PRACTICE AND PROCEDURE - unavailability of member constituting the Tribunal - expiry of term of office - consent of parties - decision given by remaining members

Administrative Appeals Tribunal Act 1975 (Cth) ss. 23, 29

Freedom of Information Act 1982 (Cth) ss. 3, 26A, 33A, 54, 64

Hunter Valley Development Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305

Outboard Marine Australia Pty Ltd v Byrnes: Bauknecht (Third Party) (1974) 1 NSWLR 27

Re Levana Pty Ltd and Minister for the Capital Territory (A.81/86, 15 February 1982)

Re Maher and Attorney-General's Department (1985) 7 ALD 731

Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626

The decision under review is affirmed so far as document 8, document 12, excepting paragraph 4 thereof, and document 13, excepting the last paragraph thereof, are concerned, but otherwise the decision under review is set aside.

Since the hearing of this review, the term of office of one of the members constituting the Tribunal, Mr G.D. Grant, has expired. With the consent of the parties, and pursuant to s. 23 of the Administrative Appeals Tribunal Act 1975 (Cth), this decision is given by the remaining members.

2. This is a review of a decision by Mr N.C. Gare, Acting Director of the Australian National Parks and Wildlife Service ("ANPWS"). The decision was that access under the Freedom of Information Act 1982 (Cth) ("the FOI Act") to certain documents, being correspondence between the Queensland National Parks and Wildlife Service ("QNPWS") and the ANPWS regarding the export of koalas to Japan, should be granted to Australians for Animals ("the Association"). The Association was made a party in the proceedings.

3. By letter dated 25 January 1985, the Association applied for access to the following:

koalas since 1983, including current

applications.

2. All correspondence regarding the export of

koalas between the ANPWS and the Governments

of Queensland and New South Wales.

3. All correspondence between the ANPWS and the

Japanese Government regarding the proposed

exports of koalas.

4. The Association was advised, by letter of 15 March 1985, that:

(a) Access was granted to the documents in

category 1 above.

(b) Access to correspondence between the ANPWS

and the Governments of Queensland and New

South Wales was subject to further

consideration and that the requirements of

s. 26A of the FOI Act made it appropriate to

extend the time for response to the request

in this respect to 30 March 1985.

(c) No correspondence between the ANPWS and the

Japanese Government (category 3 above) was

held.

5. By letter dated 27 March 1985, the ANPWS informed the Association that:

(a) Access was granted to the correspondence

between the ANPWS and the Government of New

South Wales.

(b) "Access is refused, pursuant to section

33A(1) of the FOI Act, to correspondence

between this Service and the Government of

Queensland. In this regard the Queensland

National Parks and Wildlife Service has been

contacted and that organization has

requested that access be denied on the

grounds that disclosure would, or could

reasonably be expected to, cause damage to

relations between the Commonwealth and

Queensland. Section 33A(5) has been

considered but in this particular case it

has been determined that it is not

appropriate to apply this section."

6. At the Association's request, the decision to refuse access to documents containing correspondence between the ANPWS and the Government of Queensland was the subject of internal review pursuant to s. 54 of the FOI Act. The decision was affirmed. Upon being so apprised, the Association sought review of the decision by this Tribunal in proceedings N. 85/200. The ANPWS then reconsidered its position and, after consultation with the State of Queensland, as required by s. 26A of the FOI Act, Mr Gare determined on 2 July 1985 to grant access to the subject documents. Notice of the decision was given to the State of Queensland as required by s. 26A.

7. On 20 August 1985, the State of Queensland, the applicant, applied to the Tribunal for review of that decision. The reasons for the application were stated to be:

"(1) Access to such documents are inconsistent

with and impair the confidential

relationship between the State of Queensland

and a Department of the Commonwealth.

(2) The State of Queensland is concerned to

maintain the confidentiality of confidential

correspondence between the State of

Queensland or its officers, servants or

agents and officers of the Commonwealth."

8. The application by the State of Queensland was made out of time. Within the prescribed period of 28 days, the QNPWS applied to the Tribunal to review Mr Gare's decision. However, s. 26A of the FOI Act provides for the application to be made by the State of Queensland not by one of its authorities. The QNPWS was, not surprisingly, unaware of the correct method of making such an application. An application for review, properly signed on behalf of the State of Queensland, was not executed until 20 August 1985. The application for an extension of time to make the application was opposed by the Association, principally upon the ground that the Association wanted the information contained in the subject documents as soon as possible. However, the Tribunal extended the time so as to validate the late lodged application. In an area of jurisdiction such as this, where time limits are seldom of crucial significance and where applicants are frequently unfamiliar with the formalities to be complied with, the Tribunal exercises its power to extend time in a benign manner. In the present case, moreover, the nature of the issue to be considered, damage to inter-governmental relations, justified the extension of time in the public interest. We respectfully adopt the general principles with respect to extension of time which were enunciated by Wilcox J in Hunter Valley Development Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305 at 310-12, though we would add thereto a reference to the observation of Reynolds, Hutley and Bowen, JJA, in Outboard Marine Australia Pty Ltd v Byrnes; Bauknecht (Third Party) (1974) 1 NSWLR 27 at 30 that,

"It is also appreciated that where genuine issues

ought to be litigated, if such can be done with

fairness to all concerned, it is appropriate to

take a benign view of applications to extend

time."

See also Re Levana Pty Ltd and Minister for the Capital Territory (A. 81/86, 15 February 1982).

9. When the hearing before the Tribunal commenced, 22 documents were the subject of the application. The ambit of the application was later narrowed when it became apparent that some documents were either already public or related not to the policy to apply to the export of koalas but to administrative aspects of the export of them by the applicant, the State of Queensland. However, one new document, which had been identified as being within the request for access, was added and numbered 23.

10. Accordingly, the Tribunal's task was reduced to deciding whether or not access should be granted to documents Nos. 1 to 9 inclusive, 11, 12, 13, 14, 17, 20 and 23.

11. The information in the documents falls into two broad categories: firstly, information relating to an application which the State of Queensland itself made to the appropriate federal Minister for permission to export koalas and, secondly, information relating to views expressed in the course of the development of guidelines for the export of koalas from Australia. Most but not all of the documents containing information of the first type were released prior to or during the review. The remaining documents containing information of that character are documents 8, 12 and 13. The other documents fall into the second category.

12. The relevant provision of the FOI Act is s. 33A, which provides, inter alia:

"33A.(1) Subject to sub-section (5), 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 relations between the

Commonwealth and a State; or

(b) would divulge information or matter

communicated in confidence by or on behalf

of the Government of a State or an authority

of a State, 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.

. . . . .

(5) This section does not apply to a document

in respect of matter in the document the

disclosure of which under this Act would, on

balance, be in the public interest."

13. The object of the FOI Act also has relevance. Section 3 provides:

"3.(1) The object of this Act is to extend as far

as possible the right of the Australian community

to access to information in the possession of the

Government of the Commonwealth by -

(a) making available to the public

information about the operations of

departments and public authorities

and, in particular, ensuring that

rules and practices affecting members

of the public in their dealings with

departments and public authorities

are readily available to persons

affected by those rules and

practices; and

(b) creating a general right of access to

information in documentary form in

the possession of Ministers,

departments and public authorities,

limited only by exceptions and

exemptions necessary for the

protection of essential public

interests and the private and

business affairs of persons in

respect of whom information is

collected and held by departments and

public authorities.

(2) It is intention of the Parliament that the

provisions of this Act shall be interpreted

so as to further the object set out in

sub-section (1) and that any discretions

conferred by this Act shall be exercised as

far as possible so as to facilitate and

promote, promptly and at the lowest

reasonable cost, the disclosure of

information."

14. With the agreement of the parties, the Tribunal was assisted by having made available to it, pursuant to s. 64(1) of the FOI Act, copies of the documents which the applicant claims should be exempt from disclosure.

15. In so claiming, the applicant submitted that disclosure would or could reasonably be expected to cause damage to relations between the Commonwealth and itself (s. 33A(1)(a)) and would divulge information or matter communicated in confidence by or on behalf of itself to the Government of the Commonwealth or to an authority of the Commonwealth (s. 33A(1)(b)). The applicant also submitted that disclosure of matter in the documents would not, on balance, be in the public interest (s. 33A(5)) and, hence, that the exemption should not be over-ridden by the public interest provision.

16. We may say at once that, in our opinion, documents in the first category, that is, documents containing information relating to the State of Queensland's own application for permission to export koalas, are not exempt under s. 33A. With respect to these documents, the State of Queensland was not in a position materially different from that of other applicants to the federal Minister for permission to export koalas. The ordinary incidents of federal administration, including the operation of the FOI Act, applied to the application. The documents of this nature are documents 8, a telex dated 13 May 1984, document 12, a telex dated 20 June 1984, save paragraph 4 thereof which contains information of the second category, and document 13, a telex dated 20 June 1984, save the last paragraph thereof which also contains information in the second category. These three documents, apart from the excepted paragraphs, were not confidential and their release cannot reasonably be expected to cause damage to relations between the Commonwealth and the State of Queensland.

17. With respect to documents containing information of the second category, the position is more difficult. We turn first to the issue raised by s. 33A(1)(b).

18. It is not in question that the documents contain information or matter communicated between an authority of the applicant, the QNPWS, and one of the authorities of the Commonwealth, namely, the ANPWS.

19. The nature of a confidential communication was examined by the Tribunal in Re Maher and Attorney-General's Department (1985) 7 ALD 731. At pp. 737-8, the Tribunal said,

"Sections 33(1)(b) and 45 (the general

confidentiality exemption) of the FOI Act are

concerned not only with communications which would

be protected by courts under the common law

principles with respect to express or implied

obligations of confidence or by courts of equity

with respect to communications made under special

relationships but also with information that was

communicated to an agency in confidence, that is

to say, information that was communicated and

received under an express or inferred

understanding that the communication would be kept

confidential. (Cf Re Witheford and Department of

Foreign Affairs (1983) 5 ALD 534, 542; Re Brennan

and The Law Society of the Australian Capital

Territory (No. 2) (1985) 8 ALD 10).

It is not to be expected that precedents can be

found in the legal authorities for all the types

of circumstance that meet that criteria. The

courts of common law require there to be an

express or implied duty of confidence, a breach of

which would give rise to an action for damages.

Courts of equity require a fiduciary or other

special relationship and for it to be established

that the information that was in fact communicated

was confidential and ought to be protected. In

the past, courts have not been much concerned with

communications to or between agencies of the

Commonwealth for, until the coming into operation

of the FOI Act in this country, the disclosure of

such information could be enforced only under the

principles established in the Crown privilege

cases (see, for example, Sankey v Whitlam (1978)

142 CLR 1). There are few precedents which deal

directly or even indirectly with the problem which

the Tribunal now has to consider.

It is clear, however, from such authorities as

there are, that a conclusion may be drawn that

information was communicated in confidence either

because of the particular relationship between the

parties or because the information communicated

was and would be recognised to be of a

confidential nature. The relationships of

solicitor and client, of doctor and patient, of

priest and penitent and of husband and wife are

special relationships of the type which prima

facie give rise to a relationship of confidence.

It has been recognised that communications between

a person seeking advice and an adviser may well

give rise to a relationship of confidence.

Negotiations may give rise to a confidential

situation. In the administrative field, it has

been recognised that communications within Cabinet

or between Cabinet and the Crown have a particular

element of confidentiality about them. In the

present case, the letter from Mr C S Stark,

Exhibit TC. 19, suggests that communications

between governments are to be treated as having a

special confidentiality about them."

"Moreover, as I have said, communications may be

made not under any express agreement or even any

necessarily implied agreement as to

confidentiality but pursuant to a general

understanding that communications of that nature

will be treated in confidence. Mr Stark's letter

states that Mr Civiletti's letter was written

subject to a 'tacit expression' that it would be

held in confidence. Such a statement is not

unexpected in communications of this nature. The

cases referred to in Re Howard and The Treasurer

of the Commonwealth of Australia make it plain

that there is a general understanding that

communications at the highest level of government

which are of a sensitive nature will be so

treated. It is equally to be expected that

sensitive communications between two governments

will be so regarded."

20. The present application appears to have arisen from a view on the part of the applicant that there was a tacit understanding that all communications between the applicant and its authorities and the Commonwealth and its authorities were confidential. We do not accept this view. There are many communications between authorities of the Commonwealth and authorities of the State of Queensland which are of a purely routine nature involving no sensitivity. We do not accept that there is any general understanding that all such communications are confidential.

21. Nor, in the present case, was any obligation as to confidentiality expressed or mutually understood. Evidence was given that, although the QNPWS regarded the communications as confidential, ANPWS did not.

22. Therefore, the issue is whether the circumstances of the communications were such as to give rise to an implied obligation as to confidentiality. The communications were between the ANPWS and the QNPWS, not between high levels of government. There does not seem to us to be anything in the relationship of the two Services which, in itself, would give rise to an implication of confidentiality.

23. The aspect that does give rise to a question as to confidentiality is the fact that much of the material in the communications concerned matters of policy with respect to the export of koalas. As was said in Re Howard and The Treasurer of the Commonwealth of Australia (1985) 7 ALD 626 and Re Maher, cited above, communications which take place in the course of the development of policy are recognised as being of a particularly sensitive character. This would be a very significant factor, save that the communications with respect to the development of the koala export policy were made by the ANPWS not only with the QNPWS but also with equivalent bodies in other States and with zoos and like organisations with an interest in and an expertise with respect to the export of koalas. No confidentiality was expressed in the correspondence and confidentiality would not have been inferred by at least those bodies that were not government authorities. Moreover, the ANPWS has not regarded the material as sensitive.

24. In the circumstances, although the issue is a difficult one, we have come to the conclusion that the nature of the bodies between whom the communications passed and the nature and subject matter of the communications did not give rise to an inference as to confidentiality that ought to have been understood by both the ANPWS and the QNPWS.

25. In our opinion, therefore, the exemption provided for by s. 33A(1)(b) does not apply to the subject documents.

26. But that is not an end to the matter, for we accept the evidence given on behalf of the applicant that the QNPWS entertained the communications with respect to policy with the understanding on its part that the communications were confidential. It was submitted, in these circumstances, that the release of the documents by the Commonwealth under the FOI Act could reasonably be expected to cause damage to the relations between the Commonwealth and the State of Queensland.

27. The principles to be applied with respect to a like provision to s. 33A(1)(a) were discussed in Re Maher, cited above, at p. 742, as follows:

"Mr Maher correctly submitted that s 33(1)(a)(iii)

has in mind that disclosure would or could

reasonably be expected to cause actual and

significant damage to relations between Australia

and another country. Those were not his precise

words but that was the purport of the submission.

I accept that the mere possibility of damage is

not sufficient. However, I do not accept that it

is necessary to find loss or damage which can be

proved in monetary terms. The phrase 'damage to

international relations of the Commonwealth'

comprehends intangible damage to Australia's

reputation, though such damage may be difficult to

assess. International relations have never been

matters easy to define or to quantify. Regard

must be had, inter alia, to the relationships

between particular persons in one government and

persons in another. Damage to personal

relationships may cause considerable harm for a

time at least.

I accept that it must be shown that the

publication of a document claimed to be exempt

could reasonably be expected to cause damage to

the international relations of the Commonwealth.

A mere allegation to that effect is not enough.

There must be cause and effect which can

reasonably be anticipated. But if it can

reasonably be anticipated that disclosure of the

document would lessen the confidence which another

country would place on the Government of

Australia, that is a sufficient ground for a

finding that the disclosure of the document could

reasonably be expected to damage international

relations. Trust and confidence are intangible

aspects of international relations."

28. In an affidavit, Mr P.T. Smith, Director of the Inter-Governmental Relations Division of the Premier's Department of the State of Queensland, said, inter alia,

"2. The Queensland Government is concerned about

inter-Governmental communications being made

public under the Freedom of Information Act as

such action will impede the exchange of ideas and

information in writing between agencies of the

Commonwealth and the State of Queensland because

the Queensland Government and its agencies will be

reluctant to commit in writing anything that it

does not want made public.

3. There is already a difference of views between

the Government of Queensland and the Australian

Government as to the effects of the operation of

the Freedom of Information Act on

Commonwealth-State

communications and if private confidential

communications between agencies are to be made

public this will exacerbate this difference.

4. I am instructed that the said documents were

intended by the Queensland Government to be

communications between the Queensland agency and

the Commonwealth agency which were not to be made

public and that the contents of the communications

have not been made public by the Queensland

Government.

5. It is the view of the Queensland Government

that the disclosure of such documents or any of

the contents thereof would be contrary to the

public interest in that it would or could

reasonably be expected to cause damage to

relations between the Commonwealth of Australia

and the State of Queensland."

29. In his oral evidence to the Tribunal, Mr Smith gave this evidence:

"Well, how can you come along to this court and on

your oath say without hesitation, without any

qualification, and say in paragraphs 2, 3

etcetera, through here, that there will be damage.

There may not be damage at all, might there? - - -

What I said was that the recommendation has not

been made as to what will happen in future. I

agree with what I said here, that if

inter-governmental correspondence cannot be

conducted on the basis of confidentiality, then

the system falls down.

. . . . .

The whole system of governmental relations is

going to break down because of 22 documents on

koala bears? - - - Yes, because the departments will

be reluctant - in future governments will be

reluctant to put these views in writing.

. . . . .

So really it is still hypothetical as to what is

the damage that is going to be done, is not it.

You do not know what is going to happen because -

if the documents are released. You have this fear

that there might be but you do not know? - - - Yes.

As I explained to you before, because of the

release of documents - because of the fear of the

release of documents already action has been taken

in a number of areas and I cited one case to you

where a ministerial council is not making a

transcript of proceedings.

. . . . .

Yes, all right. Well, now, you say that the

development of conditions for the export of koalas

was the development of a policy with respect to

the export of koalas and therefore that that was

something within that policy criteria you have

just mentioned? - - - Yes, sir. Well, as you see from

the documents, the Queensland Government was

commenting as the policy was developed.

Yes. And do you then say that the Queensland

Government would have regarded its views on that

policy as confidential? - - - Yes."

30. We are persuaded by Mr Smith's evidence. In our opinion, in the light of it, a disclosure against the wishes of the applicant of the subject documents which were understood by the QNPWS to be confidential could reasonably be expected to cause damage to relations between the Commonwealth and the State of Queensland.

31. It must be remembered that the FOI Act is a Commonwealth enactment. The State of Queensland has no similar legislation. Therefore, the attitude which the Government of the State of Queensland takes with respect to the release of documents is different from that taken by the Government of the Commonwealth. It is necessary to have regard to such differences in attitude and to respect the view of the State of Queensland that communications with its authorities which, under the laws and practices of Queensland, would not be released to the public ought not readily be made available to the public under Commonwealth legislation. Failure to respect this view could well lead to a diminishment in the co-operation between the State of Queensland and its authorities with the Commonwealth and its authorities.

32. We now turn to the question of public interest. Section 33A(5) of the FOI Act requires that it be considered. On this aspect, the Association relied upon an affidavit by Dr Russell Keith Dickens, a veterinary surgeon, who is concerned with koala diseases. The affidavit said that:

(a) There is a deficiency in veterinary

knowledge and care of koalas which places

exported animals at risk when in need of

medical care overseas.

(b) The current standards of husbandry and care

in transporting the animals during the

export process, including the practice of

placing koalas in quarantine, imposes great

stress upon them.

(c) There is a lack of information available to

the public on the source of exported animals

and the location of the colonies from which

the animals are originally collected. This

information is becoming of increasing

importance as the wild koala population

continues to decline.

(d) The lack of information on the export of

koalas generally causes members of the

veterinary community difficulties in their

work and hampers research.

(e) It is in the public interest that

information on the export of koalas be made

available to assist in improving the level

of veterinary knowledge and the standards of

husbandry and care in exporting koalas.

33. No evidence was led to contest these assertions. However, the evidence has to be considered together with the contents of the subject documentation, a course which was not open to Dr Dickens but which the Tribunal has been able to undertake.

34. In the view of the Tribunal, scientists such as Dr Dickens would find, in the documentation, little which would aid them in finding solutions to the problems of which Dr Dickens spoke. What is of most concern to the scientists is the policy to be applied to the export of koalas and how, if necessary, it can be improved. The current policy is already known to them and, in the Tribunal's view, an understanding of it would not be appreciably assisted by knowing what occurred between the QNPWS and the ANPWS in the period of inter-governmental consultation which preceded the introduction of the policy. We do not find in the documents any matter which would be of appreciable use to scientists.

35. Nor is there any matter in the documents that ought otherwise to be disclosed in the public interest. The documents do not show other than that the two Services were proceeding to fulfil their tasks in the best interests of Australia and of koalas.

36. There is thus no matter favouring disclosure in the public interest other than the public interest referred to in s. 3 of the FOI Act. In our opinion, this aspect of the matter is outweighed by the damage to Commonwealth/State relations which may result in the disclosure of these documents. If the release of documents could reasonably be expected to cause damage to Commonwealth/ State relations, there would need to be some exceptional countervailing reason to justify disclosure in the public interest. There is no such reason in the present case.

37. For the reasons we have given, therefore, we are of the view that the documents, other than document 8, document 12, excepting paragraph 4 thereof, and document 13, excepting the last paragraph thereof, are exempt pursuant to s. 33A(1)(a). We shall affirm the decision under review so far as document 8, document 12, excepting paragraph 4 thereof, and document 13, excepting the last paragraph thereof, are concerned, but shall otherwise set aside the decision under review.