Freedom of Information Act 1982

Australian Government Solicitor

Counsel for the respondent: Mr Mark Lynch

Solicitor for the respondent: Mr David Vaile

1. That the appeal be allowed;

2. That the decision of the Administrative Appeals Tribunal in so

far as it refers to documents numbered 228 and 342 be set aside

and in substitution for that decision it be declared that those

documents are exempt from disclosure pursuant to section 33(1)(b)

of the Freedom of Information Act 1982;

3. That there be no order as to costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BLACK CJ, LOCKHART AND SHEPPARD JJ This is an application by way of appeal by the Commonwealth of Australia from a decision of the Administrative Appeals Tribunal, constituted by the Hon. Justice Rodney N. Purvis (Presidential Member), Ms G. Ettinger (Senior Member), and Professor G.A.R. Johnston (Member), given in Sydney on 16 June 1993. The Tribunal decided, inter alia, that certain documents, identified as documents 228 and 342, should be released to the respondent. In the proceeding before the Tribunal Mrs Hittich sought review of a decision made under the Freedom of Information Act 1982 (the "Act"), not to give access to the respondent to a large number of documents, including the two documents in question. It was claimed by the Commonwealth that the two documents were exempt from disclosure because they fell within both s. 33(1)(a)(iii) and s. 33(1)(b) of the Act. Those sub-sections are in the following terms:

"33. (1) A document is an exempt document if disclosure

of the document under this Act:

(a) would, or could reasonably be expected to,

cause damage to:

(i) ....

(ii) ....

(iii) the international relations of the Commonwealth;

or

(b) would divulge any information or matter communicated

in confidence by or on behalf of a foreign government,

an authority of a foreign government or an

international organisation to the Government of the

Commonwealth, to an authority of the Commonwealth or

to a person receiving the communication on behalf of

the Commonwealth or of an authority of the

Commonwealth."

2. The Tribunal's discussion of the matter in its reasons for decision began with a reference to s. 33 of the Act and a summary of the submissions of the parties. The Tribunal then set out (see paragraphs 56 and 57 of its reasons) criteria which it considered were distilled from the Act and from the submissions of the parties. The criteria were:

"(a) the need for information to be available to the Department

in relation to drugs sought to be approved for use in this

country;

(b) the need for the Department to be kept informed as to

developments in research in other countries and have the

benefit of analysis of adverse drug reactions;

(c) the need to maintain a free flow of information of a highly

technical nature between government or authorised agencies;

(d) the need to ensure that the Australian public is informed of

reasoned and soundly based research, more particularly

referable to safety and efficacy of use of drugs; and

(e) the need to maintain confidentiality in appropriate

circumstances."

3. The Tribunal said that, having in mind those submissions and applying the criteria to each of the documents said to be exempt under s. 33 of the Act, it made the findings in relation to each of the documents as stated in the "Decision" column of Schedule 2 to its reasons. Schedule 2 recorded the Tribunal's decisions with respect to the documents for which exemption had been claimed under s. 33 of the Act. Document 228 was described as "Extract from WHO newsletter" and document 342 was similarly described. In each case the decision was recorded as "Release - public domain newsletter". The reference to "WHO" was of course a reference to the World Health Organisation, an international organisation.

4. Schedule 2 was preceded by a section of the reasons headed "Summary of Decisions". In the "Summary of Decisions" section, the Tribunal observed that the exempt documents and material deleted from released documents fell into one or more categories, including: "Data from overseas regulatory agencies that is not already in the public domain". It seems clear that the Tribunal considered the World Health Organisation to be an overseas regulatory agency and that the category "Data from overseas regulatory agencies that is not already in the public domain" was considered to be directed at "maintaining the Department's good relations with overseas regulatory agencies which are essential to international co-operation in the drug regulation process" (see paragraph 164 of the Tribunal's reasons).

5. It thus appears that the Tribunal was directing its attention primarily to the category of exemption provided for by s. 33(1)(a)(iii) of the Act. It was submitted by counsel for the Commonwealth that the Tribunal was in error in that it applied to the consideration of a claim for exemption under s. 33(1)(a)(iii) a criterion that had no place in that sub-section, namely the criterion in paragraph (d) above: "the need to ensure that the Australian public is informed of reasoned and soundly based research, more particularly referable to safety and efficacy of use of drugs". Counsel submitted that s. 33(1) contained no public interest criterion and she drew the Court's attention to the fact that the section as originally enacted had contained such a criterion, but that at the time the Tribunal made its decision it had been removed by amending legislation.

6. We agree that s. 33(1) does not provide any basis for a public interest criterion extending beyond the terms of the section. Either a document is within the section, in which case it is an exempt document, or it is not.

7. The criteria the Tribunal took into account in reaching its conclusions with respect to s. 33(1)(a)(iii) are, as we read its reasons, also the criteria that the Tribunal used to reach its conclusion with respect to the claim for exemption under s. 33(1)(b) of the Act and we would not wish to be taken as agreeing that the criteria are correct or helpful for the purposes of making a decision under either sub-section.

8. Subject to one other comment, however, it is unnecessary to say more about s. 33(1)(a)(iii) because it was submitted on behalf of the Commonwealth and not contested on behalf of the respondent that, in any event, the two documents were certainly exempt under s. 33(1)(b) and that the evidence allowed for no other conclusion than that. In our opinion this submission is correct. Section 33(1)(b) applies according to its terms to documents of the nature described, and if it does apply then it makes no difference that a document that falls within the description in s. 33(1)(b) might be regarded in some circumstances as being in the public domain. If a document answers the description of a document communicated in confidence on behalf of, in this case, an international organisation to the Government of the Commonwealth, it is exempt from disclosure under the Act.

9. Accordingly, if attention is focussed on s. 33(1)(b) the two documents in issue will be seen to be exempt from disclosure, whatever may have been the position under s. 33(1)(a)(iii). It would seem that the Tribunal in directing its attention primarily to s. 33(1)(a)(iii) did not fully examine the position under s. 33(1)(b) and in this respect it was, in our view, in error. As there was no basis in the evidence for any finding other than that the documents were communicated in confidence by an international organisation to the Government of the Commonwealth, a point of law arises upon which the appeal must succeed.

10. The only comment we would add about s. 33(1)(a)(iii) is that the apparent width of that provision and what really are "the international relations of the Commonwealth" in this context may need careful consideration in a case in which the matter arises directly for decision.

11. It was indicated by counsel for the Commonwealth that in the event of the appeal being allowed, the Commonwealth would not seek costs against the respondent. We would therefore make no order for costs.

12. The order of the court is that the appeal is allowed, the decision of the Tribunal as it refers to documents 228 and 342 is set aside and in substitution for that decision, a declaration is made that those documents are exempt from disclosure pursuant to s. 33(1)(b) of the Act. There is no order as to the applicant's costs of this application.