APACHE NORTHWEST PTY LTD -v- DEPARTMENT OF MINES AND PETROLEUM [2011] WASC 187 (4 August 2011)

2 These Proceedings concern part of a decision of the Information Commissioner (the Commissioner). The Commissioner found that five documents (the Documents) were, subject to some exceptions within them, not exempt documents under the Act. The effect was that those Documents were to be disclosed by the first respondent to these Proceedings, which is now called the Department of Mines and Petroleum (the Department). The applicant for access was the second respondent in these Proceedings, Lander and Rogers, Lawyers (Lander and Rogers).

3 The term 'exempt document' is defined in the glossary to the Act. An 'exempt document' is a document that contains exempt matter. 'Exempt matter' is defined in the glossary as matter that is exempt matter under sch 1 of the Act. The Documents in relation to which access was ordered are of substantial length. They are, respectively, 171 pages, 1954 pages, 19 pages, 214 pages and 1,632 pages.

4 Prior to the decision of the Commissioner, Apache provided the Commissioner with substantial written submissions, extending to 52 pages (the Submissions in Dispute). The introduction to the Submissions in Dispute contained a request to the Commissioner under the heading 'Confidential Nature of Submissions'. The request was that the Commissioner 'keep these submissions confidential and not disclose any aspect of these submissions'. At that time, the Submissions in Dispute were not provided to Lander and Rogers.

5 The Commissioner delivered his decision on 30 December 2010. Apache filed written submissions in these Proceedings on 5 May 2011. In its written submissions in these Proceedings, Apache refers in a number of places to the Submissions in Dispute (see pars 35, 36.1, 38, 41, 44.1, 44.2, 44.3, 44.4, 45, 63 and 73.2). In particular, pars 44 and 63 of Apache's outline of submissions place considerable reliance upon the Submissions in Dispute. The references in those paragraphs to the Submissions in Dispute are made in support of submissions in this court which include arguments that the Commissioner made findings which were not open, or made without any evidence, or in relation to which there was no probative material to support his conclusions, citing Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 359, 367 368.

6 On 12 May 2011, and on subsequent occasions, Lander and Rogers requested the production of the Submissions in Dispute. On 1 August 2011, Apache provided Lander and Rogers with a copy of the Submissions in Dispute. That copy was heavily redacted: see the affidavit of Benjamin Fraser Dowling sworn on 2 August 2011.

7 On 2 August 2011, the chamber summons which is the subject of this decision was brought. In the chamber summons, Lander and Rogers seek orders abridging the time for service (as to which no objection was taken) and orders that (in summary):

1. Apache produce to each of the respondents an unredacted copy of the Submissions in Dispute.
2. The further hearing of the proceeding be adjourned to a date to be fixed.
3. Apache pay the costs of Lander and Rogers of this application, and the costs of Lander and Rogers and the Department of, incidental to, and occasioned by the adjournment of the further hearing of the proceeding on an indemnity basis.

8 The essence of the submission by senior counsel for Lander and Rogers is that procedural fairness dictates that an unredacted copy of the submissions be provided to permit Lander and Rogers to respond to submissions which are made against it in these Proceedings (ts 11).

9 Apache resists the production of an unredacted copy of the Submissions in Dispute. Apache relies upon s 90 of the Act. Section 90 provides as follows:

1. Court to ensure nondisclosure of certain matter

(1) In hearing and determining review proceedings the Court has to avoid the disclosure of -

(a) exempt matter; or

(b) information as to the existence or nonexistence of a document containing matter exempt under clause 1, 2 or 5 of Schedule 1.

(2) If in the opinion of the Supreme Court it is necessary to do so in order to prevent disclosure of exempt matter or matter of a kind referred to in subsection (1)(b) the Supreme Court may receive evidence and hear argument in the absence of the public and any party or representative of a party.

(3) The Supreme Court is not to include exempt matter, or information of a kind referred to in subsection (1)(b) in its decision in review proceedings or in reasons given for the decision.

(4) If the question of whether or not a document is a document of the agency is in issue, subsections (1), (2) and (3) apply to the contents of the document as if those contents were exempt matter.

10 The construction of s 90(1) causes some difficulty in relation to this chamber summons. It requires this court to avoid the disclosure of exempt matter. However, the question of whether the redactions in the Submissions in Dispute are exempt matter may be related to the very question which this court is asked to decide in these Proceedings. In other words, how can it be known whether the redactions concern matter which is exempt matter until the determination is made in these Proceedings concerning whether matter is exempt? For these reasons, senior counsel for Lander and Rogers characterised the provision as 'upside down' (ts 21): the duty in s 90(1) arises after any hearing sought pursuant to s 90(2). However, as will appear from my reasons below, I consider that the better solution to this conundrum is to treat the mandatory words in s 90(1), 'avoid the disclosure', as including 'potential disclosure' of exempt matter. This is consistent with the relevant definition of 'avoid' in the Oxford English Dictionary which includes 'keep away from; shun; refrain from'.

11 Senior counsel for Lander and Rogers directed the court to two decisions of this court concerning s 90(1) of the Act: Manly v Ministry of Premier & Cabinet (1995) 14 WAR 550 (Owen J) and BGC (Australia) Pty Ltd v Fremantle Port Authority [2003] WASCA 250; (2003) 28 WAR 187 (EM Heenan J). In both of those decisions the learned justices considered that the effect of s 90(1) was that the Supreme Court, in review proceedings under the Act, has no discretion to give access to exempt matter to any person, including the counsel seeking production of that matter.

12 Senior counsel for Lander and Rogers sought to distinguish those decisions on two different grounds. First, they were sought to be distinguished on the ground that these cases involved issues of disclosure of the exempt matter itself; here the question concerns not the exempt matter itself but submissions in relation to the exempt matter. Secondly, it was argued that both decisions were concerned with the effect of s 90(1) of the Act, not s 90(2). The latter section, it was submitted, permits the Supreme Court to make an order allowing the redacted parts of the Submissions in Dispute to be disclosed, perhaps only to counsel themselves, for a hearing under s 90(2).

13 I do not consider that s 90(2) has the effect for which senior counsel contends. If the relevant matter in a document, such as the Submissions in Dispute, is exempt matter then there is no discretion for this court to permit disclosure, even to the opposing counsel. The function of s 90(2) is to permit the court to make orders, such as orders which will permit it to hear ex parte and in camera if necessary, in relation to argument from the party who is in possession of the documents in dispute. In this respect, s 90(2) is no different from the power of the court, in cases where there is a dispute concerning legal professional privilege or public interest immunity, to consider the documents in dispute and hear submissions about those documents in private. The purpose is to ensure that the proceedings are not rendered nugatory by disclosure of the very matter in dispute.

14 As to the first basis for distinction, I do not consider that such a sharp distinction can be drawn between disclosure of exempt matter (which must be avoided) and disclosure of matter which would reveal the content of the exempt matter. If disclosure would reveal the content of exempt matter then, indirectly, exempt matter will have been revealed. But, in any event, this distinction fades almost to vanishing point as a result of concessions which were properly made by senior counsel for Apache. Senior counsel for Apache conceded that the only material which Apache sought to redact would be material in the Submissions in Dispute which was:

(ii) a summary of the content of exempt matter which reveals the content of one or other of the Documents.

In light of this approach, senior counsel for Apache conceded that some of the redactions in the Submissions in Dispute would need to be unredacted (if that is a word).

15 I consider that this is the correct approach to take. There are close analogies to this situation which involve considerations of whether to order production of exempt matter (in reproduced form) and summaries of exempt matter. One such analogy is a solicitor's bill of costs in proceedings where the allegation is that the matter in the bill of costs would reveal the content of work done which is the subject of legal professional privilege. In those circumstances, after inspection in private, disclosure of the summary can be refused to the extent that the summary would reveal the privileged information: see, for instance, Hodgson v Amcor Ltd [2011] VSC 204.

16 During oral argument, senior counsel for Lander and Rogers made reference to the decision of the High Court of Australia in International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319. However, he submitted that his reference to that case was merely by way of contrast with the New South Wales provision in that case which was found to be unconstitutional. Senior counsel eschewed any submission concerning any matter arising under the Constitution or involving its interpretation (see ts 28 29).

17 After I inspect the documents, with assistance from senior counsel from Apache, a further question may also arise. The further question arises if I conclude that the redactions in the Submissions in Dispute, in part or in whole, should be maintained to such an extent that Lander and Rogers are deprived of procedural fairness in this hearing in relation to responding to the matters in the Submissions in Dispute. The further question will then be whether Apache should be permitted to place any reliance on the Submissions in Dispute.

18 In light of these reasons, my order is that I will hear submissions from senior counsel for Apache in relation to the redactions and I will inspect the unredacted version of the Submissions in Dispute to determine whether, and to what extent, they contain potentially exempt matter. To the extent that the Submissions in Dispute would reveal the content of potentially exempt matter then that information in the Submissions in Dispute should not be disclosed at this stage of these Proceedings.