Consideration
40 The necessary starting point is the terms of the FOI Act: the Tribunal was dealing with an application under s 57A of that Act. By s 15, a person who wishes to obtain access to an official document of the Minister may request access to the document. The phrase "official document of a Minister" is defined in s 4(1) by reference to whether a document that is in the possession of the Minister is in the Minister's possession in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State.
41 By s 26, where a decision is made refusing to grant access to a document in accordance with the request, the decision-maker is to cause the applicant to be given notice in writing of the decision.
42 In the present case, as found by the Tribunal at [5], a decision to refuse the request on the grounds that the document was not an official document of the Minister and was therefore not a document to which the applicant had a right of access under the FOI Act was made on 8 December 2015.
43 On 13 January 2016, the applicant sought review of that decision under s 54L of the FOI Act by making an application to the Information Commissioner. On 7 December 2016, the Information Commissioner affirmed the decision of 8 December 2015, acting under s 55K of the FOI Act.
44 Under s 57A of the FOI Act, an application may be made to the Tribunal for review of the decision of the Information Commissioner under s 55K on an IC review, as defined in s 4(1) by reference to s 54G.
45 Such an application was made to the Tribunal on 23 December 2016.
46 Section 60 of the FOI Act sets out who are the parties to a proceeding before the Tribunal for a review of the decision.
47 Section 61A sets out modifications to various provisions of the AAT Act.
48 Section 63 of the FOI Act makes provision for the determination by the Tribunal as to whether it is desirable to make an order or orders under ss 35(2), (3) or (4) of the AAT Act and requiring the Tribunal to have regard to the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate. It was common ground that s 63 did not apply in terms to a document in the possession of the Minister that is claimed by the Minister not to be an official document of the Minister.
49 The analysis then turns to s 64. Reading subsections (1) and (5) together, s 37 of the AAT Act does not apply in relation to a document in the possession of the Minister that is claimed by the Minister not to be an official document of the Minister as if the references to an exempt document were references to a document in the possession of the Minister that is not an official document of the Minister. Thus s 37 does not apply in relation to a document that is claimed not to be an official document, but in proceedings before the Tribunal in relation to such a document, the Tribunal may, for the purpose of deciding whether the document is not an official document of a Minister, require the document to be produced for inspection by members of the Tribunal only. If upon the inspection the Tribunal is satisfied that the document is not an official document of the Minister, the Tribunal must return the document without permitting a person in the position of the applicant to have access to the document or disclosing the contents of the document to such a person. In the present case the applicant does not contend that the Coalition Agreement should have been produced under s 37 of the AAT Act. That must be because of the operation of s 64 of the FOI Act.
50 If the document is voluntarily produced to the Tribunal, by s 64(1A), only the members of the Tribunal as constituted for the purposes of the review or a member of the staff of the Tribunal may inspect, or have access to, the document.
51 By s 64(2), the Tribunal may require the production, for inspection by members of the Tribunal only, of a document for the purpose of determining whether it is practicable for the Minister to grant access to a copy of the document with deletions, and where such a document is produced by reason of such a requirement the Tribunal shall, after inspection of the document by the members of the Tribunal as constituted for the purposes of the proceeding, return the document to the person by whom it was produced without permitting a person to have access to the document or disclosing the contents of the document to a person such as the applicant.
52 Subsections 64(6)-(8) make provision for the contents of the document not being disclosed where a document produced under s 64 is sent to the Federal Court or the Federal Circuit Court in accordance with s 46 of the AAT Act.
53 Turning to the AAT Act, the provisions affected by the operation of s 63 of the FOI Act, which does not in terms apply to a document in the possession of the Minister that is claimed by the Minister not to be an official document of the Minister, are those in s 35, as follows. First, there is the provision in s 35(2) that the Tribunal may direct that a hearing or part of a hearing is to take place in private and give directions in relation to the persons who may be present. Second, there is the power of the Tribunal in s 35(3) to give directions prohibiting or restricting the publication or other disclosure of information concerning a person. Third, there is the power of the Tribunal in s 35(4) to give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that relates to a proceeding and is information that comprises evidence or information about evidence or information lodged with or otherwise given to the Tribunal.
54 As set out at [7] above, s 37 of the AAT Act deals, speaking generally, with the lodging of material documents with the Tribunal. The obligation on the person who has made a decision that is the subject of an application for review is to lodge with the Tribunal a copy of, relevantly, "every other document that is in the person's possession or under the person's control and is relevant to the review of the decision by the Tribunal" does not apply to a document claimed to be an official document of the Minister.
55 As set out at [5] above, s 39 provides that subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
56 This provision is not said expressly to be subject to s 37 but the obligation on the Tribunal to ensure that a party is given a reasonable opportunity to inspect any documents to which the Tribunal proposes to have regard in reaching a decision is necessarily affected by the operation on ss 37 and 64 of the FOI Act.
57 The Coalition Agreement has not been lodged with the Tribunal and the Tribunal has not required the document to be produced for inspection by members of the Tribunal.
58 In the present case the Tribunal has stated that it does not propose presently to have regard to the Coalition Agreement in reaching a decision in the proceeding so that s 39 of the AAT Act is not directly engaged. I consider at [63] below the applicant's submission that the Tribunal misconstrued the words "proposes to have regard" in s 39.
59 In my opinion, reading the sets of provisions in the AAT Act and the FOI Act together, including s 2A of the AAT Act, it is clear from the use of the terms of s 64 of the FOI Act, such as "members of the Tribunal only" and "without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is … a member of the Tribunal … ", that it would be contrary to the legislative scheme for the Tribunal to permit access to an applicant party in the present circumstances.
60 Those circumstances are that the Tribunal does not at this point propose to have regard to the contents of the Coalition Agreement in reaching a decision in the proceeding; the Tribunal has not required the document to be produced for inspection "by members of the Tribunal only", and the document has not been voluntarily produced to the Tribunal, giving rise to the obligation that only the members of the Tribunal constituted for the purposes of the review may inspect, or have access to, the document. In short, the Tribunal does not have the document and it appears the applicant has in mind that either the Tribunal should be required to obtain the document or the Tribunal should make an order directed to the first respondent to supply the document or access to the document to the applicant's legal representatives. The applicant emphasised the second of these alternatives in his submissions.
61 In my opinion the legal representatives of a party are in no different position to a party: see News Corporation Limited at 96 (per Fox J) and 103 (per Woodward J) which I set out at [70] below.
62 I do not accept the applicant's submission that s 39 of the AAT Act operates unless, and at least until, s 64 of the FOI Act is engaged by actual production of the relevant document to the Tribunal, and that s 39 of the AAT Act required that his lawyers be given access to a copy of the document. That construction would pluck s 39 out of its statutory context, in particular s 64 of the FOI Act.
63 Neither do I accept the submission that, as matters presently stand, the Coalition Agreement is a document "to which the Tribunal proposes to have regard in reaching a decision in the proceeding" within the meaning of s 39(1) of the AAT Act. In my opinion, in the present circumstances, having regard to the mere existence of a document, rather than to its contents, does not establish that the Tribunal proposes to have regard to the document. No different conclusion follows from the fact that the document is the subject-matter of the request under the FOI Act.
64 I do not accept the submission that the Tribunal erred in concluding that it did not have the power to order that the legal representatives of the applicant have access to the document in the possession not of the Tribunal but of the first respondent party.
65 I turn to consider the authorities on which the applicant relies.
66 Day, on which the applicant principally relied, appears to involve two stages of reasoning. First, at 182G, the Court accepted that the application of s 39 of the AAT Act was restricted by the procedure contained in s 64(1) of the FOI Act as it then stood and in such a case the Tribunal had no discretion to make the documents available to the applicant's counsel. The balance of the judgment concerns the possibility that the Tribunal can obtain the documents by some means other than an order, for example, by voluntary production. In that case, it was said, s 64(1) as it then stood would have no application and the operative sections would be s 39 of the AAT Act and s 63(1) of the FOI Act.
67 In my opinion this decision does not assist the applicant as the facts stand. I also note that s 64(1A) of the FOI Act now expressly deals with the position of such a document being voluntarily produced to the Tribunal and expressly provides that only the members of the Tribunal as constituted for the purposes of the review of a member of the staff of the Tribunal in the course of the performance of their duties may inspect or have access to the document. I do not accept the applicant's submission that Day is conclusive of the present application to the Court. I also do not accept the applicant's submission that s 39 of the AAT Act operates in the circumstances of this case where the Tribunal does not have the document. It is to be recalled that the second stage of the reasoning in Day proceeded by reference to "if the Tribunal can obtain the documents by some means other an order" (emphasis added).
68 As to State Electricity Commission of Victoria v Wright, it concerned the Freedom of Information Act 1982 (Vic) and the Administrative Appeals Tribunal Act 1984 (Vic). Applications for prerogative relief and for relief under the Administrative Law Act 1978 (Vic) failed in relation to orders of the Tribunal that "… the Applicant by its counsel be granted access at the premises of the Tribunal on and after 3 November 1997 to the documents in dispute and the documents provided to the Tribunal for the purpose of an inspection, upon the usual undertaking by counsel given in relation to such an application." In my view this decision is of no present assistance. Not only were the facts different in that the documents in dispute had been delivered to the Tribunal, but also s 56(3) of the Freedom of Information Act of the State of Victoria made express provision that the Tribunal may make an order that the contents of a document produced to the Tribunal under s 56(1) be disclosed to a qualified legal practitioner representing the applicant. As noted by Byrne J at page 20 of the report, the question before that Court "must be determined upon a proper construction of the Victorian statutes."
69 News Corporation Limited relevantly concerned the validity of orders made by the Tribunal under s 35 of the AAT Act. Counsel for the applicants had sought access to the schedules which had been prepared and presented by the respondent setting up lists of the documents sought to be exempted, a short description of the contents of each sufficient to provide a prima facie justification for the ground or grounds exemption relied on, and a statement of the provisions of the FOI Act relied upon to support the claim for exemption. There was an order for non-disclosure of the schedule or schedules. Further, access was not given to the documents to which the lists related. There was some oral evidence given in the absence of the applicants.
70 At 96 of the report, Fox J referred to ss 35 and 39 of the AAT Act and ss 63 and 64 of the FOI Act. His Honour noted that an application had been made to the Tribunal for access to be granted to counsel, on the footing that he, or he and his solicitor, were the only persons to see the document and that that application was rejected by the Tribunal. His Honour said, at 96-97:
In the light of the statutory provisions, I doubt whether the Tribunal had power to act in any such way, but it would in any event be a matter for its discretion, and its failure to exercise the discretion in favour of the applicant is not a matter which would by itself involve an appealable error of law. I should add in this regard that the submission of the applicants depended at several points in drawing a distinction between "party" and the legal representative of a party, when considering the statutory language, but in my opinion the distinction is not sustainable.
…
Section 35(2) of the AAT Act is conditioned by the state of satisfaction of the Tribunal. It seems plain, and must have been the intent of s 63(1), that subs (2) applies, among other situations, to the maintenance of privacy in relation to an exempt document. To that end it can exercise the powers in that subsection (see also s 64(1) of the Act). The particular documents to which access was sought were the schedules produced by way of evidence before the Tribunal, for they contained a description of the documents, one by one. It is apparent from the evidence that to disclose the schedules would disclose the existence of the documents and their nature, would go a long way towards giving access to them (cf s 63(2) of the Act) and might well convey to the applicants, in relation to most documents, all they wished to know. It is not necessary to consider whether the schedules became exempt documents themselves (see s 25(1)).
I am of the view that s 35(2) provided a power which was available to be used, and am not satisfied that there was any error of law affecting its exercise. Section 39, which was relied on, is expressly made subject to s 35. The claim based on denial of natural justice must therefore fail.
Woodward J, at 103 said:
They challenged the order on a number of grounds, but in my view only two had any substance. The first was that it was beyond power because it was expressed in terms which extended to the legal representatives of the applicants in addition to the applicants themselves.
…
I think the reference to "parties" in s 35(2)(c) must be taken to include any persons representing those parties pursuant to s 32 of the Act, which is not confined to lawyers. It would be ridiculous if the Tribunal had power in a proper case to deny access to a company or organisation but not to the officer who happened to be representing it. And in my view even lawyers retained for a particular case should not be put in the invidious position of having to conceal important information from their clients, unless the proper trial of an action admits of no reasonable alternative. However, the reference to "restricting the disclosure" indicates that (among other possible conditions) disclosure may, in a proper case, be confined to certain named persons connected with a party.
71 I do not accept the submission on behalf of the present applicant that what Beaumont J said, in dissent, at pages 120-122 of the report provides support for his submission that the present Tribunal erred in law. Not only was Beaumont J in dissent but his Honour was concerned with the question of summaries rather than with the documents for which exemption was claimed. In addition, s 64 of the FOI Act was not then in its present form.
72 Trkulja v Google Inc concerned a dispute about discovery in the context of claims for damages for defamation. In my opinion the decision does not assist on the present question of statutory construction.
73 Re Witheford contains an observation by the Tribunal (constituted by Davies J (President), RK Todd (Deputy President) and GD Grant (Member)) as to the procedure adopted in that case. As appears at pages 541-542, an order was made under s 35 of the AAT Act prohibiting disclosure to the applicant, who appeared in person, of the documents remaining in dispute. The Tribunal said that the applicant was not excluded from the hearing while the particular documents were dealt with but the effect of the order under s 35 was that the documents were produced, evidence was taken and submissions made in relation to those documents without the applicant having the documents before him. It was in that context, and without reference to s 64 of the FOI Act, that the Tribunal said:
Where an applicant is represented by counsel it may be that in appropriate circumstances the Tribunal may feel justified in permitting the documents to be seen by counsel subject to the making of an order under s 35.
74 In my opinion the Tribunal was expressing a tentative view as to a potential practice and was not intending to construe s 64 of the FOI Act. In any event, as noted in Re Dunn, at [92]:
Contrary to the view expressed by Davies J, other cases have considered that the Tribunal does not have the power to give counsel access to documents on the basis of their giving undertakings. These include Re Arnold Bloch, Liebler & Co and Commissioner of Taxation (1984) 6 ALD 62 (Deputy President Todd), Re Kim Yee Chan and Department of Immigration and Ethnic Affairs (1985) 8 ALN N48 (Deputy President Thompson) and Re Carver and Department of the Prime Minister and Cabinet (1987) 6 AAR 317 (Deputy President Hall, Senior Member Renouf and Mr Taylor, Member).
75 As stated in Re Carver and Department of the Prime Minister and Cabinet [1987] AATA 50; 6 AAR 317 at [18] and in Re Arnold Bloch, Liebler & Co and Commissioner of Taxation [1984] AATA 123; 6 ALD 62, the Tribunal, after fuller consideration of the question, concluded that it was not open to the Tribunal to direct that access to the exempt documents be granted to counsel for the applicant. The Tribunal in Re Carver said at [18]:
… it is our view that to grant such access would fly in the face of the express provisions of s.63(1)(a) of the Act and the clear implication to the contrary arising from the provisions of s.64(1). Without repeating the reasoning set out most succinctly by Deputy President Todd in Re Arnold Bloch Liebler & Company, we are content, as we said at the hearing, to adopt that reasoning as our own and to find accordingly that access to the exempt documents cannot be granted to the applicant's Counsel.
76 In Re Dunn the Tribunal followed Day in deciding, at [99], that as it had required the documents in issue to be produced to it under s 64(1) of the FOI Act, it was precluded by the terms of that provision from permitting the applicant or his legal representatives to be given access to the documents for the purposes of the proceedings. At [91] and following, as I have said, the Tribunal discussed the practice adopted in Re Witheford.
77 O'Sullivan did not concern the FOI Act or its interrelationship with the AAT Act. It concerned the unfairness of an individual being cross-examined on the false assumption that a key document was a complete copy. The fault was not either the applicant's or the applicant's advisers. Insofar as Sackville J referred, at [45] to the second part of s 39 of the AAT Act reflecting a clear statutory policy that a party should have an opportunity of inspecting documents that may play a part in the AAT reaching a decision and should also have the opportunity to make submissions on those documents, it is answered in the present case by the circumstance that the present case does concern the FOI Act and its interrelationship with the AAT Act and, further, that point has not been reached in the present case and may not be reached.
78 Potter v Minahan, in my opinion, does not assist in the present question of statutory interpretation. It concerns the improbability "that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness …" per O'Connor J at 304. In my opinion, s 64 of the FOI Act shows the necessary clearness in relation to the application of s 39 of the AAT Act to a document that is claimed to be an official document of a Minister.
79 I do not accept the applicant's submission that s 2A of the AAT Act or case management principles operate to show that in the present circumstances the Tribunal misconstrued s 39 or erred in the exercise of its discretion. Those are general principles and must yield to the clear terms of the operative provisions of the legislation.
80 It is not necessary to consider further ground 1 of the first respondent's notice of contention to the effect that s 39 of the AAT Act does not authorise or require the making of an order allowing a party access to a document that is not in the custody, possession or control of the Tribunal. I have rejected the applicant's submission that s 39 operates in the present case where the Tribunal does not have the document.
81 It is not necessary to deal with ground 2 of the first respondent's notice of contention. My preliminary view is that the Tribunal had authority to decide whether or not the document is an official document of the Minister, pursuant to s 58 of the FOI Act: see for example s 64(1) read with s 64(5). A request under s 15 of the FOI Act may be unsuccessful, but my tentative view is that the character of the document is a matter for the Tribunal to decide. Counsel for the first respondent accepted that the Tribunal was obliged to decide whether the Coalition Agreement is or is not an official document of the Minister. In my opinion, it is not apposite to describe that duty as the exercise of no more than a preliminary decision as to the Tribunal's jurisdiction. I do not accept the first respondent's submission that whether or not the document is an official document of a Minister is a jurisdictional fact.