Australian Information Commissioner v Elstone Pty Limited

Introduction 1 This proceeding involves the referral of two questions of law by the Australian Information Commissioner (the Information Commissioner) to this Court under s 55H of the Freedom of Information Act 1982 (Cth) (FOI Act). 2 Broadly, the referred questions of law relate to the proper construction of provisions in the FOI Act regarding the review function of the Information Commissioner where, in the course of conducting a review of an agency's original decision, the agency varies its decision. In brief, the central issue is whether the review by the Information Commissioner continues to be a review of the original decision or rather becomes a review of the varied or revised decision. 3 A threshold issue of jurisdiction was raised by the Court as to whether the determination of the referred questions involve a "matter" within the meaning of Ch III of the Constitution. 4 Before elaborating upon that issue of jurisdiction, it is desirable to say something more about the background to the proceeding.

Summary of background matters 5 Elstone Pty Ltd (trading as Sydney HeliTours (Sydney HeliTours)) operates a helicopter tours business. 6 On 21 July 2016, it made a freedom of information request (FOI request) to the Civil Aviation Safety Authority (CASA) for access to a copy of a complaint made to CASA against Sydney HeliTours by a third party, and the name or business name of the complainant (whom Sydney HeliTours suspected to be a rival business). On 24 August 2016, CASA identified a two page email as falling within the scope of the FOI request, but CASA decided that it was exempt in full under s 47E(d) (substantial adverse effect on agency's operation exemption) and s 47F (personal privacy exemption) of the FOI Act. 7 On 27 September 2016 (and as an alternative to seeking an internal review of the original decision by CASA), Sydney HeliTours sought a review by the Information Commissioner under s 54L of CASA's decision dated 24 August 2016 (IC review). 8 On 20 February 2017 (and before the IC review was completed), CASA decided to vary its decision dated 24 August 2016 by providing Sydney HeliTours with access to some material in the two page document but redacting those parts of the document which contained "personal identifiers of the author of the document". This variation was said to have been made by CASA under s 55G of the FOI Act. In its letter dated 20 February 2017 to Sydney HeliTours, CASA stated that the Information Commissioner would now deal with the current review application for review of the original decision as if it were a review application for the review of the varied decision. 9 On 24 February 2017, Sydney HeliTours informed the Information Commissioner that it wished "to continue with the IC review process", and that the "only satisfactory outcome will be to receive the document in full". 10 In the IC review, Sydney HeliTours and CASA are review parties (see s 55A of the FOI Act). 11 It appears from the materials before the Court that an issue then arose within the Office of the Australian Information Commissioner as to whether or not CASA's decision dated 20 February 2017 constituted "a revised decision" for the purpose of s 55G(1) of the FOI Act. As noted above, CASA's view, as expressed in its letter dated 20 February 2017, was that the IC review now related to the varied or revised decision. There is nothing in the materials before the Court to indicate what view, if any, Sydney HeliTours held in respect of that matter. 12 It may be inferred, however, that the Information Commissioner was concerned that the Administrative Appeals Tribunal (AAT) had taken a different view of the proper construction of s 55G of the FOI Act. In Duncan and Secretary, Department of Human Services (Freedom of Information) [2016] AATA 152 and Australian Fisheries Management Authority and Whish-Wilson (Freedom of Information) [2017] AATA 375, the AAT had construed s 55G such that an agency decision on an FOI request cannot be varied under that provision unless the revised decision gives access to at least one document in full in accordance with the FOI applicant's request, or at least to every part of the document requested by the FOI applicant. Accordingly, under this construction, an agency cannot vary its original decision under s 55G by giving the FOI applicant access to more information that is not the entire document or the entire material requested, because the revised decision would be an "access refusal decision" as defined in s 53A of the FOI Act. 13 In contrast, the Information Commissioner had taken the view in decisions such as Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2016] AICmr 25 that, if an agency provides any part of any document to the FOI applicant during an IC review, and the variation favours the FOI applicant such that he or she is provided with more access to the document than was originally provided, this constitutes "giving access to a document in accordance with the request" for the purposes of s 55G(1) and is accordingly a "revised decision". 14 It may be inferred that this divergence of opinion between the AAT and the Information Commissioner provided the foundation for the following two questions of law which were referred to the Court by the Information Commissioner on his own initiative (for ease of expression the questions have been slightly reworded but not in any material way): (1) Is CASA's decision dated 20 February 2017 to give Sydney HeliTours access to further parts of the document under review, a "revised decision" within the meaning of s 55G of the FOI Act? (2) Is CASA's decision dated 20 February 2017 the decision under review pursuant to s 55G(2)(b) of the FOI Act?

Summary of legislative provisions 15 Some relevant provisions of the FOI Act should be summarised. 16 The FOI Act provides for a right of access to certain documents. That right does not apply to an "exempt document" as defined in s 4. 17 As noted above, Sydney HeliTours sought access to a copy of the third party complaint made against it to CASA. In its decision dated 24 August 2016, CASA decided that the two page email was exempt in full under both ss 47E(d) and 47F. It is unnecessary to set out those provisions. 18 Part VII of the FOI Act deals with review of decisions by the Information Commissioner. There is a guide to the Part in s 54F. 19 Under s 54L, an application may be made to the Information Commissioner for a review of a decision of a kind specified in s 54L(2). Relevantly, this includes "an access refusal decision", which is relevantly defined in s 53A as follows: 53A What is an access refusal decision? An access refusal decision is any of the following decisions: (a) a decision refusing to give access to a document in accordance with a request; (b) a decision giving access to a document but not giving, in accordance with the request, access to all documents to which the request relates; (c)-(h) … Note: If a decision is not made on a request under section 15 within the time required by that section, a decision is taken to have been made to refuse to give access to a document in accordance with the request (see section 15AC). 20 As previously mentioned, during the course of the IC review of CASA's decision dated 24 August 2016, CASA decided on 20 February 2017 to vary its earlier decision by providing access to some material in the two page email while at the same time redacting those parts of the document which contained "personal identifiers" of the complainant. The power to make such a variation was conferred by s 55G of the FOI Act, which provided: 55G Procedure in IC review - revocation or variation of access refusal decision (1) An agency or Minister may vary (or set aside and substitute) an access refusal decision (the original decision) in relation to a request or an application under section 48 at any time during an IC review of the access refusal decision if the variation or substitution (the revised decision) would have an effect of: (a) giving access to a document in accordance with the request; or (b) relieving the IC review applicant from liability to pay a charge; or (c) requiring a record of personal information to be amended or annotated in accordance with the application. Note: When making the revised decision, a consultation requirement under section 26A (documents affecting Commonwealth State relations etc.), 27 (business documents) or 27A (documents affecting personal privacy) may apply. (2) If an agency or Minister varies (or sets aside and substitutes) an access refusal decision under subsection (1): (a) the agency or Minister must, in writing, notify the Information Commissioner as soon as practicable after the agency or Minister makes the variation or substitution; and (b) the Information Commissioner must deal with the IC review application for review of the original decision as if it were an IC review application for the review of the varied or substituted decision, subject otherwise to this Part. 21 Section 55H empowered the Information Commissioner to refer a question of law, arising in an IC review (as defined in s 54G), to this Court for decision. It provided: 55H Procedure in IC review - reference of questions of law to Federal Court of Australia (1) The Information Commissioner may, at any time during an IC review, refer a question of law arising in an IC review to the Federal Court of Australia for decision. (2) The Information Commissioner may refer the question of law: (a) on the application of a review party; or (b) on the Information Commissioner's initiative. (3) The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it. (4) The jurisdiction of the Federal Court of Australia may be exercised by a single judge of the Court. (5) If a question of law is referred, the Information Commissioner must not, for the purposes of the IC review: (a) give a decision to which the question is relevant before the Federal Court of Australia makes a decision in relation to the reference; or (b) proceed in a manner, or make a decision, that is inconsistent with the opinion of the Federal Court of Australia on the question.

Some procedural issues 22 The proceeding was commenced by an originating application filed by the Information Commissioner on 17 May 2017. The Information Commissioner referred the two questions of law which are summarised in [14] above. The Information Commissioner was named in the initial originating application as the applicant. There was no named respondent. 23 At the first case management hearing, the Court raised the issue that there was no active contradictor. The Information Commissioner submitted that none was required but added that, if the Court was of a different view, the Information Commissioner would arrange for, and fund, solicitors and counsel to act as amicus curiae. This subsequently occurred. 24 In addition, in accordance with directions made by the Court on 20 June 2017, Sydney HeliTours and CASA were formally advised of the proceeding. Subsequently, they were joined by the Information Commissioner as first and second respondent respectively in the Court proceeding. Both respondents then filed submitting notices. CASA indicated by an email dated 4 December 2017 that it "supports the position taken by the OAIC on the application, but will not be appearing". By an email dated 5 December 2017, Sydney HeliTours' solicitor notified the Information Commissioner that its client did not intend to take any active step in the proceedings and would be filing a submitting appearance. 25 Notices dated 27 July 2017 were issued under s 78B of the Judiciary Act 1903 (Cth). No Attorney-General intervened in the proceedings. 26 The Information Commissioner subsequently filed an amended originating application dated 12 December 2017. Sydney HeliTours and CASA were formally named as the first and second respondent respectively. After setting out the two questions of law in substantially similar terms to those which appeared in the original originating application and repeating some of the facts in support, the amended application set out the following additional facts: 6 A question arises within the IC review as to whether CASA's decision of 20 February 2017, to provide Sydney HeliTours with access to further material in a document, constitutes a revised decision for the purposes of s 55G(1) of the FOI Act. 7 In various recent decisions, the Administrative Appeals Tribunal and the Applicant have adopted divergent constructions of s 55G of the FOI Act. 8 The Administrative Appeals Tribunal has construed s 55G(1) of the FOI Act such that a decision cannot be varied under s 55G unless the revised decision gives access to at least one document in full in accordance with the applicant's request, or at least to every part of the document requested by the applicant. Accordingly, an agency cannot vary its original decision under s 55G of the FOI Act by giving the applicant access to more information that is not the entire document or the entire material requested, because the revised decision would be an access refusal decision. 9 The Applicant has construed s 55G(1) of the FOI Act such that, if an agency provides any part of any document to the applicant during an IC review, and the variation favours the applicant so that the applicant is provided with more access to the document than was originally provided, this constitutes "giving access to a document in accordance with the request" for the purposes of s 55G(1) and is accordingly a "revised decision".

Is there a matter? 27 The jurisdiction of the High Court and other federal courts is defined in Ch III of the Constitution. A key concept in defining judicial power is the word "matter", which appears in ss 73, 74, 75, 76, 77 and 78 of the Constitution. The requirement that there be a "matter" prevents the High Court and other federal courts from, for example, providing advisory opinions or exercising non-judicial power. 28 There is much case law on the meaning of the word "matter", some of which will be mentioned below. Broadly speaking, there was substantial agreement between the Information Commissioner and amicus curiae regarding the content of the relevant legal principles. That is not to say, however, that the task of determining whether or not there is a "matter" is a straightforward exercise. On the contrary, as Professor James Stellios has observed, identifying "what judicial power is has always been an elusive task" (see The Federal Judicature, LexisNexis Butterworths, 2010, at [4.1]). Professor Stellios added that the task involves various layers of complexity and, adopting Windeyer J's observations in The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 394, stated that the "concept seems…to defy, perhaps it were better to say transcend, purely abstract conceptual analysis". As Dixon CJ and McTiernan J commented in R v Davison (1954) 90 CLR 353 at 366, although there have been many attempts to define judicial power, "it has never been found possible to frame a definition that is at once exclusive and exhaustive". 29 It is apposite to also refer to Mr Henry Burmester QC's view (with which I respectfully agree) that: The meaning of 'matter' and hence the nature of controversies that can be the subject of federal jurisdiction cannot be divorced from the circumstances of a particular case. The facts of a case will often dictate the particular limitation invoked in order to deny jurisdiction or to decline its exercise. (See "Limitations on Federal Adjudication" in The Australian Federal Judicial System, Brian Opeskin and Fiona Wheeler (eds), Melbourne University Press, 2000, at p 230). 30 For reasons which will shortly emerge, Mr Burmester QC's observations, and their central focus on the importance of paying close attention to the circumstances of a particular case in assessing the nature of a controversy or dispute, have great significance in the determination of the threshold issue as to whether there is a "matter" in the present proceeding. 31 As noted above, the meaning of "matter" has been considered in many cases, including In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-267 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 (Mellifont) at 302-305 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 at [45]-[46] per Gaudron J and at [183] per Hayne J; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 (McBain) at [2]-[7] per Gleeson CJ; CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339 (Blakeley) and Re Culleton [2017] HCA 3; 91 ALJR 302 at [26] per Gageler J. 32 It is sufficient for present purposes to refer to the following passages from Blakeley at [26], [27] and [29] per French CJ, Kiefel, Bell and Keane JJ as stating the relevant principles (footnotes omitted and emphasis added): 26 It is a necessary condition of federal jurisdiction, in the sense of authority to exercise the judicial power of the Commonwealth, that the matter in which the jurisdiction of the court is invoked is "capable of judicial determination" or "justiciable". That concept of justiciability does not embrace a purely advisory opinion. In holding invalid Commonwealth legislation purporting to confer an advisory jurisdiction this Court in In re Judiciary and Navigation Acts said that: "there can be no matter within the meaning of [s 76] unless there is some immediate right, duty or liability to be established by the determination of the Court." An entitlement to claim declaratory relief may be created by statute even though the subject matter of the relief is not an immediate right, duty or liability to be established. The declaration itself may assume that description where it concerns a real controversy susceptible of judicial determination. Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd may be cited as an example. Any member of the public was given standing by s 163A of the Trade Practices Act 1974 (Cth) to seek a declaration in relation to the operation or effect of any provision of that Act other than certain excluded provisions. Gleeson CJ and McHugh J said: "The fact that no private right, or special interest, of the applicant is at stake in the present case does not deny to its disputed assertion that the respondent has violated s 52 of the Act and its claim for remedies of the kind provided by the Act the character of a justiciable controversy." 27 The subject matter and justiciability requirements were summarised by Burmester: "'Matter', therefore, has two elements: the subject matter itself as defined by reference to the heads of jurisdiction set out in Chapter III, and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy." The constitutional requirements for the existence of a matter were not in issue in this appeal. What was in issue was the existence of a justiciable controversy between the Akron liquidators and CGU. … 29 It is a particular application of that general statement to say that a matter will arise under a federal law if it involves a claim at common law or equity or under a law of a State where the claim is "in respect of a right or property which is the creation of federal law". If the source of a defence to a claim at common law or equity or under a law of a State is a law of the Commonwealth, then on that account also the matter may be said to arise under federal law. The existence of such a claim in a proceeding will meet the subject matter condition necessary to enliven the federal jurisdiction invested in a court of a State pursuant to s 77(iii) of the Constitution, read with s 76(ii). However, before federal jurisdiction can be enlivened, the claims in the proceeding must not only satisfy the subject matter requirements, but involve a justiciable controversy or otherwise fall within an established category of judicial power. 33 In footnote 38 in Blakeley as reported in the Commonwealth Law Reports, examples are given of particular proceedings which are recognised as falling within an established category of judicial power, including: … the long-standing power of courts to give directions to trustees, administrators and executors and to determine questions arising in the course of company winding up processes or the traditional powers of courts to make orders relating to the maintenance and guardianship of infants, as outlined in R v Davison (1954) 90 CLR 353 at 368-369 per Dixon CJ and McTiernan J. 34 Dr Higgins SC (who appeared with Ms Oreb for the Information Commissioner) submitted that both the limbs in the final sentence in [29] of Blakeley were satisfied here. As to the first limb, Dr Higgins acknowledged that if the subject matter of the referral was simply to resolve an abstract question as to the proper construction of s 55G, that would involve an advisory opinion. She submitted, however, that the question needed to be approached more broadly and take into account the context of the referral, including the fact that Sydney HeliTours was dissatisfied with CASA's original decision, as well as its revised decision, and wished to continue with the IC review. Dr Higgins submitted that the issue of the proper construction of s 55G only arises in respect of that factual substratum and that the "controversy between CASA and Sydney Helitours (sic) as to that to which they're entitled to access under the FOI Act cannot be artificially severed from the question of the proper construction of section 55G in the context of the factual substratum before [the Court]". Dr Higgins submitted that there was a "real controversy" in the IC review as to what information should be able to be accessed by Sydney HeliTours and that this involved a controversy between CASA and Sydney HeliTours. Dr Higgins referred to Perry J's decision in Federal Commissioner of Taxation v Warner [2015] FCA 659; 244 FCR 479 (Warner) as well as the Full Court's decision in Australian Competition and Consumer Commissioner v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378 (MSY). 35 As to the second limb, Dr Higgins referred to the outline of written submissions of amicus curiae (Mr Emmett of counsel), in support of the Information Commissioner's submission that the Court should find that the procedure set out in s 55H of the FOI Act should be viewed as another established category in addition to those set out in footnote 38 in Blakeley (see [33] above). 36 Mr Emmett submitted that there was no "matter" giving rise to federal jurisdiction in the present proceeding because there is not, and never has been, a matter that includes a controversy between the parties to the proceeding concerning the proper construction of s 55G of the FOI Act. He added, however, that there is "a powerful argument to the contrary", referring to the submissions advanced on behalf of the Information Commissioner. 37 In my opinion, there is no "matter" in this proceeding. I do not accept the Information Commissioner's submission that there is a "judiciable controversy" within the meaning of the authorities. The referred questions reflect the existence of a difference of opinion between the Information Commissioner and the AAT as to the proper construction of s 55G, but they do not involve a controversy or dispute between the Information Commissioner and either of the respondents in relation to the subject matter of those questions. Without doubt, there is a controversy or dispute between the first and second respondents. That controversy relates to the extent to which CASA is obliged to provide Sydney HeliTours with access to the entirety of the two page document. But that is not the controversy which is the subject of the two referred questions. 38 As noted above, there is no dispute or controversy between CASA and the Information Commissioner concerning the proper construction of s 55G. And it appears that Sydney HeliTours is simply indifferent to the question of the proper construction of s 55G. Its interest is in obtaining access to a full copy of that document, and not merely a redacted copy as provided by CASA under its revised decision. 39 It may be accepted that the Information Commissioner has an interest himself in obtaining an authoritative ruling as to whether his construction of s 55G is correct, as opposed to the views expressed by the AAT. It may also be accepted that the Information Commissioner's interest arises in the context of his obligation to finalise the IC review as initiated by Sydney HeliTours. But this interest of the Information Commissioner, as reflected in the two referred questions of law, does not involve any dispute or controversy between the parties in this proceeding. There is no justiciable controversy which gives rise to a matter for the purposes of Ch III of the Constitution. 40 In my view, the present proceeding is distinguishable from cases such as MSY and Warner. In MSY, the Full Court held that declaratory relief need not be refused simply because of the absence of a proper contradictor. At the trial, the parties to the proceeding had agreed facts and relief in respect of contraventions of the then Trade Practices Act 1974 (Cth). The agreed relief included the imposition of penalties, the making of declarations, the granting of injunctions, the undertaking of a compliance programme and the publication of corrective advertising. The trial judge made orders in the terms proposed, save in respect of declaratory relief, which his Honour declined to grant in the absence of a contradictor. Unlike the position here, the parties to the proceeding had effectively reached a settlement. 41 In Warner, notices under s 264 of the Income Tax Assessment Act 1936 (Cth) and s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth) had been served on liquidators, who refused to comply with the notices unless ordered to do so, citing s 486 of the Corporations Act 2001 (Cth). The Commissioner of Taxation sought a declaration that the liquidators were obliged to comply with the notices. The liquidators (and related companies), filed submitting appearances. Amicus curiae was appointed to make submissions as a contradictor. Justice Perry held that there was a "matter" for the purposes of Ch III of the Constitution. Unlike the position here, the declaratory relief sought by the Commissioner of Taxation related to the dispute or controversy regarding the liquidators' refusal to comply with the notices. 42 Secondly, I reject the Information Commissioner's submission that the second limb in [29] of Blakeley also applies here. It was submitted that the Court should view s 55H as providing a procedure akin to that in Mellifont and that it is typical for the courts to determine questions of law. 43 Mellifont involved s 669A of the Criminal Code (Qld), which provided that the Attorney-General may refer any point of law that had arisen at a criminal trial for the consideration and opinion of the Court of Criminal Appeal even if inter alia the accused has been discharged by the Crown in relation to the charge. The Attorney-General used this procedure in Mellifont to refer to the Court of Criminal Appeal a point of law notwithstanding that the accused had been discharged. The High Court held (Brennan J dissenting) that the procedures did involve a "matter", being the correctness of the trial judge's rulings on particular issues. As the majority noted at 305, "the decision on the reference was made with respect to a 'matter' which was the subject-matter of the legal proceedings at first instance and was not divorced from the ordinary administration of the law". 44 Importantly, after referring to O'Toole v Charles David Pty Ltd (1990) 171 CLR 232, the majority explained at 303 that answers given by the full court of a court to questions referred to it in the course of proceedings in a "matter" pending in that court do not involve an advisory opinion, whether or not those answers, of themselves, determine the rights of the parties. The majority emphasised that such answers "are given as an integral part of the process of determining the rights and obligations of the parties which are at stake in the proceedings in which the questions are reserved". Their Honours added at 303 that the giving of answers in such a case "is an exercise of judicial power because the seeking and the giving of the answers constitutes an important and influential, if not decisive, step in the judicial determination of the rights and liabilities in issue in the litigation". 45 After noting that the "fundamental point" is that the referral procedure under s 669A(2) enabled the Court of Criminal Appeal to correct an error of law at the trial, the majority in Mellifont emphasised at 305 that it was "that characteristic of the proceedings that stamps them as an exercise of judicial power and the decision as a judgment or order within the meaning of s 73 [of the Constitution]". That is far removed from the circumstances here where, as explained above, there is no relevant dispute or controversy between the parties as to the subject matter of the referred questions. Providing answers to the referred questions of law in the present proceeding would not constitute an influential or decisive step in determining the real issues in dispute between Sydney HeliTours and CASA because those issues, which relate to the scope and application of relevant exemptions in the FOI Act, are not raised at all by the referred questions. 46 It is not to be doubted that there are established categories of judicial power that do not require a justiciable controversy to enliven them, such as those identified in footnote 38 in Blakeley (and see also McBain at [4] per Gleeson CJ). In my view, however, the present proceeding is distinguishable from those other kinds of proceeding. The statutory jurisdiction of the Court under s 55H of the FOI Act to determine a referred question of law presupposes a controversy or dispute as to the question which is referred. I accept Mr Emmett's submission that the Court is not being asked to quell the broader controversy as to whether Sydney HeliTours should have access to the unredacted document. 47 As I have emphasised above, the absence of a "matter" in the present proceeding turns very much on the particular circumstances of this case. Nothing that I have said should be regarded as casting any doubt on the Constitutional validity of s 55H, nor the availability of that procedure in an appropriate case where there is a "matter".

Conclusion 48 For these reasons, the amended originating application should be dismissed because there is no "matter" for the purposes of Ch III of the Constitution. It is therefore both unnecessary and inappropriate for the Court to express any view concerning the substance of the two referred questions. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.