 1 to 13D would be contrary to the public interest for what has been described as the frankness and understanding, reduced writing and written analysis grounds.
169. Before I leave this ground, I note that my conclusion may appear not to be consistent with those expressed by Senior Member Dwyer in Wallace and Director of Public Prosecutions[131] and Deputy President McDonald in Re McGarvin and Australian Prudential Regulation Authority.[132] Both were referred to in the written submissions of Mr Hanks and Ms McKenzie. Neither case concerned a conclusive certificate and so each was concerned with the public interest test in s 36(1)(b).
170. In Wallace, Senior Member Dwyer accepted that disclosure of documents under the FOI Act would tend to inhibit advice or recommendation and its recording in the future but I note that they were not documents of the sort found in documents 1 to 13D. They were notes between lawyers working in the Office of the Director of Public Prosecutions (DPP) in connection with decision-making within that office and in relation to the conduct of litigation and the provision of legal services. Although both the DPP lawyers and the officers comprising the WRRSC might well have thought their communications and discussions occurred in a confidential setting, the work on which they were engaged was in a very different category. One was engaged in work related to litigation and the other with policy advice to Ministers. One was not the subject of specific Directions by the APS Commissioner regarding record keeping and the other was.
171. In McGarvin, Deputy President McDonald was concerned with a document that canvassed a number of options that were open to the Victorian government as to the way in which it fiscally managed public sector superannuation in Victoria. He touched upon there being a public interest in "civil servants being able to communicate in confidence information directly to their responsible minister on
issues which are considered to be sensitive"[133] and then continued:
"... Even if, as is the case now, some years have elapsed, it may still be considered contrary to the public interest that such correspondence be liable to be released. Having regard to the contents and nature of the advice in the deliberative processes of how government should deal with complex issues involving Commonwealth/state relations and relations with other parties, the tribunal is satisfied that it would be contrary to the public interest for the document to be released. ..."[134]
172. Although Deputy President McDonald has begun with a statement focused on APS officers, it appears that he has taken other matters, such as time elapsed and sensitivity, into account. These came into my consideration in relation to the DEWR recommendations, accountability and discounted options grounds. In the more limited context of the Cabinet and inhibition ground, I do not consider that these matters are relevant to support a claim that disclosure of the documents would inhibit APS officers in carrying out their duties.
173. To my mind, there appears to be a similar move between the two aspects in the judgment of Burchett J in Shergold v Tanner.[135] Although in dissent on the issue under consideration, Burchett J observed:
"The public interest in the maintenance of confidentiality in the deliberative processes of government, that is to say in the formation of policy as distinct from its final statement and implementation, is well recognized, not only in Australia, but in other countries. In the United States, a corresponding exemption has been justified as promoting candour in policy discussions within a department of government: Coastal States Gas Corporation v Department of Energy [1980] USCADC 76; (1980) 617 F 2d 854 at 866 (United States Court of Appeals, District of Columbia Circuit). The Court explained (ubi cit) that the exemption for a deliberative document looks to "whether it reflects the give-and-take of the consultative process", and "covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency". In Renegotiation Board v Grumman Aircraft Engineering Corp [1975] USSC 82; (1975) 421 US 168 at 184, White J, delivering the Opinion of the Supreme Court, said the law "distinguish[es] between predecisional memoranda prepared in order to assist an agency decision-maker in arriving at his decision, which are exempt from disclosure, and postdecisional memoranda setting forth the reasons for an agency decision already made, which are not." In France, reports and surveys intended to assist governmental policy deliberations may be exempt from access under the French law of freedom of information: Democracy, Participation and La Transparence: Freedom of Information in France and Australia, Australian National University, unpublished thesis by A C Johnson (1999) at 124, 128. Whether, in the case of a document falling within the terms of the Australian provision in s 36, disclosure would be contrary to the public interest is, again, a question involving a significant policy element, which may have been thought appropriate for political decision."
174. I prefer to separate the two aspects as I have done. Separation is also the approach taken in the certificates. It seems to me separation more readily recognises the place of consultations and the place of deliberations internal to the decision-making process. Consultations may occur at agency level but they may also, as occurred in Howard, occur with bodies outside the APS. Protection of consultations outside the APS may require different considerations. Those consulting with government are not subject to the same statutory standards as those working within the APS. It may be that, in particular circumstances, their candour and frankness would be inhibited. Deliberations and consultations that occur as part of the decision-making process are a different matter and are, in my view, more properly considered in the context of separating the pre-decisional deliberations from the post-decision deliberations and the principle that government is accountable for what is has done, or has omitted to do, in implementing a particular policy but is not accountable for what was put to it or considered by it and rejected. This is the consideration that underpins the DEWR recommendations, accountability and discounted options grounds.
Documents 1 to 13D: first certificate and the Cabinet and inhibition ground
175. The first part of this ground is closely related to the three grounds I have just considered. In so far as it is based on a claim that disclosure of documents 1 to 13D would tend to inhibit the recording of any analysis of policy issues by APS officers, I do not consider that there are reasonable grounds for it. I rely on the reasons I have already given.
176. The second part of the ground is based on a claim that senior APS officers have a reasonable expectation that the documents would remain confidential and that their release would tend to inhibit frank and objective analysis and evaluation of issues and policy options in the future. It seems to me that it may fairly be restated in this way. If the work that they did as APS officers were revealed, they would not in future do the work required of them as APS officers holding senior positions, which required them to give policy advice and to do so in a way that promotes the APS Values.
177. Whichever way the claim is stated, it cannot be said to have a rational basis. Senior APS officers may well have an expectation that their advice will remain confidential and, for the most part, that it is often the case. To suggest that they would be inhibited in the performance of their duties if their advice were released would require clear evidence. I do not have that evidence. Without it, I struggle to understand how, in an APS that is committed to being apolitical and accountable to what the literature describes as its "stakeholders" and which has a statutory as well as ethical duty to perform its duties would be inhibited. Its stakeholders must include the Australian community. My struggle is such that I have concluded that there are no reasonable grounds in this case for the claim that disclosure of documents 1 to 13D would be contrary to the public interest on the basis of any inhibition of frank and objective analysis and evaluation of issues and policy options in the future.
178. The third part of this ground is to the effect that release of the documents would disclose, or tend to disclose, the nature of Cabinet's deliberations. It would do that because they contain discussion of options for consideration by Cabinet that were ultimately not pursued. On the material that I have, it appears that the options were being considered at the level of the WRRSC. They are said in the ground in the first certificate not to have been pursued by Cabinet. There are occasions when what was considered by Cabinet could be ascertained by knowing what it did not consider. On the evidence, there does not seem to be any material pointing to this being such an occasion. I do not consider that there is a reasonable ground for this claim.
Documents 14 to 18: are they within the scope of s 36(1)(a)?
"Documents 14 and 15 are internal PM&C file notes prepared by Jenny
Goddard, a Deputy Secretary of PM&C. While the documents are undated, I have been unable to ascertain from their location in the relevant files that they date from around August 2004. These file notes were brought into existence to facilitate consideration of options to rationalise Federal/State workplace relations and possible initiatives in relation to the setting of federal minimum and trainee wages. The file notes were prepared following discussions with the Prime Minister's Office."[137]
"Document 16 is a print-out of an email or draft email dated 2 February 2005 from Luise McCulloch, (then) Assistant Secretary of the Taxation, Superannuation and Workplace Relations Branch of PM&C, to Peter Crone, then a Senior Adviser in the Prime Minister's Office, and Peter Conran, the Secretary to Cabinet and head of the Cabinet Policy Unit. The email or draft email was brought into existence to inform senior officers of the Prime Minister's Office on broad options being considered for reform by DEWR, preparatory to a detailed briefing for the Prime Minister prior to the Cabinet meeting of 22 February 2005. Some of the options summarised have not been publicly revealed or were subsequently implemented in amended form."[138]
"Document 17 is a brief prepared by Luise McCulloch for Peter Shergold, dated 31 January 2005 which summarises and makes recommendations to Dr Shergold regarding the draft submission to be put to Cabinet by the Minister for Employment and Workplace Relations on 22 February 2005. Aspects of the options summarised have not been publicly revealed or were subsequently implemented in an amended form in the legislation."[139]
"Document 18 is an earlier version of a brief for use by the Prime Minister in Cabinet. The brief discusses the options contained in proposals to be put to Cabinet by the Minister for Workplace Relations, highlights the sensitivities of those options and makes recommendations to the Prime Minister in relation to those options. Aspects of the options summarised have not been publicly revealed or were subsequently implemented in an amended form in the workplace reform legislation."[140]
Documents 14 to 18: second certificate and the written analysis ground
181. This ground is the same as the written analysis ground in the first certificate. For the reasons that I have already given, I conclude that this is not a reasonable ground for the claim that disclosure would be contrary to the public interest.
Documents 14 to 18: second certificate and the inhibition ground
182. In part, this ground is the same as the Cabinet and inhibition ground in the first certificate. It also has elements of the apolitical public service ground, the frankness and understanding ground, the senior officers' opinions ground and the written analysis ground. I have concluded that there is no reasonable ground for the claim made in each of them that disclosure of documents 1 to 13 D would be contrary to the public interest. My reasoning is equally applicable to the inhibition ground and it raises no other issues. Therefore, I have concluded that there is no reasonable ground for the claim in the inhibition ground that disclosure of documents 14 to 18 would be contrary to the public interest.
Documents 14 to 18: second certificate and the discounted options ground
183. For the reasons that I gave in relation to the discounted options ground claimed in the first certificate, I have concluded that it is a reasonable ground for the claim that disclosure of documents 14 to 18 would be contrary to the public interest.
Documents 14 to 18: second certificate and the Cabinet confidentiality ground
184. This ground is closely related to the Cabinet-related ground and the Cabinet and inhibition ground in the first certificate. For the reasons I gave in relation to them, I do not accept this as a reasonable ground for the claim that disclosure of documents 14 to 16 would be contrary to the public interest. If disclosure of the documents would involve the disclosure of any deliberation or decision of Cabinet, they would be exempt under s 34 as they would come within s 34(1)(d). The fact that the claim is not made on that basis suggests strongly that they do not. To be fair to the claim, it is not made on the basis that disclosure would have this effect; only that they "indicate" the content of Cabinet deliberations. The evidence does not reveal how this indication is given or how the confidentiality of Cabinet deliberations would be compromised by disclosure of documents 14 to 16. Those documents appear to pre-date the preparation of the EWR Minister's Cabinet submission and the material does not indicate a basis on which the later Cabinet deliberations could be ascertained by their disclosure.
185. Documents 17 and 18 are in a different position. They do refer either to a draft Cabinet submission or to proposals to be put to Cabinet by the EWR Minister. There content leads me to conclude that there is a reasonable ground to claim that their disclosure would be contrary to the public interest for it would be likely to compromise the confidentiality of Cabinet and the notion of collective responsibility.
Documents 14 to 18: second certificate and the senior officers' opinions ground
186. For the reasons that I gave in relation to the ground claimed in the first certificate, I do not consider that there is any material that supports this ground and have concluded that it is not reasonable.
Documents 14 to 18: second certificate and the high level ground
187. This ground has some foundation in the reasons for decision of Davies J in Howard. He said that the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, then the more likely it will be that the communications should not be disclosed. Davies J did not say that communications between such persons on such matters will never be disclosed. He was speaking in the context of s 36(1)(b). That means that the content of the communications and their context, as well as the identity of those who took part in them, must be taken into account in order to decide whether release would be contrary to the public interest.
188. The claim is not framed in these terms. It relies simply on the level at which the recommendations were made and not to the effect of their disclosure. Without that further step, I do not have a basis on which I can consider whether there is a reasonable ground for the claim that disclosure of documents 14 to 18 would be contrary to the public interest. I could propose various bases for a claim that their release would be contrary to the public interest given the content of documents 14 to 18 and the seniority of those who were communicating and those who were receiving that information. Some of them, such as disclosure would inhibit the ability of APS officers to give full, frank and candid advice in the future, I have already rejected as a reasonable basis. Others I might not reject but it is not for me to formulate the basis of the claim that disclosure would be contrary to public interest. In view of that, I have concluded that there is no reasonable basis for the claim that disclosure of documents 14 to 18 would be contrary to the public interest on the high level ground.
Documents 20-21, 22-31, 32, 35, 37, 39-46, 48-52, 53-54 and 58: are they within the scope of s 36(1)(a)?
189. On the basis of the affidavit evidence of Mr Sedgley and Ms Croke and having regard to those parts of the documents disclosed to Mr McKinnon, I am satisfied that they can be described as follows:
190. For the reasons that I have given in relation to the documents 1 to 13D, I am satisfied that these documents also come within the scope of s 36(1)(a) and are not excluded by ss 36(2), (5) or (6). In summary, they have been prepared in the context of the development of the workplace relations legislation and are part of the "thinking" or deliberative processes that took place within PM&C. They record deliberations or opinions that have been prepared in the course of that process.
Documents 20-21, 22-31, 32, 35, 37, 39-46, 48-52, 53-54 and 58: the second certificate
191. The passages in these documents that have not been disclosed to
Mr McKinnon are the subject of the second certificate. I have already set out my conclusions regarding the grounds in the second certificate and will not repeat them. Two of them are applicable to these documents.
192. To the extent that they refer either to a draft Cabinet submission or to proposals to be put to Cabinet by the EWR Minister, there is a reasonable ground to claim that their disclosure would be contrary to the public interest. I have set out more detailed reasons above but, in summary, their disclosure would be likely to compromise the confidentiality of Cabinet and the notion of collective responsibility. That means that I find the Cabinet confidentiality ground in the second certificate made out in relation to documents 20, 21, 35, 37, 39 to 46, 48-54 and 58.
193. With regard to these documents and to documents 22 to 31 and 32, I find the discounted options ground of the second certificate made out. That ground is the same as that in the first certificate and my reasons are the same.
194. Document 56 comprises the coordination comments made by PM&C to the EWR Minister's submission to Cabinet dated 7 July 2005. I accept Ms Croke's evidence that those comments were later incorporated in the Cabinet submission. Inclusion of coordination comments accords with normal practice. In view of that, that part of the document that records the coordination comments reproduced in the EWR Minister's submission to Cabinet contains an extract from a document submitted to Cabinet. It is true that creation of document 56 necessarily preceded the Cabinet submission. I do not think, however, that this means that a passage in the earlier document cannot be regarded as an extract from the later document when the passage was drafted specifically to be included in that later document. In the circumstances, it is an extract from the EWR Minister's submission and so exempt under s 34(1)(c).
195. In view of my conclusion, I do not need to consider the claim for exemption under s 36.
196. I have examined documents 36, 38, 47 and 57 as well as had regard to their description in Annexure D to Ms Croke's affidavit. I am satisfied that document 36 is a document presented to Cabinet by the EWR Minister on 12 July 2005. Document 38 is the Cabinet Submission made by the EWR Minister in March 2005 regarding workplace relations reform. Document 47 is a letter from the EWR Minister dated 20 May 2005 for consideration under-the-line in Cabinet. Document 57 is a Cabinet Submission made by the EWR Minister regarding workplace relations reforms. It is dated 19 May 2005.
197. I am satisfied that documents 38, 47 and 57 come within the description of the documents set out in s 34(1)(a) of the FOI Act. They have each been submitted to Cabinet for its consideration and have been brought into existence for that purpose. It may be that document 36 is in the same category but whether it was brought into existence for Cabinet's consideration is a matter that requires further thought. It may be that it was brought into existence to aid its consideration but not for its consideration. There is no need to consider this issue for it comes within the description in s 34(1)(d). Its disclosure would involve the disclosure of deliberations of Cabinet. It follows that document 37 as well as documents 38, 47 and 57 are exempt under s 34 of the FOI Act.
Documents 35, 53-54, 55 and 56: legal professional privilege
198. Mr Sedgley described documents 35, 53 and 54 in his affidavit. Document 35 is an unsigned copy of document 53 and the content of document 54 is identical to document 53. Only certain sentences of them are claimed to be exempt under s 42. Of them in relation to document 35, Mr Sedgley said:
"This exemption is claimed on the basis that these parts of document 53 contain summaries of legal advice obtained from the Australian Government Solicitor and would be privileged from production in legal proceedings on the grounds that those parts attract the protection of legal professional privilege. This privilege has not been waived. "[141]
199. If a document is exempt under s 42, it must be "... of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege". That requires me to have regard to what is meant by legal professional privilege. It is a rule of substantive law. A person may use it to:
"...resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings."[142]
200. It is essential that there be a relationship of client and legal adviser and that the communication be made within that relationship. As Lord Buckmaster said in Minter v Priest:[143]
" The relationship of solicitor and client being once established, it is not a necessary conclusion that whatever conversation ensued was protected from disclosure. The conversation to secure this privilege must be such as, within very wide and generous ambit of interpretation, must be fairly referable to the relationship, but outside that boundary the mere fact that a person speaking is a solicitor, and the person to whom he speaks is his client affords no protection."[144]
201. As Campbell J explained in Re Doran Constructions Pty Ltd (in liq):[145]
"In other words, the communication which is protected by the privilege must be one which is made or received by a lawyer in the capacity of lawyer: Alfred Crompton Amusement Machines Ltd v Custom and Excise Commissioners (No 2) [1972] 2 QB 102 at 129, 136, 138
While there is this distinction between the employment of the solicitor, and the character in which a communication is made, I do not accept that it requires that each individual sentence spoken in the course of a single meeting to be individually analysed. ..."[146]
202. The reason for the rule was explained by Advocate General Sir Gordon Glynn:
"Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if the proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks."[147]
203. The party claiming legal professional privilege must establish it on the balance of probabilities and may do so:
"... by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by reference to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence."[148]
204. As a rule of substantive law, it has application beyond legal proceedings.[149] It is not a rule that permits a court or Tribunal to weigh a person's interest in resisting the production of the information or documents either against another's interest in seeing that information or those documents or against a background of the behaviour of the person claiming legal professional privilege. If information or a document is subject to legal professional privilege, a court or Tribunal cannot order its production. The person claiming it may waive the privilege, either intentionally or by implication.[150] As Gibbs CJ said:
"... where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production."[151]
205. It is the use that is made of the document by the person who is claiming legal professional privilege and notions of fairness that are relevant in deciding waiver. Except in one limited area, the authorities do not pay any regard to the person's behaviour with regard to the other party in a proceeding or with regard to other matters. That limited exception arises in relation to communications in furtherance of a fraud or crime. Where the communications are of that nature, they do not attract legal professional privilege in the first place. It is not a case of legal professional privilege's being waived.[152]
206. Legal professional privilege may only be abrogated by the clear words of a statute or by necessary implication.[153] There is no suggestion that there has been any statutory abrogation in this case.
207. As a general proposition, legal professional privilege may be claimed in legal proceedings in relation to advice sought from and given by a lawyer employed by the government. It may be claimed provided the professional relationship between the lawyer and the government agency seeking advice has the necessary quality of independence. In Waterford v The Commonwealth of Australia,[154] the High Court considered the relationship of client and legal adviser in the context of correspondence passing between the Attorney-General and the Treasurer and between officers of the then Deputy Crown Solicitors' office and officers of the Treasury. Mason and Wilson JJ held that:
"... there is no reason to place legal officers in government employment outside the bounds of legal professional privilege. The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser. ... To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment."[155]
208. Brennan J was more circumscribed in his views and accepted only that officers of the Attorney-General's Department or of the Commonwealth Crown Solicitor's Office did not lack the independence that is essential if legal professional privilege is to attach to documents brought into existence for the purpose of their giving advice or for the purpose of obtaining advice from them.[156]
209. I have not been given a copy of document 35 but I do have a copy of documents 53 and 54. I have read them and and agree that they appear to contain summaries of legal advice received from the Australian Government Solicitor (AGS) regarding issues raised in the context of amendments to the workplace relations law.
210. I am satisfied that the AGS is a source of independent legal advice. It is established by Division 2 of Part VIIIB of the Judiciary Act 1903 (Judiciary Act).[157] Its functions include its providing legal services and related services to the Commonwealth.[158] The persons and bodies to whom AGS may provide its services include the Commonwealth, a Minister of the Commonwealth and an officer or person employed by the Commonwealth.[159] An employee of the AGS whose name is on a roll of barristers, solicitors or legal practitioners within the meaning of s 55D(1) of the Judiciary Act is an AGS lawyer.[160] An AGS lawyer acting in that capacity is entitled to everything necessary or convenient for that purpose.[161] Such a person is not subject to the subject to a State or Territory relating to legal practitioners except to the extent that such laws impose rights, duties or obligations on legal practitioners in relation to their clients or to the courts or provide for disciplinary proceedings in relation to the misconduct of legal practitioners. These provisions lead me to conclude that the AGS acts independently of its clients despite its status as a statutory authority of the Commonwealth and its client or clients being officers or Ministers of the Commonwealth.
211. Having regard to the contents of document 35, I am satisfied that the advice was provided by AGS or an AGS lawyer to an officer or officers of the Commonwealth, if not to a Minister, in its capacity of providing legal services or in the capacity of the AGS laywer of providing legal advice. There is nothing to suggest that the Commonwealth has waived the legal professional privilege. It follows that document 35, and so documents 53 and 54 are exempt from disclosure under s 42 of the FOI Act.
212. For the reasons I have given I affirm the decision under review.
I certify that the two hundred and twelve preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie
Signed: ...............................................................
Counsel for the respondent Mr P Hanks QC with Ms F McKenzie
[1] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83
[2] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83 at 66; 279; 85
[3] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83 at 66, 279; 84
[4] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83 at 66, 279; 85
[5] Documents lodged as required by s 37 of the Administrative Appeals Tribunal Act 1975 (T documents), 4
[6] Noted in letter from PM&C to Mr McKinnon dated 24 August 2005: T documents, 17
[7] A report by Messrs Ralph, Allert and Joss published in July 1999
[13] Exhibit 6, Annexure A at [4.16], 17
[14] Exhibit 6, Annexure A at [4.18], 18
[15] Exhibit 6, Annexure A at [4.19], 18
[16] Exhibit 6, Annexure B at [1.2], 3
[18] [1993] HCA 24; (1993) 176 CLR 604 at 624-627
[26] (1984) 6 ALN N347 at N349
[27] (1984) 6 ALN N347 at N349
[28] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[29] [1984] FCA 8; (1983) 51 ALR 581, Bowen CJ, St John and Fisher JJ
[30] [1984] FCA 8; (1983) 51 ALR 581 at 586
[31] [1984] FCA 8; (1983) 51 ALR 581 at 587
[32] Purely factual material may be exempt under provisions of the FOI Act other than s 36.
[33] Policy Proposals for Freedom of Information Legislation (AGPS, 1976) at [10.13]
[34] (1985) 9 ALD 243, Davies J, President, and Mr RA Sinclair and Dr AP Renouf, Members
[35] (1985) 9 ALD 243 at 248-249
[37] (1996) 43 ALD 139 at 150-151 [22]
[39] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 428; 189; 518 [5]
[40] [1989] HCA 61; (1989) 168 CLR 210 at 216
[41] Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 per Dixon J
[42] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 443-444; 202; 531[55]
[43] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 468; 221-222; 550-551 [130]
[44] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 432; 192; 521[16]
[45] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 433; 193; 522 [19]
[46] "The release of the material would tend to be misleading or confusing in view of its provisional nature, as it may be taken wrongly to represent a final position (which it was not intended to do) and ultimately may not have been used or have been overtaken by subsequent events or further drafts." (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 450; 208; 537 [80] per Callinan and Heydon JJ
[47] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 466-467; 220-221; 549-550 [120]-[128]
[49] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 465; 219; 548 [116]-[117]
[50] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 448; 206; 535 [70]
[51] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 432; 192; 521 [14] per Gleeson and Kirby J; 443; 202; 531[54] per Hayne J; and 468; 222; 551 [131] per Callinan and Heydon JJ
[52] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 444; 202-203; 531-532 [56]-[57]
[54] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 445; 203; 532 [59]
[55] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 446; 204-205; 533-534 [65]
[56] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 467; 221; 550 [129]
[57] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 468; 222; 551[131]
[58] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 431-432; 192; 521 [16]
[59] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 429; 189-190; 518-519 [7-8]
[60] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 430; 190-191; 519-520 [11]
[61] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 430-431; 191; 520 [12]
[62] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 431; 191-192; 520 [13]
[63] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 464; 219; 548 [115] and [118]
[64] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 463-464; 218; 547 [113]-[114]
[65] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 465; 219; 548 [118]
[66] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 439-440; 198-199; 527-528 [42] and [44]
[67] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 465; 219; 548 [116]
[68] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 467; 221; 550 [129]
[69] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 468; 222; 551[131]
[70] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 467; 221; 550 [129]
[71] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 468; 221-222; 551 [130]
[72] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 453; 210; 539 [85]
[74] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 446; 204; 533 [62]
[76] (1986) 10 FCR 180; 64 ALR 97 at 190; 106-107
[77] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 446; 204; 533 [61]
[78] McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70 at 76-77; [16] referred to by Hayne J at (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 442; 201; 530 [50]
[79] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 447-448; 205; 534 [69]
[81] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 465; 220; 522 [119]
[82] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 430-431; 191; 520 [12]
[83] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 468; 222; 551 [131]
[84] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 432; 193; 522 [18]
[85] Re McKinnon v Secretary, Department of Treasury [2004] AATA 1364; (2004) 86 ALD 138 at 150; [52] referred to at (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 449; 207; 536 [73]
[86] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 447-448; 205; 554 [69]
[88] (1985) 7 ALD 626 at 634 Given the position expressly taken in McKinnon that the exercise does not permit the Tribunal to engage in a balancing exercise, it would seem that this aspect of Davies J's reasons for decision relating to any benefit from disclosure might have to be treated cautiously.
[89] (1985) 7 ALD 626 at 634-635
[90] (1985) 7 ALD 626 at 635
[91] (1985) 7 ALD 626 at 636
[92] Written submissions at [30.3]-[30.6]
[95] Public Service Act, s 12 and see also Values in the Australian Public Service issued by the Public Service Commissioner in 2002, Introduction at vii (Values in the Australian Public Service)
[96] Values in the Australian Public Service regarding Direction 2.2 at 2
[97] Values in the Australian Public Service regarding Direction 2.6 at 9
[98] Values in the Australian Public Service regarding Direction 2.6 at 10
[100] Values in the Australian Public Service regarding Direction 2.7 at 12
[101] Commonwealth of Australia, 2006, Canberra
[102] Practical Guide, Commissioner's Foreward at iii
[103] Practice Guide, Appendix 6 at 128
[104] Practice Guide, Appendix 6 at 129
[105] Practice Guide, Appendix 6 at 129
[106] Practice Guide, Appendix 6 at 131
[115] DEWR Recordkeeping Policy, [1.1] at 2
[116] DEWR Records Management Guideline, [1] at 1
[117] DEWR Records Management Guideline, [2] at 1
[118] DEWR Records Management Guideline, [4] at 3
[119] DEWR's Records Management Guideline, [12] at 12
[120] DEWR Records Management Guideline, [4.1] at 3
[121] DEWR's Records Management Guideline, [4.1] at 3
[123] (1983) 6 ALD 53 at 85
[124] (1984) 1 FCR 64; (1984) 57 ALR 277
[125] (1984) 1 FCR 64; (1984) 57 ALR 277 at 66; 279 per Bowen CJ and Fisher J
[126] Document 13 also comprises a further document: see [148] below
[128] Cabinet Handbook, 5th edition, 2004, Department of Prime Minister and Cabinet
[129] Values in the Australian Public Service, Direction 2.7 at 12
[133] (1998) 53 ALD 161 at [43]
[134] (1998) 53 ALD 161 at [43]
[136] [2000] FCA 1420; (2000) 102 FCR 215; 179 ALR 150; 62 ALD 584 at 241; 173-174; 607-608
[142] The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561 at 552; 564 [9]
[144] [1930] AC 558 at 568
[146] [2002] NSWSC 215; (2001) 194 ALR 101 at 117
[147] AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705
[148] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; 11 ALR 577 per Stephen, Mason and Murphy JJ at 689; 589
[149] Rich v Australian Securities and Investments Commission [2004] HCA 42 at [24] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ
[150] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 481 per Gibbs CJ and at 493 per Deane J
[151] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 481 per Gibbs CJ
[152] Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 556 per McHugh J
[153] The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561 at 553; 564 [11] per Gleeson CJ, Gaudron, Gummow and Hayne JJ
[154] [1987] HCA 25; (1987) 163 CLR 54, Mason, Wilson and Brennan JJ and Deane and Dawson JJ dissenting
[155] [1987] HCA 25; (1987) 163 CLR 54 at 62
[156] [1987] HCA 25; (1987) 163 CLR 54 at 73
[159] Judiciary Act, ss 55N(1)(a), (c) and (e)
"139. In making this submission, Mr McKinnon relied on a passage from the judgment of Bowen CJ and Fisher J in News Corporation
National Companies and Securities Commission_[1] in which they said that s 36(1)(b) "... is to be interpreted according to the words used, bearing in mind the stated object of the Act."[2] What he did not refer to was the earlier passage in that judgment to the effect that it is inappropriate to interpret the exemptions narrowly or the right of access widely in light of the FOI Act's stated object in s 3.[3] It is inappropriate to lean either way for "The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved."[4] That passage puts the passage to which Mr McKinnon referred in its proper context. Section 3(1)(b) is a statement of intent. Part IV of the FOI Act sets out what Parliament has regarded as the "exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities."
(1983) 51 ALR 581
(2006) 228 CLR 423
(2005) 145 FCR 70
(1984) 1 FCR 64
(1984) 57 ALR 277
(2001) 194 ALR 101
(1993) 176 CLR 604
(2002) 213 CLR 543
(1947) 74 CLR 492
(1987) 163 CLR 54
(1989) 168 CLR 210
(1999) 170 CLR 104
(1986) 161 CLR 475
(1986) 10 FCR 180
(1997) 188 CLR 501
(1976) 135 CLR 674
(2000) 102 FCR 215