Section 41 of the FOI Act
7 In its consideration of s 41, the AAT examined the contents of the documents and concluded that it would be unreasonable to disclose what it considered to be personal information. The reasons given by the Tribunal were not detailed or lengthy. There is, of course, no vice in that, unless the reasons reveal some error in approach.
8 Having referred to the judgments in Ward v Centrelink, Colakovski v Australian Telecommunications Corporation (1991) and Kristoffersen v Department of Employment Workplace Relations the Tribunal concluded:
1. That there was no doubt that they contain information which would lead to others identifying the author. [This was undoubtedly correct.]
2. That the documents contained information personal about the third person. [This was undoubtedly correct.]
3. That it was clear from the documents themselves that to release the documents would cause distress to the third party. [This was undoubtedly apparently correct if one accepts some statements in the documents.]
4. That no good public purpose would be achieved by the release of the documents.
9 The attack by the applicant upon the approach of the AAT, was, in substance, that these conclusions reflected a legally inadequate consideration in all the circumstances of the task set by s 41 of the FOI Act.
10 First, it was said that the extent to which the information was personal to the third party was legally irrelevant. The applicant referred to what Kirby P said in Commissioner of Police v the District Court of New South Wales and Perrin (1993) 31 NSWLR 606 at 620 to the effect that the general objects of a provision such as s 41 were to protect private information of people who may be dealt with in agency documents. The provision did not extend to circumstances where persons wrote to the Department about another, so it was said. I reject these submissions. The words of s 41(1) are clear and simple. The personal information may be of someone in the position of the third party here.
11 Next, it was said that the phrase "unreasonable disclosure" requires an examination of "all relevant circumstances". The fact, it was said, that the reasons do not deal with the circumstances in which the information was obtained by the agency, the relationship between the applicant, the third party and the agency, whether and to what extent the information affects or concerns the applicant, whether the disclosure of the information would only excite or satisfy the curiosity of the applicant about the person whose personal information would be disclosed, whether it is clear that the applicant intends to use the information for purposes that are illegal, malicious or otherwise not in the public interest.
12 All these are considerations which could have been addressed by the Tribunal. None was mandated by the FOI Act to be considered. In reaching a decision as to whether there would be "unreasonable disclosure of personal information", the Tribunal was entitled to a significant degree in making such a value judgment to assess for itself what factors would make disclosure "unreasonable": cf Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 373-76.
13 Notwithstanding the factors put forward by the applicant, it was open for the Tribunal to conclude in the light of the contents of the documents that there was no good public purpose to be achieved by the release of the documents and that the matters in [8] above, were, in all the circumstances, appropriate upon which to rest a conclusion as to s 41(1) of the FOI Act.
14 The applicant submitted that there was a failure to balance the legitimate interest, of her as a party to enable her to test whether she had been accorded procedural fairness. I do not agree. Early in its reasons, the Tribunal stated the following in [4]:
At the outset, it may be stated that if the said documents did contain any material which related to the question of whether the Applicant or any member of her family group was or was not entitled to refugee status then the relevant material would have to be placed before the Applicant or particular member of her family for comment.
15 The Tribunal proceeded upon the view or assumption that the contents of the documents did not contain any material which had any relevance to the question whether the applicant, her family or anyone else was or might be entitled to a protection visa. Given the contents of the documents, the Tribunal was entitled to reach that view or work on that assumption.
16 The functions and discretions committed to the RRT under the Migration Act, and to its officers as officers of an agency under the FOI Act, are distinct. That is not to say that the nature of the work of the RRT as a government agency is irrelevant to the exercise of discretion under the FOI Act. But a mandatory obligation which may have accrued under the former regime does not automatically translate into an obligation of disclosure under the latter.
17 The Tribunal was entitled to assume, as it implicitly did, that the RRT would comply with any obligation to give procedural fairness, or to follow any mandatory procedure in the Migration Act. The giving to the applicant of the opportunity of seeing for herself that that was the case was not a consideration which, by law, the Tribunal was required to weigh in making its decision under s 41 of the FOI Act in the circumstances before it.
18 Whether steps were required and were not taken, and whether the RRT has made a mistake in the conduct of the protection visa proceeding (see VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72) are not matters I need to decide. It is unnecessary for me to comment upon the relevance and engagement of VEAL in this case, particularly where at the time of argument a Full Court was, the parties informed me, reserved on the applicant's application for judicial review of the RRT's decision not to grant protection visas to her and her family.
19 On the other hand the applicant also submitted that in looking at the issue of the relevance of the documents to the RRT proceedings to the extent that it did, the Tribunal fell into error. The Tribunal did so in the context that the Applicant had submitted that that was a relevant factor to take into account, a submission also made in this Court. As I have said it was legitimate for the Tribunal to conclude or proceed as it did and in so doing it did not trespass in any way upon the function or role of the RRT.
20 The Tribunal said that the applicant claimed to know the identity of the third party. The Tribunal said this was irrelevant. I agree. I reject the applicant's submission that this claim of knowledge by the applicant required, as a matter of law, some different balancing considerations than were undertaken. As the Tribunal said, disclosure under the FOI Act is unrestricted. In any event, the fact that the applicant asserts that she knows who the third party is does not detract from the approach of the Tribunal otherwise taken and does not require the Tribunal to answer the assertion by way of confirming of denying the applicant's asserted suspicion or knowledge.
21 Further, the statement of the Tribunal that the release of the information would cause distress to the third party "where no good public purpose would be achieved by its release" is, I think, properly read as the result of balancing of the position of the third party and (in all the circumstances, including what the Tribunal said at [4] of its reasons) of the applicant and the evident public purpose (which plainly goes without saying) of the disclosure of documents under the FOI Act. In other words, the Tribunal was clearly referring to no good countervailing public purpose.
22 Thus I do not see any error of law in the approach of the Tribunal.
23 Given the absence of any error of law in relation to the decision based on s 41 of the FOI Act it is strictly unnecessary for me to deal with the argument based on confidentiality in s 45 of the FOI Act. However as the parties presented argument, I will do so. The Tribunal rested its decision upon an earlier Tribunal decision in Re Kamminga and Australian National University (1992) 26 ALD 585 and a dissenting judgment of Gummow J in Corrs Pavey Whiting and Byrnes v Collector of Customs (Vic) (1987) 14 FCR 434. Since those decisions, however, s 45 has been changed and the relevant provision of s 45(1) is as follows:
A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.
24 Therefore, it was necessary for the Tribunal to consider the question whether its disclosure under the Act would found an action by a person for breach of confidence.
25 The Tribunal approached the matter similarly to Gummow J in Corrs Pavey Whiting and Byrne v Collector of Customs (Vic), though in dissent, who stated that under the then form of s 45 of the FOI Act it was necessary for the section to be made out for its disclosure to be actionable at general law. Thus, correctly, the Tribunal ascertained a number of issues: whether the information was able to be identified, whether there was the necessary quality of confidentiality, whether the information had been received by the defendant in such circumstances as to import an obligation of confidence and whether there was actual or threatened misuse of that information.
26 The Tribunal concluded that these matters were satisfied. I do not see any legal error in the approach taken by the Tribunal in the circumstances. Given the nature of the communication and its form, the Department could have been restrained from making the information available publicly. It may be that for the Department to be restrained from disclosing the information to the applicant based on a view the Department might have entertained that its public law duties required it to do so (which was apparently not the position here), there may have been some contestable debate about whether such disclosure would be restrained. However, to the extent that the Department was to threaten to make some or all of these documents available there would be, it seems to me, legitimate grounds to commence proceedings to prevent that, certainly after the third party made plain that party's confidential intentions. It is unnecessary to decide whether such an action even if unsuccessful would suffice to allow the conclusion to be drawn that disclosure of the document would "found an action" for s 45.
27 Given my views as to the operation of s 41 and the absence of any legal error in approach further discussion of s 45 is unnecessary.
28 In all these circumstances the appeal should be dismissed. The applicant requested at the hearing that I allow her an opportunity to address me as to the question of costs. I therefore propose to adjourn the proceeding to 8 August for such argument.