REASONS FOR JUDGMENT
BUCHANAN J:
14 These proceedings challenge a decision of the Administrative Appeals Tribunal ('the AAT') refusing a request by the appellant for access to the report of an interdepartmental working party concerned with the possible introduction of criminal sanctions for serious cartel conduct. The request was made under the Freedom of Information Act 1982 (Cth) ('the FOI Act'). The report included an executive summary. For reasons which will become apparent it will be necessary to deal with the executive summary in its own right.
15 According to evidence accepted by the AAT, the working party report and its executive summary came into existence in the following circumstances:
· On 15 October 2001 the then Prime Minister, Mr Howard, announced that there would be an independent review of the competition provisions of the Trade Practices Act 1974 (Cth) and their administration. In May 2002, the Federal Treasurer, Mr Costello, appointed a committee, known as the Dawson Committee (the committee), to undertake the review. The committee reported to the government in January 2003 and its report was released in April 2003.
· The committee recommended that criminal sanctions be introduced for serious cartel conduct, subject to solutions being found to various problems it identified. Those problems included developing a satisfactory definition of 'serious cartel behaviour' and implementing an effective leniency or immunity policy in the Australian context.
· At a Cabinet meeting on 15 April 2003 Cabinet agreed that a working group would consider those issues.
· By an exchange of correspondence in July and September 2003 the Prime Minister and the Treasurer agreed that the working party would report to the Treasurer by the end of 2003 and that the Treasurer would bring 'the issue' to Cabinet early in the new year.
· In October 2003, the Treasurer publicly announced the terms of reference of an official working party to consider the issues identified by the committee. The working party comprised officials from the Treasury Department, the Attorney-General's Department, the Australian Competition and Consumer Commission ('the ACCC') and the Commonwealth Director of Public Prosecutions.
· The working party submitted its report in April 2004. The report included an executive summary.
· The executive summary of the report was attached to a Cabinet submission that was presented to Cabinet for its consideration on 21 June 2004.
16 The request for access to the report of the working party arose from a wider request for documents on 13 March 2007 which was dealt with in part by the ACCC and in part by the Treasury. The request for a copy of the working party report was denied by Treasury on 12 April 2007, except as to three pages which revealed the working party's terms of reference. Those terms of reference had been made public in October 2003.
17 The appellant sought an internal review on 9 May 2007. The decision of the reviewing officer was made on 7 June 2007. As a result of that review further parts of the working party report which were considered to contain 'purely factual material' were made available. However, a substantial part of the report remained withheld. Release of the document with some material deleted was authorised by s 22 of the FOI Act which permitted deletion of material which was either irrelevant to the FOI request or was in an exempt category. In the present case material was deleted because it was regarded as falling into an exempt category established by s 36 of the FOI Act.
18 Section 36 of the FOI Act, so far as immediately relevant, provides as follows:
36(1) 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
(b) would be contrary to the public interest.
19 The following is an extract from the decision of the reviewing officer:
Disclosure of the entire Working Party report
Your letter requests an internal review of the refusal to release the entire Working Party report.
Upon careful consideration of the contents of the Working Party report, I consider that the document contains material that if released, would disclose matters in the nature of, or relating to, opinions, advice and recommendations prepared for the purpose of the deliberative processes involved in the functions of the Government. The Working Party was established by the Government for the purpose of considering a workable definition of a proposed criminal cartel offence, and an appropriate method of combining a clear and certain leniency policy with the criminal regime. The document contains opinions, advice and recommendations relating to consideration of these issues. The Working Party was part of a whole of government analysis of the issues. Ultimately the issues that were debated by the Working Party were referred to Cabinet for consideration and may also be seen as a part of the deliberative processes of the Government in this light. In other words, disclosure of the report in its entirety would reveal advice prepared for the Government regarding a workable definition of cartel behaviour, the framing of a criminal offence, and the operation of a leniency policy for cartel conduct.
I am also required to consider whether disclosure of the document would be contrary to the public interest. There is a public interest in understanding the reasons for Government decisions. There is also a public interest in ensuring the public has access to information in the possession of Government, subject to protecting essential public and private interests. However, in this case the disclosure of the document would undermine the important convention that the deliberations of Cabinet be kept confidential. This convention is fundamental to the proper functioning of the parliamentary process. I also strongly consider that disclosure of the report would have the effect of reducing the likelihood that such a written report would be produced by officials in the future, which would deprive the Government of the sort of deliberative analysis contained in the report. As discussed, ultimately the matters deliberated in this report were provided to Cabinet. It is the nature of the work of working parties whose participants are drawn from multiple agencies that it will be subject to review, constructive criticism and revision. The effect of this is that the working party report may not reflect the government's final position. This disjuncture may in my view discourage working parties from generating ideas and options that may not ultimately be approved if the participants believe, through the release of this document, that their deliberations will be publicly accessible. Finally, the reasons for the Government's decision to criminalise serious cartel conduct are clearly enunciated in the Treasurer's press release dated 2 February 2005. Disclosure of the report would not add to the public's understanding of the Government's decision in a significant enough manner to justify the potential to breach cabinet confidentiality and to inhibit cooperative policy-making processes.
Partial release of sections of the report
Section 36(5) of the FOI Act states that the exemption does not apply to a document by reason only of purely factual material contained in the document.
Having reviewed the decision, I consider that some sections of the report can be released on the ground that they contain purely factual material that do not reveal the deliberative processes of the Government in considering the appropriate development of the criminal cartel policy legislation and policy.
In addition, some sections of the report are sourced from publicly available information and do not contain assessments by officials, draw conclusions, or make recommendations. Accordingly, I have released these sections of the report.
Therefore, I consider that the pages of the report details in the revised Schedule (attached) should only be exempt in part.
I therefore vary the decision of Mr French in relation to material in the report which I consider to be purely factual in nature but affirm Mr French's decision in relation to the rest of the report, which I consider to be exempt under section 36.
(Emphasis added)
20 Three matters should be noted arising from the passages I have emphasised. First, there was no separate mention of the executive summary contained within the report. The focus of the reviewing office's attention was upon the character and content of the report as a whole. Secondly, although it was of substantial importance in the reasons given by the reviewing officer that the matters dealt with in the report were the subject of Cabinet consideration, there was no suggestion of the kind which was, as will be seen, later made that the working party report, or any part of it, was brought into existence for the purpose of direct consideration by Cabinet. Rather, it 'was part of a whole of Government analysis of the issues'. Those 'issues' were 'ultimately' referred to Cabinet and 'ultimately' the matters 'deliberated' in the report were brought before Cabinet. On that basis the reviewing officer concluded that Cabinet confidentiality would be breached if the whole report was released. Thirdly, any assumption that the working party report was necessarily predictive of the government's final position was refuted. None of that reasoning bound the AAT but it is a useful background against which to assess subsequent events.
21 On 26 June 2007 the appellant applied to the AAT for review of the decision of the reviewing officer. Section 58(1) of the FOI Act empowered the AAT to review the decision and decide any matter that could have been decided by the reviewing officer. Section 64 of the FOI Act permitted the AAT to examine the working party report for itself as the reviewing officer had obviously done. However, in the present case, the AAT did not examine the working party report for itself. Instead, it relied upon the evidence of a witness (Ms Myra Croke, Assistant Secretary, Cabinet Secretariat, Department of the Prime Minister and Cabinet) who had read the report.
22 Before the AAT the respondent claimed that the executive summary in the report was an exempt document in its own right. It relied on s 34(1)(a) of the FOI Act. Section 34(1)(a) provides:
34(1) A document is an exempt document if it is:
(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; …
(Emphasis added)
23 The whole report was not placed before Cabinet but the executive summary was, as earlier indicated, attached to a submission to a Cabinet meeting on 21 June 2004. The respondent relied upon the evidence from Ms Croke, which I shall discuss in greater detail, to argue firstly that the AAT should conclude that the executive summary had been 'brought into existence for the purpose of submission for consideration by the Cabinet' as required by s 34(1)(a). The second limb of the argument, as recorded by the AAT, then suggested that release of the whole report would breach Cabinet confidentiality because it would 'disclose the content of material prepared to support a recommendation to Cabinet and formulated for the purpose of assisting Cabinet deliberations and a Cabinet decision', namely the executive summary.
24 The AAT accepted those arguments. It concluded that the executive summary of the report was exempt under s 34(1)(a) of the FOI Act. As part of that conclusion it accepted that the executive summary was brought into existence for the purpose of being placed before Cabinet for its consideration. The AAT also decided that disclosure of the whole working party report would be contrary to the public interest under s 36(1)(a) of the FOI Act because disclosure of it would breach Cabinet confidentiality and erode the protection given to the executive summary by s 34. That was a more limited finding than was made by the reviewing officer. The AAT's finding about public interest proceeded from its earlier conclusion that the executive summary was an exempt document in its own right.
25 Ms Croke's evidence gave some support to the general thrust of the respondent's arguments as recorded by the AAT. However, she did not express any opinion (for opinions they were; she did not say that she had direct knowledge) that either the executive summary or the report as a whole were prepared to 'support a recommendation'. Rather, she opined in a number of places that the report would 'support a submission to the Cabinet'. The distinction is, to my mind, an important one. The reviewing officer, for example, was clearly of the view that the report should not be regarded as necessarily reflecting the government's final position. Rather, reports of this kind provided 'ideas and options that may not ultimately be approved'. Ms Croke also spoke of the Minister 'recommending which matters should be progressed' from amongst the options considered, and proposals formulated, by a working party.
26 Ms Croke's evidence assumed that knowledge of the character and purpose of an executive summary would be possessed by the AAT. That assumption was justified in my view. I think the character and normal function of an executive summary in a written report can be taken to be a matter of common or ordinary knowledge (see eg. s 144 of the Evidence Act 1995 (Cth)). Ms Croke's evidence did not suggest that the executive summary in the present case did not fulfil the usual function of providing a summary of at least the principal conclusions of the report. Had it been intended to suggest that the executive summary in the present case was not intended to fulfil such a function, whatever other use it may have been put to, that would, in my view, have needed to be clearly and specifically established. As I have said, Ms Croke's evidence assumed knowledge and appreciation of the function of an executive summary in a report. Her evidence, properly understood, was directed to the contention that, in the present case, it was brought into existence for an additional purpose or use separate from its function as part of the report.
27 Knowledge of the function of an executive summary was also assumed in documents attached to Ms Croke's affidavit. Two kinds of executive summary need to be distinguished - an executive summary prepared for a minister or by a department as part of a Cabinet submission and an executive summary of a report or discussion paper which might be attached to a Cabinet submission, as it was in the present case, to convey the substance of the report or discussion paper. The Cabinet Handbook, 5th edition March 2004, a copy of which Ms Croke attached to her affidavit, provided:
Preparation of Cabinet submissions and memoranda
4.5 Cabinet submissions and memoranda are strictly limited to 10 pages, including the cover sheet, recommendations/conclusions, body and any media release, with the co-ordination comments contained in an additional attachment. Other attachments may be added but must not be attached to the submission or memorandum (NB special arrangements apply to Budget submissions and memoranda).
4.6 The cover sheet, which contains the minister's or department's executive summary, should enable ministers to grasp the essential issues on which they are being asked to make a decision:
(a) Purpose - the statement of purpose must state why Cabinet needs to consider the proposal and indicate any timing constrained (eg proposal needs to be considered prior to a Premiers' Conference); and
(b) Key Issues - this section must focus on the critical matters for decision, determination, political sensitivities or possible criticisms; it must not be just a summary of the text that follows.
Recommendations and conclusions should be as stand-alone as possible.
4.7 The Drafter's Guide sets out in detail for departmental policy advisers and Cabinet liaison officers the process for the preparation of Cabinet submissions and memoranda.
28 The Drafter's Guide, 2nd edition December 2006, which was also attached to Ms Croke's affidavit, provided:
Page limits
33. There are strict requirements on page limits. Submissions and memoranda have internal page limits: the summary is limited to two pages, followed by recommendations/conclusions (which should focus on matters which require agreement), a media release (generally one page) and coordination comments (which are to be as short as possible).
34. The Attachment template for a submission or memorandum is limited to a maximum of 50 pages in total, including a limit of eight pages for the supporting argument. Other than attachments for new policy proposals, which are essential for proposals with financial implications, information may be attached only if it is essential to the key decisions sought. In most cases, an executive summary of relevant reports or discussion papers is more appropriate for the Cabinet's consideration than the full text of lengthy documents.
29 Those instructions confirm the commonly understood function of an executive summary. They also emphasise the need for rigour and discrimination at the time a Cabinet submission is prepared. The respondent's contention that the executive summary in the present case was intended, in advance of or at the time of its creation, to be placed before Cabinet before the government had even received the report which it summarised deserved to be met with some reserve, as the appellant contended.
30 Section 61 of the FOI Act imposed the onus on the respondent to either justify the decision of the reviewing officer or persuade the AAT to give a decision adverse to the appellant. The reviewing officer relied only upon s 36 of the FOI Act. He did not rely on s 34. The respondent, therefore, bore the onus of establishing, for the first time, that the executive summary was an exempt document in its own right. It bore the onus of establishing that it was brought into existence for the particular purpose contemplated by s 34(1)(a). Correspondingly, the AAT was bound by s 61 of the FOI Act to evaluate the respondent's contention upon a proper approach to the question of proof. That approach could accommodate the circumstance that the AAT is not bound by the rules of evidence (s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act')) but it could not substitute, for the necessity of making out a case on the preponderance of probabilities, some lesser test (see Jorgensen v Australian Securities and Investments Commission (2004) 208 ALR 73 at [65] per Weinberg J; see also in relation to an analogous provision the apparent approval by Foster J of statements by the AAT in Federal Commissioner of Taxation v Cainero (1988) 88 ATC 4427 at 4433 and per Deane J in Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614 at 626).
31 No suggestion was made on the appeal that s 34 required the identification of a sole, or even a dominant, purpose before it was engaged. The author of 'Freedom of Information and Privacy in Australia' (Paterson, M; Lexis Nexis Butterworths 2005) expresses the view, with respect to a provision similar to s 34 of the FOI Act (s 28(1)(b) of the Freedom of Information Act 1982 (Vic)), at [8.43] that '[t]he purpose which is referred to in these provisions does not have to be the sole purpose for which the document is created'. I will accept that is so. No submission to the contrary was made. Neither did the appellant in the present case, or apparently before the AAT, submit that purpose suggested by the respondent had to be causative in the sense that, but for its presence the executive summary would not have been brought into existence (cf the remarks in the Victorian Court of Appeal by Buchanan JA, with whom Ashley JA and Smith AJA agreed, in Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 ('Dalla-Riva') at [13]). The AAT did not address the possibility that such a test governed its deliberations. It clearly did not apply such a test. Such a test would have been difficult to satisfy in the present case given the intrinsic character of an executive summary, the fact that it was not an independent document but was a part of the whole report, which had not been placed before Cabinet, and that no such causative purpose within the terms of s 34 could be claimed for the whole report. However, the appellant did not suggest, relying upon the remarks in Dalla-Riva, that any question of law arose in the present appeal about the test to be applied or that the AAT had, in that respect, applied the wrong test. It is therefore not necessary, in this case at least, to give further consideration to Dalla-Riva, where it is apparent also that the point was not fully argued.
32 The appellant argued principally, so far as s 34 was concerned, that the AAT distracted itself from examination of the real issues arising under s 34 by dealing with other matters, some relating to the application of s 36 and some dealing with an examination of public interest immunity, none of which were relevant to its task concerning the proper construction and application of s 34. In my view these arguments should not be accepted. A fair reading of the decision of the AAT shows that it understood, and addressed itself to, the particular requirements of s 34.
33 However, it is convenient at this point to identify two questions which have exercised my mind considerably about the AAT's findings on the question of 'purpose'. The first question is whether there was any evidence capable of supporting the conclusion of the AAT about the purpose for which the executive summary of the report was brought into existence and, as a related issue, whether there was any evidence capable of supporting a conclusion that a purpose or intention of placing the executive summary, as such, before the Cabinet for its consideration could reasonably be inferred to have been formulated at or before the creation of the executive summary rather than later.
34 As no argument was advanced that s 34 contemplates a sole purpose, a dominant purpose or a purpose which is causative in the sense suggested in Dalla-Riva, the fact that a purpose of the executive summary was to provide a convenient synthesis in the body of the report itself does not necessarily deny that it may also have been brought into existence with the purpose that it be considered by Cabinet in its own right. Nevertheless, the proposition that use of a common report writing technique (of providing a synthesis within the report of its principal features) was accompanied, in the present case, by the specific purpose upon which s 34(1)(a) of the FOI Act operated, was far from self-evident and had to be established to the requisite standard.
35 The second question arises from the last observation. As earlier indicated, the respondent bore the onus. The AAT was obliged to deal with the issues and the evidence accordingly. It will become clear from the discussion which follows that my own view of the evidence before the AAT is that it was insufficient to discharge that onus. The AAT did not, in terms, state its satisfaction that the onus had been discharged. Rather, it said (in a passage I will later set out in full) that 'the evidence as it stands is sufficient to support the conclusion that the executive summary was brought into existence for the requisite purpose, and I so find'.
36 Arguably, this stated a lesser test than was required. A mere sufficiency of evidence to provide some support for the conclusion would not satisfy a burden of proof on the balance of probabilities. However, there are a number of reasons which outweigh a conclusion that the wrong test was used. First, and importantly, the AAT expressly referred to the onus borne by the respondent in its decision. Secondly, the appellant did not raise the argument. Thirdly, not too much should be made, with the benefit of hindsight, about the fact that the conclusions of the AAT could have been differently expressed or in terms that more clearly stated the AAT's satisfaction on the balance of probabilities (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287). The second question may therefore be put aside.
37 Examination of the first question I identified must proceed by reference to limitations which arise from the character of an appeal under s 44 of the AAT Act. An appeal under s 44 of the AAT Act must be one 'on a question of law'. That limitation has a significance which will require attention. Leaving aside for the moment, however, the necessity to formulate appropriate questions of law the underlying issues in the appeal concern the following broad topics:
· The purpose for which the executive summary was brought into existence. Was it for 'the purpose of submission for consideration by the Cabinet …'?
· If the executive summary was an exempt document, was it contrary to the public interest for the whole working party report to be disclosed?
· If the executive summary was not an exempt document was the working party report exempt under s 36 nevertheless?
38 The second and third of these issues concern the application of the statutory tests in s 36 to relatively uncontroversial considerations. They may be disposed of briefly.
39 Inevitably, disclosure of the working party report would reveal the substance, if not the precise text, of the executive summary. Any protection given by s 34 (assuming the executive summary was exempt in its own right) would thereby be negated. Whether the question is approached on the basis of preserving the confidentiality of a document found to have been created for the purpose identified by s 34 or is approached on the basis of facilitating the effective operation of the statutory scheme in the FOI Act it is, to my mind, clear that the test in s 36(1)(b) would be met in those circumstances, as the AAT found.
40 On the other hand, as the respondent accepted, whether or not there might be a broader foundation for a conclusion that the working party report was independently exempt under s 36, in the AAT decision that conclusion depended upon the preceding conclusion that the executive summary was an exempt document under s 34. If the preceding conclusion was set aside on the appeal the derivative conclusion could not be sustained but would require further consideration.
41 In the circumstances, the possible outcomes of the appeal turn on the question whether the decision that the executive summary was an exempt document should be set aside. If that part of the decision is not set aside the appeal must be dismissed. If it is set aside the matter should be returned to the AAT for further consideration. Such further consideration might clearly extend to whether the requirements of s 36 were met even if the executive summary was not an exempt document in its own right under s 34.
42 Before the first issue identified above (concerning the purpose of the executive summary) is examined some further attention is required to the character of the present appeal. The necessity to identify a question of law in an appeal under s 44 of the AAT Act has been frequently stressed (see e.g. Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133 ('Colby') citing Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178). It is not enough that the Court might take a different view of the conclusions to be drawn from facts before the AAT or the weight to be given to the opinions of witnesses before the AAT. Nor could the fact that opinions upon which the AAT might rely were not strictly admissible as evidence necessarily disqualify such opinions from attention by the AAT because it is not bound by the rules of evidence (see s 33(1)(c) of the AAT Act and Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492-3). Nevertheless, the position is not completely at large. There must have been some evidence before the AAT which was capable, as a matter of law, of sustaining its conclusions.
43 It is well established that 'whether facts fully found fall within the provisions of a statutory enactment' properly construed is a question of law (see e.g. Hope v Bathurst City Council (1980) 144 CLR 1 ('Hope') at 7). Similarly, 'whether facts as found answer a statutory description' will often be a question of law (see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 ('Vetter') at [24]). On the other hand, a conclusion about which minds might reasonably differ does not raise a question of law unless 'on the facts found only one conclusion is open' (Hope at 8, Vetter at [27]).
44 A Full Court of this Court in Collector of Customs, Tasmania v Flinders Island Community Association (1985) 7 FCR 205 at 214 applied Hope (at 7) saying:
Where facts are fully found or undisputed the question whether they fall within the terms of a statutory provision, properly construed, is a question of law.
45 Similarly, in Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 Sheppard and Burchett JJ said (at 277):
In reaching our conclusion, we have considered whether the matters relied upon by counsel for the applicant raise a question of law for decision. Unless they do, the tribunal's decision must stand. We are of opinion that a question of law is involved because the question is whether facts which have been fully found (though as to broad categories rather than specific instances) fall within the provisions of the relevant enactment; see Hope v Bathurst City Council (1980) 29 ALR 577 at 581; 144 CLR 1, per Mason J at p 7.
46 The question whether there is any evidence of a particular fact is also a question of law. That proposition has been accepted as applying to issues arising in appeals under s 44 of the AAT Act (see Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 at [29] and Colby at [16]). The proposition, so far as it concerns judicial review more generally was articulated by Mason CJ (with whom Brennan agreed, Deane J agreed generally and Toohey and Gaudron JJ agreed on this point) in Australian Broadcasting Commission v Bond (1990) 170 CLR 321 ('Bond') at 355. His Honour said (at 355-356):
The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd; Australian Gas Light Co. v. Valuer-General. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light; Hope v. Bathurst City Council. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden.
But it is said that [t]here is no error of law simply in making a wrong findings of fact": Waterford v. The Commonwealth, per Brennan J. Similarly, Menzies J observed in Reg. v. District Court; Ex parte White:
"Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law."
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
(Footnotes omitted)
47 The judgments in McPhee v S. Bennett Ltd (1934) 52 WN(NSW) 8 ('McPhee') and Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 ('AGL'), to which Mason CJ referred, were both judgments of Jordan CJ.
48 In McPhee, Jordan CJ said (at 9):
The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v. Lipton Ltd and Mersey Docks and Harbour Board v. West Derby Assessment Committee. But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact.
(Citations omitted)
49 In AGL, Jordan CJ said (at 137-138):
In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities:
(1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law: …
(2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact: …
(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences …
(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences: … Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law: … If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law: …
(Citations omitted.)
50 The consequence of the legislative arrangement whereby an appeal from the AAT to this Court is only available 'on a question of law' is that the assessment of factual matters is left to the AAT. In a different context but by way of a sufficient analogy (i.e. satisfaction on the part of a tribunal) the High Court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Limited (1953) 88 CLR 100 drew attention (at 119-120) to:
… the distinction between on the one hand a mere insufficiency of evidence or other material to support a conclusion of fact when the function of finding the fact has been committed to the tribunal and on the other hand the absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends.
51 The evidence upon which the AAT's conclusion, that the executive summary was an exempt document because it had been prepared for the purpose of submission for consideration by the Cabinet, depended was that provided by Ms Croke. In part her evidence relied upon examination of identified correspondence, in part it relied upon her experience in her position (which she had held since September 2003) and earlier positions and in part it reflected her opinions. It is important to maintain a distinction between matters about which Ms Croke gave evidence from her own knowledge and experience and those which depended upon the formation and declaration of an opinion, particularly an opinion about any intention or purpose to be imputed to others.
52 Before setting out the relevant parts of her evidence it will be useful to identify some of the documentary material which formed the backdrop against which her evidence was given and her opinions stated. As earlier indicated, the Dawson Committee Report was released in April 2003 and, as appears from the correspondence to which reference will shortly be made, was the subject of attention at a Cabinet meeting on 15 April 2003. On 24 July 2003 the Treasurer, Mr Costello, wrote to the Prime Minister, Mr Howard, in terms which included the following:
The Dawson Review suggested that these issues be examined by a working party, comprising officials from Treasury, the Attorney-General's Department, the Commonwealth Director of Public Prosecutions and the Australian Competition and Consumer Commission. The draft terms of reference have been prepared following consultations between officials from these agencies. Cabinet Minute of 15 April 2003 notes that the arrangements would be settled by an exchange of letters.
I propose that the working party report to me by the end of the calendar year. I would then bring the issue to Cabinet early in the New Year, having obtained the support of the Minister for Justice and Customs for any recommendations to be put forward for Cabinet's endorsement.
(Emphasis added)
53 The terms of reference provided that:
… the working party is to consider and report on whether an appropriately defined criminal offence or offences can be introduced into Commonwealth law proscribing some or all of the activities that comprise cartel behaviour.
(Emphasis added)
54 The working party was directed to specifically consider a number of particular aspects and factors. The terms of reference say nothing about the particular use which would be made of its report (which was to be made to the Treasurer) or about the form its report should take. It was not directed that it should provide an executive summary for consideration by Cabinet or otherwise.
55 The Prime Minister replied to the Treasurer on 4 September 2003 saying:
Your proposal is consistent with Recommendation 10.1 of the Review of the Competition Provisions of the Trade Practices Act 1974, and the government response. Accordingly, I agree to the establishment of a working group, as you have outlined, to further consider the proposal to introduce criminal penalties for serious cartel behaviour and to the proposed draft terms of reference.
While I note that the working group will comprise officials from Treasury, the Attorney-General's Department, the Commonwealth Director of Public Prosecutions and the Australian Competition and Consumer Commission, I would encourage the working group to consult my department, especially on the development of significant proposals.
I understand that you propose that the working group reports to you by the end of the year, and I look forward to Cabinet considering the recommendations early in 2004.
(Emphasis added)
56 In a press release issued on 3 October 2003 the Treasurer publicly announced the terms of reference and stated:
On 16 April 2003, the Government announced its in principle acceptance of the recommendation of the Dawson Review, that criminal sanctions be introduced, subject to further consideration of these issues.
The working party will comprise officials from the Treasury, the Attorney-General's Department, the Australian Competition and Consumer Commission and the Commonwealth Director of Public Prosecutions.
The working party is expected to report to the Treasurer by the end of 2003.
(Emphasis added)
57 From these documents some matters were clear and were not in dispute. One was that the working party was to report to the Treasurer. Another was that nothing in the terms of reference informed the working party that it was to prepare its report for Cabinet, or prepare any executive summary of the report for Cabinet. However, there can be no doubt that the issues to be addressed by the working party were ones which were intended for Cabinet consideration.
58 Less clear, perhaps, having regard to the Prime Minister's reply was whether the recommendations referred to in the Treasurer's letter and the Prime Minister's response which were to be 'put forward for Cabinet's endorsement' were to be recommendations by the working party or by the Treasurer with the support of the Minister for Justice and Customs. If it were a matter for me to decide I would prefer the view, as a matter of construction, that the recommendations being referred to were those which would be formulated by the Treasurer after consideration of the working party report. That view accords also with the approach earlier taken by the reviewing officer to the character of reports of this kind. The AAT came to the opposite view. The first paragraph I have set out below from Ms Croke's evidence suggests, I think, that she read the correspondence as I did. It was the Treasurer who was to make the necessary submission and recommendations to Cabinet. In due course that is what occurred, although the executive summary was provided to Cabinet as an attachment to the Treasurer's submission.
59 The course which was followed was in accordance with the requirements of the Cabinet Handbook and the Drafter's Guide. The Cabinet Handbook said:
Cabinet considers policy proposals that are brought before it by a sponsoring minister, usually the portfolio minister who sits in the Cabinet …
60 The Drafter's Guide said:
Submissions are taken to the Cabinet by ministers seeking a decision on a proposed course of action. They contain the minister's recommendations, couched in terms of agreeing to the preferred approach and, where absolutely necessary, noting critical contextual information.
(Emphasis added)
61 Ms Croke confirmed, in her oral evidence, that the practice directed by the Cabinet Handbook was required to be adhered to by all Commonwealth departments and agencies at the relevant time. That provides a further reason to doubt that the Prime Minister contemplated that recommendations would be made to Cabinet, directly or indirectly, by the working party or that recommendations it might make to the Treasurer would necessarily be put before Cabinet for approval.
62 Ms Croke's evidence about these matters was, firstly, as follows:
19. I read the exchange between the Prime Minister and the Treasurer as indicating an intention that the Report be brought into existence for the purpose of forming the basis of a submission by the Treasurer for consideration by the Cabinet. In accordance with usual practice (see paragraph 25 below), the executive summary to the Report would be attached to and form part of the Cabinet submission. The Treasurer's statement that he would bring the issue to the Cabinet after the Working Party reported to him indicated that he intended that the Report support the submission to the Cabinet. It is also indicated by the Prime Minister's response that he looked forward to the Cabinet considering the recommendations consequent upon the Report.
(Emphasis added for later discussion)
63 Ms Croke's appreciation of the position accords with my own reading of the correspondence. The working party was to report to the Treasurer. It was expected that the Treasurer would formulate a submission for consideration by Cabinet after receipt of the working party report. The recommendation to be made would be 'consequent upon' the report - i.e. would be formulated after the report was received and taken into account. The same appreciation, that it was a matter for the Treasurer to formulate appropriate recommendations after receipt and study of the working party report, pervades the discussion in Ms Croke's evidence which followed. However, there are other matters which now require specific emphasis.
64 Ms Croke went on:
20. Tribunal document T9 is an email sent on 1 June 2007 by Angelo Anagnostis, PM&C's FOI Contact Officer to Bronwen Urban of the Department of the Treasury. It was created in my absence on two months' leave. I have read document T9 (the email).
21. In the email Mr Anagnostis says that, in his opinion, there may not be a strong case that the executive summary of the Report is exempt from release under s 34(1)(c) of the FOI Act.
22. The email outlines the exchange of correspondence between the Prime Minister and the Treasurer, as it appears above in paragraphs 17 and 18.
23. I can see from the email that Mr Anagnostis was not satisfied that the exchange between the Prime Minister and the Treasurer sufficiently indicated an intention that the Report was "brought into existence for the purpose of submission for consideration by the Cabinet". Mr Anagnostis stated that one possible interpretation is that the Report was to be brought into existence for the purpose of submission for consideration by the Treasurer in order to enable the Treasurer to make recommendations to the Cabinet. Mr Anagnostis noted, however, that a claim could be made if the Treasury could satisfy itself that the Report was brought into existence for the purpose of submission for consideration by the Cabinet. As I have stated above (paragraph 20), the email was created in my absence on leave.
24. There is another, and in my view preferable, interpretation of the correspondence which I consider better reflects the way in which matters are in fact dealt with by the Cabinet. I base my interpretation of the correspondence on my experience as the head of the Cabinet Secretariat in PM&C since September 2003. In the course of that experience, I have observed that Ministers often use indirect language to indicate that a document is intended to be submitted to the Cabinet or may not even express that they have such an intention. In my opinion, the exchange between the Prime Minister and the Treasurer does not indicate an intention that the Report be created merely for the purpose of consideration by the Treasurer. Rather, as outlined at paragraph 19 above, the exchange indicated an intention that the Report would canvass a range of options to support a submission by the Treasurer to the Cabinet.
25. In my experience it is often the case that a minister will seek a detailed examination of complex matters by a working group to assist the minister in canvassing all the options and refining proposals to take forward to the Cabinet. In such cases, a submission may assess the proposals considered by the working group with the Minister then recommending which matters should be progressed. It is generally the practice in such cases that the executive summary of the report is attached to the Cabinet submission regardless of whether or not the proposing minister supports all the proposals of the working group. The full report is available to Cabinet ministers but usually not attached to the Cabinet submission.
26. The issue with which the Report was concerned was initially the subject of Cabinet discussion at its meeting of 15 April 2003. At that meeting the Cabinet agreed that a working group would consider the issue with the detailed arrangements for the working group to be agreed by an exchange of letters, which is the correspondence at MC3. It is clear that the issue in question was to return for Cabinet's further consideration and this occurred at the meeting of 21 June 2004. I consider that this sequence of events supports my view that the executive summary was brought into existence for the Cabinet's consideration.
27. Only the Executive Summary of the Report was actually submitted to the Cabinet. The remainder of the Report, however, has a close connection to the Cabinet process and while not actually submitted, it provides the detailed information that formed the basis for the Executive Summary.
65 I have emphasised (in paragraphs 19, 25, 26 and 27) the only four sentences in which some mention was made of the executive summary in a way which might conceivably support a conclusion about the purpose for which it was created. The reference in paragraph 19 depended entirely upon the statement in paragraph 25. The statement in paragraph 25 was a statement of fact but it disclosed no more than a general practice in some circumstances. That statement of general practice was made about circumstances where a working party might examine complex matters for the assistance of a minister making recommendations to Cabinet. The minister's subsequent submission often attached the executive summary even if he did not support all the proposals. The statement in paragraph 27 made clear that only the executive summary of the report was actually placed before Cabinet. The statements in paragraphs 19, 25 and 27 rose no higher than recording a general practice in some cases. In my view, they were not capable of supporting a conclusion that, in the present case, the executive summary was actually brought into existence for the purpose of consideration by Cabinet. That would be mere surmise, based on the matters stated by Ms Croke.
66 The statement in paragraph 26 was an opinion based upon a sequence of events which I have already outlined. The opinion in paragraph 26 may be contrasted with that offered in the last sentence in paragraph 24 that (referring to statements in paragraph 19) the working party report (i.e. the whole report) would be the document that would form the basis of, or support, a submission by the Treasurer to the Cabinet. Such a circumstance was insufficient to attract an exemption for the whole of the report under s 34. The additional circumstance, so far as it concerned the executive summary, that it was actually placed before the Cabinet was also insufficient, on its own, to endow the executive summary with exempt status. A further characteristic was required. That characteristic (that the executive summary was brought into existence for the purpose of consideration by the Cabinet) was supplied only by Ms Croke's statement in paragraph 26, based upon the sequence of events set out in the correspondence, namely, that a working group would consider 'the issue' and that 'the issue in question' would return for Cabinet's further consideration. In my view, the opinion in paragraph 26, likewise, was not capable of supporting the requisite conclusion because it could take on no greater probative nature than the identified facts on which it was based.
67 The only evidence about the purpose for which the executive summary was brought into existence was the opinion offered by Ms Croke. There was no specific evidence at all about why an executive summary was prepared in this case, much less that it was prepared for the particular purpose of being placed before Cabinet as opposed to serving, in the usual way, as a convenient distillation of the conclusions reached in the main body of the report. No other evidence about the intention of Cabinet, the Treasurer, the Prime Minister or the members of the working party was before the AAT.
68 The critical passages in the AAT decision dealing with this issue are the following:
74. For a document to be exempt under s 34(1)(a), two requirements must be satisfied:
· The document must have been submitted to Cabinet, or proposed by a minister to be so submitted; and
· The documents must have been brought into existence for the purpose of submission for consideration by the Cabinet.
…
77. The time at which the document was brought into existence is the time at which the purpose must be ascertained: Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 264 at 265-266. Consequently, if it was originally created for a different purpose, the fact that it was subsequently decided to submit it to Cabinet does not bring it within the exemption: Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123 at 135.
…
81. As regards the purpose for which the summary was created, while the Treasurer's letter of 24 July 2003 does seek the prime minister's approval to establish a working party that would report to the Treasurer himself, part of the arrangements for which approval is sought is the proposal that the issue be brought to Cabinet, together with any necessary expressions of support from the justice minister or [sic] any recommendations put forward for Cabinet's endorsement.
82. In his reply of 4 September 2003 (MC3), the prime minister notes that the working group is to report to the Treasurer by the end of 2003 and proceeds to say "I look forward to Cabinet considering the recommendations early in 2004". The word "recommendations" appears to refer to the working party's report on the topics listed in its terms of reference, or at least those of them which the Treasurer, in consultation with the justice minister, has decided to support. Ms Croke's evidence interprets the correspondence in the same way and adds that in accordance with usual practice, the executive summary would be attached to, and form part of, the Cabinet submission.
…
87. Also material, as Ms Croke pointed out, is the fact that the establishment of the working group was itself discussed at a Cabinet meeting on 15 April 2003. That adds cogency to her interpretation that the issue was clearly intended to return for Cabinet's further consideration, as in fact happened on 21 June 2004. She considers that the sequence of events itself supports the view that the executive summary was brought into existence for Cabinet's consideration.
88. As Cabinet had itself sanctioned the establishment of a working group to consider implementation of the Dawson Committee recommendations, it would be most unlikely that Cabinet would not expect to see at least the executive summary when the issue was brought back to it in the manner contemplated.
…
93. As the applicant pointed out, there is no evidence before the tribunal from any of the members of the working party, and the failure to call such evidence has not been explained. The Federal Court has recently held, however, that the principle in Jones v Dunkel (1959) 101 CLR 298 at 308 does not apply to this tribunal's proceedings, which are inquisitorial in nature: Green v Minister for Immigration and Citizenship [2008] FCA 125 at para 41. Further, the evidence as it stands is sufficient to support the conclusion that the executive summary was brought into being for the requisite purpose, and I so find.
(Emphasis added)
69 In my view there is no doubt that the AAT correctly appreciated the nature of the issue for its consideration and decision (paragraphs 74 and 77). When, however, it turned to whether the statutory test was satisfied it appeared to rely on four principal matters. First, that 'the issue' would be brought back to Cabinet (paragraphs 81, 87, 88). Secondly, that the 'recommendations' referred to by the Prime Minister related 'to the working party's report on the topics listed in its terms of reference, etc' (paragraph 82). It suggested that Ms Croke's evidence interpreted the correspondence in the same way. Thirdly, that Cabinet would expect to see at least the executive summary when the issue was brought back to it (paragraph 88). Fourthly, it is apparent that the AAT's conclusions depended, in part at least, upon general acceptance of Ms Croke's opinions and in particular her opinion on the very matter the AAT was required to decide.
70 The first and third of those matters could not be decisive, or even particularly influential in their own right. A conclusion that 'the issue' was to be brought back to Cabinet says nothing, in its own right, about the purpose for which the executive summary was brought into existence. An expectation that Cabinet might have a particular document available to it, likewise, does not prove the purpose for which the document was created, particularly when it is, properly regarded, part of a larger document. In my view the conclusion reached by the AAT depended ultimately on two critical matters: the opinion stated by Ms Croke at the end of paragraph 26 of her affidavit and its own apparent conclusion, based on the correspondence, that the Prime Minister contemplated that 'recommendations' would be made by the working party for consideration by Cabinet.
71 In my view Ms Croke's opinion about the matter which the AAT had to decide should not be regarded as evidence providing support for that conclusion, as I have already said. She very properly identified the matters upon which the opinion was based but they were inadequate to sustain it. She gave no evidence that she was privy to, or had even indirect knowledge of any requisite intent. Her opinion was based, as she said, on a preference for one reading of the correspondence over another, earlier, interpretation of it. The other evidence she gave of general practice was equally consistent with either interpretation on the facts of this case. Even allowing that the AAT was not bound by the rules of evidence (s 33(1)(c) of the AAT Act) I do not think Ms Croke's opinion should be regarded as any evidence at all on the question.
72 In Bell IXL Investments Ltd v Life Therapeutics Ltd [2008] FCA 1457 Middleton J said (at [14]):
In considering the material before the Court, the trier of fact must be careful to distinguish between inference and conjecture. A conjecture may be plausible, but it is effectively still a mere guess. An inference is a deduction from the evidence, and if reasonable can be treated as part of the legal proof to be considered in making a factual determination in any particular proceeding. Whilst sometimes it may be difficult to distinguish between conjecture and inference, nevertheless the distinction is an important one…
His Honour's observations, with respect, state a fundamental and well established distinction which is not always observed. (See also Luxton v Vines (1952) 85 CLR 352 at 358, quoting Bradshaw v McEwans Pty Ltd (HCA (1951) unreported).
73 In my view there was no evidence given by Ms Croke directly supporting the conclusion expressed in paragraph 93 of the AAT decision about the purpose for which the executive summary was created and no evidence was given by her which might reasonably support an inference to that effect. However, that is not the end of the matter.
74 The attribution by the AAT of some form of intent to the Prime Minister raises different issues. Paragraph 82 of the AAT decision does seem to contain a finding of fact that it was in the contemplation of the Prime Minister, when he agreed to the Treasurer's proposals, that Cabinet would consider recommendations made by the working party in its report to the Treasurer. If the recommendations to which the Prime Minister (and the Treasurer) had referred were those to be made by the working party then there is some support for a conclusion that a document, later created, conveying the working party's 'recommendations' might have been created for the purpose of consideration by Cabinet. One difficulty is that the description given by the AAT in paragraph 82 does not really accord with that possibility. The reference to 'the working party's report on the topics listed in its terms of reference, or at least those of them which the Treasurer, in consultation with the Justice Minister, has decided to support' is not apt to isolate the executive summary as a separate document. Despite the AAT's observations I can see no support either in Ms Croke's own evidence for a construction of the word 'recommendations' in the Prime Minister's letter to that effect. On the contrary, I read her evidence as being in substance to a different effect.
75 The appellant argued that any purpose to be served by the working party making recommendations was distinct from identification of the purpose for which the executive summary was created. I think the submission has a good deal of force, particularly as in the relevant paragraph (paragraph 82) the AAT's observations were expressed by reference to topics to be dealt with in the working party report, rather than specifically in an executive summary. Nevertheless, the question does not turn on the preferable construction of the Prime Minister's letter but upon whether it is capable of bearing the meaning attributed to it by the AAT.
76 The correspondence between the Treasurer and the Prime Minister was plainly relevant. The AAT was entitled to come to a view about whether it suggested the purpose for which the respondent contended. Although, in my view, the interpretation placed on the correspondence is too strained to be accepted as correct, and although it did not, contrary to the AAT's statement, receive support from Ms Croke, that interpretation may not be dismissed as one incapable of being reached. Although, in my view, the AAT's conclusion about its meaning was erroneous I could not say that it was an inference so unreasonable that it could not be drawn or that the correspondence necessitated the opposite conclusion. As a result, slender though in my view the support was, there was some support for the AAT's conclusion that the executive summary was prepared for the purpose of consideration by Cabinet. My exploration of the issue has done no more, ultimately, than identify a question about the sufficiency, rather than the absence, of evidence. On the authorities that is not a question of law. The AAT's conclusion must be regarded as raising only a factual question. It follows that the conclusion reached by the AAT is not reviewable in the present proceedings.
77 The appeal faces a further difficulty. In a number of recent cases in this Court the jurisdictional limitation upon appeals under s 44 has been emphasised (see Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; Comcare v Etheridge [2006] FCAFC 27 ('Etheridge'); Purvis v Dairy Adjustment Authority (No 2) (2006) 150 FCR 48; Brown v Repatriation Commission [2006] FCA 914 ('Brown') and Colby. Identification of a question of law is not only a fundamental prerequisite but, as many authorities confirm, a question of law so identified is the subject matter of the appeal.
78 The questions of law which are said to be raised on the appeal (as stated in a further amended notice of appeal) are as follows:
THE QUESTIONS OF LAW raised on the appeal are:
(a) In relation to the Executive Summary, did the Tribunal misconstrue s 34(1) of the FOI Act, namely, the requirement that the document was brought into existence for the purpose of submission for consideration by Cabinet, by taking into account the purpose or effect of the document at a time after the document was brought into existence and by taking into account whether disclosure of the document could disclose a minister's position and by so deciding in circumstances where on the facts as established it was not open to it so to decide.
(b) In relation to the Working Party Report, did the Tribunal misconstrue the statutory expression 'the disclosure of which [document] … would be contrary to the public interest' in s 36(1)(b) of the FOI Act by so deciding in circumstances where on the facts as established it was not open to it so to decide.
79 I need, for present purposes, only give attention to the first question formulated. The question of law purportedly expressed in (a) depends, in all of its alternative modes of expression, upon the possibility that the AAT misconstrued s 34(1) of the FOI Act. Although, as I have indicated, there was a question about whether the AAT misapplied s 34 to the facts available there is no reason to suppose that it misconstrued s 34(1) or misunderstood its requirements (see paragraphs 74 and 77 of the AAT decision earlier set out).
80 The contention that the AAT took 'into account the purpose or effect of the document at a time after the document was brought into existence' could be understood as a contention intended to deny that the evidence was capable of showing that the statutory condition in s 34(1)(a) was met. The related contention that 'on the facts established it was not open to it to so decide' could be understood, so far as it applied to the question of purpose, in the same way. Such contentions, even reading them in that way, only raise a question of law if the principles earlier addressed are satisfied. If the contentions are read more narrowly they do not raise a question of law at all. On either view no question of law is ultimately presented for decision in this case.
81 In my view the appeal should be dismissed. It would be appropriate to dismiss it with costs.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.