Kant v Chief Executive Officer of the National Anti-Corruption Commission [2026] FCA 13

1. On 3 June 2024, the applicant made a request under s 15 of the FOI Act for access to "all records with information about the report I submitted to [the Commission] with 'reference/webform ID' 2023111454442-8117". The identification number related to the referral made by the applicant to the Commission on 14 November 2023 in relation to the Commonwealth Ombudsman.
2. On 5 June 2024, the applicant clarified that he sought access to the Commission's record of his report, any internal correspondence concerning the report or the Commission's response to the report, and any other records containing information about the report (other than the email that was sent to him by the Commission on 12 December 2023).

1. On 5 July 2024, the Commission advised the applicant that three documents had been identified as falling within the scope of the FOI request. An FOI officer decided to grant partial access to two documents, and to refuse access to Document 3 (the access refusal decision). The documents were described as follows in Attachment B to the reasons for decision:

(a) "Document 1 - Allegation details", which was released with redactions in respect of exempt matter under ss 47C, 47E(d) and 47F(1);

(b) "Document 2 - Web form details"; which was released with redactions in respect of exempt matter under s 47E(d); and

(c) "Document 3 - Status of matters", to which access was refused pursuant to the exemptions in ss 47C and 47F.

1. Document 1 addresses the outcome of the applicant's referral to the Commission in relation to a decision of the Commonwealth Ombudsman. The document records a decision made on 11 December 2023 that the referral was "Out of Jurisdiction". After stating that "[t]he referrer [i.e. the applicant] indicated that he is unconvinced that the Commonwealth Ombudsman could have reached the decision they did if they had read the documents/information provided to them by the referrer", Document 1 proceeds to summarise the decision on the referral as follows:

• The referrer noted that this matter was previously referred to ACLEI [the Australian Commission for Law Enforcement Integrity] and that the ACLEI noted that the [REDACTED: s 47C - Deliberative processes]
• The referral expresses a disagreement with an administrative decision and does not detail a clearly identifiable allegation of corrupt conduct relevant to the decision.
• The referral thus represents a dispute with an administrative decision and is not within the jurisdiction of the Commission.
• Out of Jurisdiction is the appropriate decision in this case.
• (Emphasis in original.)

1. In addition to the redactions under s 47C of the FOI Act, Document 1 was also redacted to remove exempt matter under s 47E(d) in respect of the operations of an agency and under s 47F in respect of personal information.
2. Document 2 is headed "Information from Web Form", and sets out responses given by the applicant to various questions when he submitted his online report to the Commission on 14 November 2023, which was identified as "Webform ID: 2023111454442-8117". The applicant named the Office of the Commonwealth Ombudsman as the entity to which his submission was most related, and relevantly stated:

Where did the alleged conduct take place.: Country: Australia

Who was involved?: I do not know the identities of those involved: I don't want to say:

In your view, which, if any, of the following categories best describes the alleged conduct?: Abuse of regulatory process

Describe the alleged conduct.: The Commonwealth Ombudsman provided a decision on a complaint such that could not be believed to be correct by any person who read the relevant documents and understood their content. The officer of the Commonwealth Ombudsman who provided this decision then confirmed having read the documents.

Tell us why you think this is corrupt conduct.: The Commonwealth Ombudsman could not have formed the view expressed in the decision on the information that was purportedly read and understood (I don't believe I requested confirmation of understanding per se, but I expect it's implied in asking whether the documents were read). To state that one has formed a view as expressed by the Commonwealth Ombudsman, on reading (and having understood the content of) the documents as were claimed to be read, is to provide false information. The true purpose of Commonwealth Ombudsman's providing the decision is inapparent, but existence of some improper purpose must be inferred.

Do you have evidence/additional information?: Yes

Briefly describe the type of evidence/additional information you have.: I have an FOI outcome letter telling me that the Commonwealth Ombudsman refuses to provide me with access to relevant records. You (the NACC) have some of the same documents that were considered by the Commonwealth Ombudsman in deciding that the administrative decision I referred to them was reasonable. Note that ACLEI expressed a view that the person who made the relevant administrative decision had likely erred, rather than having deliberately set out to cause harm. Refer to FOI 23/16.

1. Document 3, which has now been voluntarily produced by the Commission, comprises an email exchange between officers of the Commission in relation to the applicant's referral with the subject matter "FOR ACTION: CASES TO CLEAR". In an email sent on 11 December 2023, a "Triage Officer" named "Alex" advised another officer of the Commission named "Georgina" as follows:

• CASE20231953 I revised to dissatisfaction with rather than a dispute, removed the sentence about ACLEI and the Commission have now said the same thing so don't make another referral about this (you wrote it much more nicely!) and started that par with "Consistent with our advice," instead. Not as direct as you might have liked. Also deleted the last sentence as it was a duplicated sentiment. Sent and closed.

1. This case entry appears to relate to the contents of the response that was sent to the applicant by email on 12 December 2023 from the "Intake and Triage" team at the Commission. The email relevantly stated:

Thank you for contacting the National Anti-Corruption Commission (the Commission) on 14 November 2023.

Your report appears to relate to dissatisfaction with an administrative decision. In your case, a decision made by the Commonwealth Ombudsman. A dispute about an administrative decision does not necessarily raise a corruption issue. A report must include information a person has engaged, is engaging or will engage in corrupt conduct for the National Anti-Corruption Commission (the Commission) to have jurisdiction. This information has not been established from your report and therefore the Commission is unable to take any action.

The National Anti-Corruption Commission Act (2022) (Cth) (the Act) defines corrupt conduct to mean situations where:

• a public official does something that breaches the public trust (which means using official powers for an improper purpose)
• a public official abuses their office as a public official (which means using their position for the purpose of improperly gaining a benefit for themselves or improperly causing a detriment to someone else)
• a public official misuses information they have access to in their capacity as a public official, or
• any person (whether or not they are a public official) does something or tries to do something that might cause a public official to carry out their duties in a dishonest or biased way.

Further information can be found here: https://www.nacc.gov.au/reporting-and-investigating-corruption/whatinvestigate.

Consistent with our advice, we note that you stated that information relating to this matter was considered by the former Australian Commission for Law Enforcement Integrity (ACLEI) and they determined that it did not raise a corruption issue.

This matter is now closed. Should additional information become available to support an allegation of corrupt conduct, please submit a new report at nacc.gov.au. Information about the service you can expect from us can be found in our Service Charter: https://www.nacc.gov.au/reporting-and-investigating-corruption/service-charter.

1. In written reasons for the primary FOI decision, the FOI officer made the following findings in relation to the exemption under s 47C of the FOI Act.

(a) Document 1 and Document 3 contained deliberative matter that was conditionally exempt under s 47C, which involved "the weighing and evaluation of information received by the Commission on a possible corruption issue and consideration of the appropriate course of action" and "internal decision-making processes and workflows". The officer was satisfied that the affected material did not include operational information or purely factual material for the purposes of s 47C(2), and was not in the form of a report or formal statement of reasons within the meaning of s 47C(3).

(b) The officer found that giving access to the deliberative matter in Documents 1 and 3 would, on balance, be contrary to the public interest for the purposes of ss 11A(5) and 31B of the FOI Act.

(i) The officer identified the following factors favouring disclosure:

• Granting access would promote the objects of the FOI Act in that it would:

• reveal background and contextual information that informed government decision-making, and
• enhance the scrutiny of decision-making within a government agency.

(ii) The officer identified the following factors against disclosure:

• Disclosure could reasonably be expected to prejudice the Commission's performance of its functions.
• Disclosure could reasonably be expected to prejudice the Commission's ability to obtain confidential information and similar information in the future.
• The possibility of such information being disclosed could reasonably be expected to inhibit frankness and candour of staff members providing their opinions and advice.

(iii) The officer weighed the factors favouring disclosure and the factors against disclosure:

I accord little weight to the factor favouring disclosure. The affected material does not concern matters of significant public interest. The internal deliberations on how the Commission deals with referrals of corrupt conduct is a part of the Commission's ordinary processes. While the material may provide some insight into how the Commission deals with referrals, releasing it would not provide any further information than what is already published on the Commission's website. I note that the documents contain a record of the final decision made in relation to your referral and that this is being provided to you.

I attribute considerable weight to the factors against disclosure. I consider that if there was a possibility that deliberations regarding referrals of corrupt conduct are disclosed, staff members and advisors would be less inclined to provide frank and candid opinions about such matters.

This impedes the Commission's ability to detect, prevent and investigate corruption which are the Commission's statutory functions and therefore of significant public interest.

I am satisfied that the factors against giving access outweigh those in favour.

1. The FOI officer made the following findings in relation to the exemption under s 47E(d) of the FOI Act:

(a) Documents 1 to 3 included information that was not publicly available relating to the Commission's information technology (IT) systems, the disclosure of which would have an adverse effect on the proper and efficient conduct of the operations of the Commission, which was conditionally exempt under s 47E(d). In particular, the officer found that the disclosure of such information could reasonably be expected to adversely affect "the security of the Commission's information technology, record-keeping systems and protocols", "the efficiency with which the Commission assesses and otherwise deals with communications from the public", and "the ability of the Commission to carry out its legislative functions, including how it detects and prevents corrupt conduct, by revealing its methods and potentially causing prejudice and inefficiencies". The officer was satisfied that such adverse effects would be "substantial", because "it could be reasonably expected to affect the capacity of the Commission to fulfil its legislative functions, including detecting corrupt conduct and dealing with corruption issues".

(b) The officer found that giving access to the relevant material would, on balance, be contrary to the public interest for the purposes of ss 11A(5) and 31B of the FOI Act.

(i) The officer identified the following factor favouring disclosure:

• Granting access would promote the objects of the FOI Act in that it would:

• enhance the scrutiny of government decision-making.

(ii) The officer identified the following factor against disclosure:

• Disclosure could reasonably be expected to prejudice the Commission's law enforcement and other functions, including by diverting resources from the Commission's day-to-day operations to deal with the adverse effect that release of the information is reasonably expected to have.

(iii) The officer weighed the factors favouring disclosure and the factors against disclosure:

I accord little weight to the factor favouring disclosure. The material does not concern matters of significant public interest.

I attribute considerable weight to the factor against disclosure. I consider that if the information is released, the operations of the Commission could be adversely affected by being required to, for example, implement new IT system security measures and provide training for staff in how to use such new IT products.

This additional work would be an unreasonable burden on the Commission and could delay the performance of core functions to an extent that would be unreasonable and not in public interest.

I am satisfied that the factor against giving access outweighs the one in favour.

1. The FOI officer made the following findings in relation to the exemption in s 47F of the FOI Act.

(a) Documents 1 to 3 contained personal information relating to individuals which was conditionally exempt under s 47F, in that staff members of the Commission were referred to by name.

(b) For the purposes of s 47F(2), the officer found that the personal information was not well known, the persons were not generally known to be (or to have been) associated with the matters dealt with in the documents, and that the information was not available from publicly accessible sources.

(c) The officer found that giving access to the personal information would, on balance, be contrary to the public interest for the purposes of ss 11A(5) and 31B of the FOI Act.

(i) The officer identified the following factor favouring disclosure:

Of the factors favouring disclosure, I consider that the release of the conditionally exempt material identified for your request would promote the objects of the FOI Act, including by:

• informing the community of the Government's operations, and
• enhancing the scrutiny of government's decision making.

(ii) The officer identified the following factors against disclosure:

I consider the release of the conditionally exempt material could reasonably be expected to prejudice:

• the protection of an individual's right to privacy and their safety and wellbeing, and
• security, public safety and the interests of individuals.

(iii) The officer weighed the factors favouring disclosure and the factors against disclosure:

I attribute considerable weight to the factors against disclosure. I consider that the disclosure of the information could impact the personal privacy of public servants and other concerned persons.

The disclosure of staff names and contact details could also compromise the wellbeing and safety of staff members of the Commission who are performing law enforcement functions.

On balance, I consider the factors against disclosure outweigh those in favour. I consider that there is limited public interest in the disclosure of names and contact details of individual public servants. In contrast, there is a real risk of damage to the personal privacy of those individuals and a potential for detriment to the performance of the Commission's functions. I am of the view that this carries greater public interest.

1. The FOI officer decided that it was possible to provide an edited copy of Document 1 and Document 2 with the deletion of exempt matter pursuant to s 22 of the FOI Act. However, the officer refused to grant access to Document 3.

1. By email dated 6 July 2024, the applicant sought internal review of the access refusal decision under Part VI of the FOI Act. Among other things, the applicant stated that his referral to the Commission was "a report of alleged offence(s) against Chapter 7 of the Criminal Code by one or more Commonwealth public officials", which amounted to "corrupt conduct" within the NACC Act. The applicant contended that the publication of information about the deliberative processes and senior public officials was in the public interest.
2. On 5 August 2024, an FOI officer decided to vary the access refusal decision under s 54C of the FOI Act (the internal review decision).

(a) The officer decided that the conditional exemption in s 47C had been erroneously applied to Document 1. Access was therefore given to an amended edited copy of Document 1 without any redaction in relation to deliberative matter within the meaning of s 47C.

(b) In relation to Document 3, the officer decided that, in addition to deliberative matter that was exempt under s 47C and personal information of staff members that was exempt under s 47F, the contact details of staff members were also conditionally exempt under s 47E(d) (in relation to the operations of agencies) and that the public interest weighed against disclosing the document on that basis.

(c) The officer otherwise affirmed the access refusal decision and adopted the reasons for that decision.

1. The amended edited copy of Document 1 reinstated a paragraph that had previously been redacted pursuant to the exemption in s 47C of the FOI Act, the contents of which reproduced the applicant's description of the alleged conduct the subject of his report to the Commission, namely:

The Commonwealth Ombudsman provided a decision on a complaint such that could not be believed to be correct by any person who read the relevant documents and understood their content. The officer of the Commonwealth Ombudsman who provided this decision then confirmed having read the documents.

The amended Document 1 also restored the balance of the first dot point under the heading "Analysis and Decision" (see paragraph [9] above), as follows:

• The referrer noted that this matter was previously referred to ACLEI and that ACLEI noted that the CO official likely made an error rather than engaging in corrupt conduct.

1. The FOI officer found that Document 3 contained deliberative matter relating to the functions of the Commission within the meaning of s 47C, and that giving access to the document would be contrary to the public interest for the following reasons:

Although disclosure of the material may provide information about how the Commission deals with corruption referrals, in my assessment the factors against disclosure strongly outweigh the factors in favour of disclosure.

I consider that the following factors weigh against disclosure of the material:

• The relevant content does not concern matters of significant public interest. The material relates to a specific corruption referral, and information contained in the documents relating to the outcome of the referral have been disclosed to you.
• Disclosure could reasonably be expected to prejudice the performance of the Commission's functions under the National Anti-Corruption Commission Act 2022 (Cth), particularly relating to the evaluation and processing of possible corruption issues.
• Internal deliberations disclosing how the Commission deals with referrals of corrupt conduct is a part of the Commission's ordinary processes. I agree that the possibility of such information being disclosed could reasonably be expected to inhibit frankness and candour of Commission staff providing their opinions and advice while performing their duties.
• Disclosure could reasonably be expected to prejudice the Commission's ability to obtain confidential information and similar information in the future.

I am of the view that these factors, particularly the likelihood that disclosure of deliberations regarding corruption referrals may result in staff being less inclined to provide frank and open opinions about these matters, would impede the Commission's ability to properly and efficiently assess corruption referrals, and to detect and investigate corruption which are the Commission's statutory functions, and is therefore of significant public interest.

I am satisfied that the factors against giving access outweigh those in favour. I am of the view that access should not be given to the relevant material in document 3 on the basis that it is conditionally exempt pursuant to section 47C and giving access would be contrary to the public interest, pursuant to section 11A(5) of the FOI Act.

1. The FOI officer affirmed the finding in the access refusal decision that the disclosure of information in Documents 1 and 2 relating to the Commission's IT systems would have a substantial adverse effect on the proper and efficient conduct of the operations of the Commission within the meaning of s 47E(d). The officer found that giving access to this material would be contrary to the public interest for the following reasons:

I consider that a relevant factor in favour of disclosure may be that granting access would promote the objects of the FOI Act in that it could enhance the scrutiny of government decision-making.

However, the information in question relates to the Commission's information technology systems. This information does not relate to matters of common concern or relevance to the public, and nor is it of significant public interest.

In my assessment the factors against disclosure strongly outweigh any factors in favour of disclosure.

I agree with the FOI decision that if the information is released, the Commission's operations would be adversely affected by being required to, for example, implement new IT system security measures and provide training for staff in how to use new IT products and processes. There could also be a need for the Commission to undertake additional safeguarding work to counter the cybersecurity risks associated with internal system links and similar information being released.

This additional work would be an unreasonable burden on the Commission and could delay the performance of its primary statutory functions to an extent that would be unreasonable and not in the public interest. As a consequence, disclosure could reasonably be expected to prejudice the Commission's law enforcement and other functions, including by diverting resources from the Commission's day-to-day operations to deal with the adverse effect that release of the information is reasonably expected to have.

1. In addition, the FOI officer found that the contact details of staff members contained in Document 3 were conditionally exempt under s 47E(d):

The Commission, like other government agencies, maintains policies over the disclosure of internal contact information for various purposes, including ensuring the efficiency of agency operations. The Commission coordinates public communication through dedicated public email, phone contacts and a webform. This allows the Commission to deal with contacts in one place, rather than have members of the public contact specific teams or individual staff members which can lead to inconsistencies, inefficiencies and critical information being missed.

Disclosure of this information would therefore have an adverse effect on the proper and efficient conduct of the operations of the Commission. It could reasonably be expected to adversely affect the efficiency with which the Commission assesses and otherwise deals with communications from the public.

I am satisfied that the adverse effect would be 'substantial'. That is because it could be reasonably expected to affect the capacity of the Commission to fulfil its statutory functions, including detecting corrupt conduct and dealing with corruption issues.

1. In finding that giving access to such information would be contrary to the public interest, the FOI officer stated:

Of the factors favouring disclosure, one is relevant: promoting the object of the FOI Act by revealing information about the Commission's decision-making.

However, there is a significant public interest in the proper and efficient administration of the Commission's functions. I consider that if the information is released, the operations of the Commission could be adversely affected by being required to set up new internal email accounts and procedures following release of internal contact details (which could reasonably be used by members of the public to contact the Commission if released).

In addition, there could be a need for the Commission to undertake additional safeguarding work to counter the cybersecurity risks associated with internal email addresses being released. This additional work would be an unreasonable burden on the Commission and could delay the performance of its core functions to an extent that would be unreasonable and not in the public interest.

1. The FOI officer also affirmed the finding that the personal information of current staff members of the Commission contained in Documents 1 and 3 was exempt under s 47F. The officer took into account that the personal information was not well-known or available on publicly accessible sources, and that the persons concerned were not known to be associated with the matters dealt with in the documents. The officer also took into account the risk that the staff members may be contacted, which might undermine their safety and affect their ability to efficiently carry out their current duties and responsibilities. The officer considered that this could reasonably be expected to have a substantial adverse effect on the relevant staff members and the management of staff within the Commission.
2. The FOI officer was satisfied that providing access to such personal information would be contrary to the public interest:

I consider that relevant factors favouring disclosure may be that granting access would promote the objects of the FOI Act.

However, the personal information contained in the documents do not concern matters of significant public interest. I do not consider that the disclosure of the names and contact details of staff members would shed any light on the workings of the Commission, inform the public of the Commission's operations or enhance scrutiny of the Commission's decision making. Disclosure would not enhance public accountability or transparency of the Commission's operations or processes.

I consider the release of the conditionally exempt material could reasonably be expected to prejudice:

• the protection of staff members' right to privacy and their safety and wellbeing, and
• security, public safety and the interests of staff members.

I consider that the disclosure of the information could impact the personal privacy of public servants. The disclosure of staff names and contact details could compromise the well-being and safety of Commission staff members who are performing law enforcement functions.

On balance, I consider the factors against disclosure outweigh those in favour. There is very limited public interest in the disclosure of the personal information of public servants. In contrast, there is a real risk of damage to the personal privacy of those individuals and a potential for detriment to the performance of the Commission's functions.

1. It is clear from the relief sought in the originating application (a "prerogative or statutory writ, or an order of like nature" requiring the Commission to release Document 3) that the applicant only challenges the internal review decision in so far as it refused access to Document 3. The applicant does not seek any relief in relation to the application of ss 47E(d) and 47F to Documents 1 and 2, or the decision to give access to edited copies of those documents with redactions in respect of exempt matter.
2. The originating application claims relief "[o]n the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules". The applicant did not file a statement of claim. While the originating application was accompanied by the affidavit of the applicant affirmed on 6 August 2024, that affidavit simply exhibited copies of the access refusal decision, the request for internal review, and the internal review decision, and did not identify any grounds on which the applicant challenged the refusal to give access to Document 3.
3. In order to ascertain the grounds of review on which the applicant seeks to rely, it is necessary to refer to his written submissions dated 21 October 2024. The following matters were raised in those submissions.

(a) Under the heading "A matter of government and politics", the applicant submitted that the Commission's response to his "disclosure" under the NACC Act was intended to cause him "detriment" (within the meaning of s 29(2) of the NACC Act) and amounted to a "reprisal" against him (within the meaning of s 29(1) of the NACC Act). The applicant alleged that the Commission had acted with "spectacular incompetence" and with "criminal purpose" in providing that response.

(b) The applicant submitted that the Commission's response involved information about government and political matters within the implied freedom of political communication recognised in Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1. He submitted that "[t]he freedom of the Australian people to discuss governments and political matters circumscribes the legislative powers conferred on the Parliament by the Constitution" and that "any restrictions on freedom of discussion must be appropriate and adapted to the fulfilment of that purpose".

(c) The applicant disputed the accuracy of several references in the internal review decision to paragraphs in the guidelines issued by the Information Commissioner under s 93A of the FOI Act (the FOI Guidelines).

(d) The applicant alleged that the decision to refuse access to Document 3 pursuant to ss 47C, 47E(d) and 47F of the FOI Act was "unreasonable".

(e) The applicant submitted that it was in the public interest that the names of the officers of the Commission involved in producing the response to his report under the NACC Act should be publicly disclosed.

(f) The applicant alleged that each of ss 47C, 47E, 47F(2), (3), (5) and 93A of the FOI Act (together with the FOI Guidelines) "impermissibly curtails common law freedoms communication [sic]" and "impermissibly curtails a constitutional freedom of political communication".

(g) The applicant alleged that each of ss 47C, 47E, 47F(3), (5) and 93A of the FOI Act (together with the FOI Guidelines) "impermissibly circumvents a constitutional requirement of responsible government".

(h) The applicant submitted that each of ss 47C(1), 47E and 47F(1) of the FOI Act "must be read to exclude documents such as Document 3", so as not to exceed the legislative power of the Commonwealth Parliament.

(i) The applicant submitted that s 93A of the FOI Act was in excess of the legislative power of the Commonwealth Parliament.

(j) The applicant submitted that the Commission's refusal to give access to Document 3 was unlawful or without lawful grounds, on the basis that ss 47C(1), 47E and 47F(1) of the FOI Act were unconstitutional and beyond power, or were to be construed to exclude documents such as Document 3.

1. I note that the applicant's written submissions also contain a paragraph stating that "[e]very person is a person entitled to carry on the occupation of social worker insofar as it involves 'provision of care for the physical or mental health of people'". This submission does not appear to have any relevance to the present matter, and I will proceed on the basis that it has been inadvertently included in the applicant's submissions.
2. In support of the application, the applicant relies on an affidavit affirmed on 6 August 2024, and two further affidavits affirmed on 14 October 2024, together with his written submissions dated 21 October 2024 and reply submissions dated 25 November 2024.
3. The respondent relies on an affidavit of Jonathon Charles Hutton affirmed on 19 September 2024 and an affidavit of Centaine Alexandra Mumford affirmed on 22 November 2024 (the Mumford affidavit), together with written submissions dated 22 November 2024.
4. Prior to the first case management hearing, the Commission offered to produce to the applicant a copy of Document 3, with redactions in respect of the surnames and contact details of officers of the Commission and the three unrelated referrals that are discussed in the emails, on the condition that he agree to discontinue the proceeding. In a letter dated 16 September 2024, the solicitors for the Commission informed the applicant that, if he remained unsatisfied after receiving the redacted version of Document 3, he would still be able to apply to the Information Commissioner for merits review of the internal review decision under Part VII of the FOI Act: see s 54L(2)(b).
5. The applicant did not consent to the orders that were proposed by the Commission to give effect to this offer. Instead, orders were made for the parties to file written submissions and evidence, and for the originating application to be determined on the papers.
6. Subsequently, on 20 November 2024, the Commission voluntarily produced the redacted copy of Document 3 on an "administrative access basis".

1. From a practical viewpoint, the dispute remaining between the parties is limited in scope. The applicant's challenge relates only to the decision to refuse to give access to Document 3. The Commission has now provided to the applicant a redacted copy of that document, reserving its right to maintain exemptions under ss 22, 47C, 47E(d) and 47F of the FOI Act in respect of irrelevant material relating to other referrals and the surnames and contact details of officers of the Commission. Accordingly, while the subject of the application for judicial review is the internal review decision, the real dispute concerns the subsisting redactions in the copy of Document 3 that has been produced by the Commission.
2. The applicant presses for the public disclosure of the names of the officers of the Commission who were involved in producing the response to his report under the NACC Act. However, his written submissions (which were filed prior to the Commission's voluntary production of Document 3) did not directly engage with the redaction of information that would reasonably be regarded as irrelevant to the access request for the purposes of s 22 of the FOI Act, namely, the discussion in the email chain about other unrelated cases before the Commission. The application of s 22 in respect of irrelevant matter in Document 3 was not addressed in the internal review decision, because the FOI officer decided that the public interest weighed against disclosing that document in full, and refused to give access to the document.
3. At the case management hearing, the applicant said that he was seeking access to the full document, including "[a]ll the information including the surnames of officers and their contact details, in particular, any senior officers and the information about the other referrals, whatever those are". In so far as this encompasses information about other referrals, the applicant's position is difficult to reconcile with the terms of his request for access under s 15 of the FOI Act, which was directed to documents comprising "all records with information about the report I submitted to NACC with 'reference/webform ID' 2023111454442-8117".
4. Any information in Document 3 about other referrals made to the Commission by different persons concerning unrelated matters would fall outside the terms of the applicant's FOI request. In such circumstances, it would be open to the Commission to decide that "to give access to the document would disclose information that would reasonably be regarded as irrelevant to the request for access" (s 22(1)(a)(ii)), which would give rise to a question whether it is possible and reasonably practicable to give access to an edited copy that does not disclose any such information (s 22(1)(b)(ii)). However, the potential application of s 22 of the FOI Act would ultimately be a matter for the Commission, and is beyond the scope of any relief that can be granted by this Court on judicial review of the internal review decision.
5. The fact that the Commission has now produced a redacted copy of Document 3 nevertheless informs the issues raised in the current proceeding. Among other things, the Commission no longer maintains the claimed exemption under s 47C in respect of "deliberative matter" relating to the applicant's referral under the NACC Act. Section 47C is only invoked as an alternative basis on which to redact information about other unrelated cases, if such information were not redacted as irrelevant matter under s 22 of the FOI Act. This should be borne in mind when considering whether and to what extent there is a live issue in the current proceeding concerning the application of s 47C.
6. The issues arising for determination may be summarised as follows:

(a) whether the Court should exercise its discretion to refuse to grant relief on the basis that an adequate alternative remedy is or was available to the applicant by way of an application for merits review by the Information Commissioner;

(b) whether the internal review decision in relation to Document 3 was legally "unreasonable" in the requisite sense; and

(c) whether the FOI officer erred by relying on incorrect paragraphs of the FOI Guidelines, or otherwise failed to have regard to the FOI Guidelines as required by s 93A of the FOI Act;

(d) whether any of ss 47C, 47E, 47F or 93A of the FOI Act (together with the FOI Guidelines), in their application to the facts of the present case, exceed the legislative power of the Commonwealth Parliament on the grounds that:

(i) they curtail "common law freedoms" in relation to communication;

(ii) they impose an unjustified burden on the implied freedom of political communication; or

(iii) they "circumvent" an asserted "constitutional requirement of responsible government".

1. The applicant has given notices under s 78B of the Judiciary Act which relevantly stated:

Nature of Constitutional matter

The proceeding is judicial review of a decision under Freedom of Information Act 1982 to refuse access to records concerning evaluation and decision-making by the National Anti-Corruption Commission in relation to information it received about a possible corruption issue.

Facts showing that section 78B Judiciary Act 1903 applies

1. a posteriori sections 47C, 47E, 47F & 93A Freedom of Information Act 1982 are ultra vires the Constitution.

1. Despite the use of the phrase "a posteriori" - i.e. based on experience or observed facts, in contrast to a priori knowledge - the s 78B notice does not set out any of the facts that are alleged to establish that ss 47C, 47E, 47F or 93A of the FOI Act are beyond power. Nor does the s 78B notice describe the grounds on which the applicant intends to challenge the constitutional validity of the relevant provisions, or identify the facts that support any such grounds.
2. It may be doubted that a notice in such terms is sufficient to specify the nature of the matter arising under the Constitution or involving its interpretation for the purposes of s 78B of the Judiciary Act. For present purposes, however, I will proceed on the basis that the applicant has given notice to the Attorneys-General of the Commonwealth and of the States that he challenges the constitutional validity of ss 47C, 47E, 47F or 93A of the FOI Act on the basis that those provisions exceed the legislative power of the Commonwealth.
3. In this regard, I note that a constitutional matter does not arise for the purposes of s 78B merely because a party asserts that it does: Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 (Toohey J); Glennan v Federal Commissioner of Taxation (2003) 77 ALJR 1195; [2003] HCA 31 at [14] (Gummow, Hayne and Callinan JJ); cf. NARF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 264 at [5] (Heerey, Stone and Bennett JJ). Thus, in Australian Competition and Consumer Commissioner v CG Berbatis Holdings [1999] FCA 1151; (1999) 95 FCR 292, French J stated (at [14]):

Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation ...

As Gageler J stated in Re Culleton (2017) 91 ALJR 302; [2017] HCA 3 at [29], "[i]n short, the constitutional point must be real and substantial".

1. At the time that the s 78B notices were given by the applicant, no grounds of review were set out in the originating application and accompanying documents. It was not until the applicant filed his written submissions on 21 October 2024 that he sought to articulate the basis of his challenge to the validity of ss 47C, 47E, 47F or 93A of the FOI Act. The written submissions included conclusionary assertions that the relevant provisions impermissibly curtail "a constitutional freedom of political communication" or "common law freedoms" in relation to communication, or that they impermissibly circumvent an asserted "constitutional requirement of responsible government". Those assertions were neither particularised nor supported by any reasoned argument. In such circumstances, in my view, the applicant has not raised any real or arguable point regarding the validity of the applicable provisions of the FOI Act.

Discretion to refuse relief - adequate alternative remedy

1. It is not in dispute that, at the time that the originating application was filed, the applicant was entitled under s 54L of the FOI Act to apply to the Information Commissioner for review of the internal review decision. Such an application was required to be made within 60 days after the applicant was given notice of the internal review decision: s 54S. Although that time limit expired after the first case management hearing was held in this proceeding, it remains possible for the applicant to apply to the Information Commissioner for an extension of time to make an "IC review application", and the Information Commissioner has power to extend time if satisfied that it is reasonable in all the circumstances to do so: s 54T.
2. Subject to an exercise of a limited discretion not to undertake an IC review (s 54W), the Information Commissioner would have power to affirm or vary the internal review decision, or to set aside the internal review decision and make a decision in substitution for that decision: s 55K. The procedures in an IC review are flexible (s 55), and allow for the parties to attempt to reach agreement on the terms of a decision (s 55F). A decision of the Information Commissioner on an IC review is itself reviewable on its merits by the Administrative Review Tribunal: s 57A(1)(a).
3. In circumstances where the FOI Act confers broad rights to seek merits review of access refusal decisions and internal review decisions, the prospect of judicial review by this Court of such decisions would generally be confined to exceptional cases.
4. In the present case, the applicant stated at the case management hearing that he had not sought merits review of the internal review decision under Part VII of the FOI Act because he regarded the Information Commissioner as "incompetent", based apparently on his "prior experience". However, that is not a satisfactory explanation of the applicant's failure to pursue his review rights under the FOI Act. In any event, the applicant would be entitled to seek review by the Administrative Review Tribunal if he was dissatisfied with a decision of the Information Commissioner.
5. There is no doubt that grant of relief under s 39B of the Judiciary Act is discretionary, albeit that the exercise of that discretion "is not at large": see Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 at [157] (Allsop CJ, Markovic and Colvin JJ); see also SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [28] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [54]-[56] (Gaudron and Gummow JJ, with whom Gleeson CJ and Hayne J agreed at [5] and [172] respectively), [145]-[150] (Kirby J); SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [80] (McHugh J).
6. A recognised basis on which the discretion may be exercised to refuse relief is "if a more convenient and satisfactory remedy exists" (R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ)) or "where there is a suitable alternative remedy" (Bechara v Bates at [164], referring to Phong v Attorney-General (Cth) [2001] FCA 1241; (2001) 114 FCR 75). Thus, "where the legislature has provided for the very description of case a remedy designed as appropriate and adequate, a court should be careful that mandamus is not used to avoid recourse to the remedy or as a substitute for it", and the discretion may be exercised against the grant of relief "where a remedy is provided by way of appeal or the like which is equally convenient, beneficial and effective": Tooth & Co Ltd v The Council of the City of Parramatta [1955] HCA 21; (1955) 97 CLR 492 at 498 (Dixon CJ).
7. In the present context, the provisions of Part VII of the FOI Act contain a specific legislative scheme provided by the Parliament for the review by the Information Commissioner of access refusal decisions and access grant decisions made under the FOI Act, including those made following internal review.
8. In McGowan v Migration Agents Registration Authority [2003] FCA 482; (2003) 129 FCR 118, the applicant sought judicial review of a decision by the Authority to suspend her registration as a migration agent, in circumstances where she had also applied for review of that decision by the Administrative Appeals Tribunal. In dismissing the application for judicial review, Branson J was satisfied that the Court's discretion in relation to the grant of relief should be exercised against the applicant, who "should ... be required to pursue her grievances in respect of the decision of the respondent before the Tribunal", in which full merits review was available: McGowan at [77]. This encompassed both the discretion to refuse relief under s 39B of the Judiciary Act and the analogous discretion conferred by s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which confers power to dismiss judicial review proceedings under that Act for the reason that adequate provision is made by another law under which the applicant is entitled to seek a review of the administrative decision by another tribunal, authority or person.
9. Similarly, in Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554, the applicant had commenced review proceedings in the Administrative Appeals Tribunal in respect of the decisions that were the subject of the proceedings before the Court. The grounds of review before the Tribunal raised similar issues to those raised for consideration in the judicial review proceedings, in circumstances where the Tribunal could decide questions of law and, although unable to exercise judicial power, could reach conclusions as to whether the decisions had been lawfully made: Saitta at [99], [103]. Justice Weinberg observed (at [104]):

The relief which is sought by Saitta in proceeding V 732 of 1999 is discretionary. The fact that it has available to it adequate alternative remedies in the AAT in proceedings which it has already commenced provides considerable support for the proposition that the proceeding in this Court should at least be stayed. Where full merits review is available to, and has already been invoked by, an applicant, Courts will often exercise their discretion to stay or dismiss applications for judicial review - see Blank v Beroya Pty Ltd (1967) 92 WN (NSW) 24 at 26 per Street J; Land v Clyne (1968) 92 WN (NSW) 134 at 136 per Myers J; Liverpool & London & Globe insurance Co Ltd v J W Deaves Pty Ltd [1971] 2 NSWLR 131 at 135 per Else-Mitchell J; Tooth & Co Ltd v Parramatta City Council [1955] HCA 21; (1955) 97 CLR 492 at 498 per Dixon CJ; Moran Hospitals Pty Ltd v King (1997) 49 ALD 444 at 458-459 per Beaumont J; Wyeth Australia Pty Ltd v Minister for Health and Aged Care [2000] FCA 330; (2000) 61 ALD 372 at 385-386 [44]- [47] per Finn J; and Riverside Nursing Care Pty Ltd v Bishop [2000] FCA 434; (2000) 60 ALD 704 at 706 [5] per Sundberg J.

1. Although both McGowan and Saitta were cases in which merits review proceedings had been commenced and were pending before the Tribunal, the exercise of the discretion to refuse relief where there is a suitable alternative remedy is not confined to such circumstances. Nor is the discretion necessarily limited to circumstances in which the alternative remedy remains available, although it may be relevant to consider whether any applicable time limits or other conditions are capable of being met and any explanation for the applicant's failure to comply with such conditions.
2. Accordingly, if an applicant has (or had) an alternative remedy by way of merits review of an administrative decision in which questions of fact and law can be considered and the correct or preferable decision on the evidence can be reached, there will usually be a question whether that is (or was) a more appropriate forum for the decision to be reconsidered before any recourse to judicial review proceedings. There may be cases in which it is appropriate to challenge the validity or legality of an administrative decision by way of judicial review before or instead of pursuing an alternative remedy such as merits review: see e.g. Comcare v DSLB (2025) 307 FCR 565 at [59], [87]-[89] (Horan J, with whom Perry J agreed); CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2014] FCAFC 10; (2014) 221 FCR 165 at [214]-[237] (Allsop CJ, with whom Mansfield J agreed), [315]-[320], [326]-[333] (Rares J). Save for such cases, however, as Davies J stated in Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 at 34:

[T]he general practice of the Court is not to consider, in the first instance, a dispute for the resolution of which a satisfactory administrative remedy has been provided. ...

This Court is too busy and its processes are too costly for it generally to be appropriate for an applicant to come to the Court when there is an informal and expeditious administrative tribunal established to resolve the dispute.

1. The discretion to refuse relief on such a basis is capable of being addressed as a preliminary point, irrespective of any consideration of the substantive issues sought to be raised in the judicial review proceeding. The discretion can therefore be exercised adversely to an applicant as a basis for summary dismissal, at least in circumstances where no reasonable judge would exercise the discretion to grant relief even if the applicant were able to establish error: see e.g. Commonwealth of Australia v BIS Cleanaway Limited (2007) 214 FLR 271; [2007] NSWSC 1075 at [4]-[6] (Brereton J); McGowan at [47]-[48] (Branson J).
2. In my view, this is a clear case in which the discretion should be exercised to dismiss the application on the basis that the applicant had a right to apply to the Information Commissioner for merits review of the internal review decision, and retains a right to apply for an extension of time to seek such review. On an IC review, the Information Commissioner would be able to reconsider whether the internal review decision was justified, and would have power to vary or set aside that decision. Putting to one side the constitutional grounds sought to be raised by the applicant (which I do not consider to be arguable for the reasons set out below), any complaint in relation to the unreasonableness of the internal review decision (whether legal unreasonableness or in a broader sense) and any erroneous reliance on the FOI Guidelines would be capable of being considered and, if appropriate, corrected by the Information Commissioner. In the event that the applicant were dissatisfied with a decision made by the Information Commissioner on an IC review, he could apply to the Administrative Review Tribunal for review of that decision.
3. This conclusion provides a sufficient reason to dismiss the originating application filed on 6 August 2024. Nevertheless, for completeness, I will briefly address the arguments in relation the substantive issues raised in the parties' written submissions.

Intention to cause "detriment" to the applicant

1. In so far as the applicant contends that the Commission or its officers, in responding to the applicant's referral under the NACC Act, intended to cause "detriment" to the applicant or to obtain some benefit for themselves, or took a "reprisal" against him within the meaning of s 29 of the NACC Act, such allegations have no relevance to the legality of the internal review decision made by the FOI officer.
2. The internal review decision was relevantly concerned with whether or not the applicant should be given access to Document 3 in accordance with the FOI Act, as opposed to any actions that were taken by the Commission in response to the applicant's referral under the NACC Act. In any event, it is difficult to see how the Commission's response to a referral can itself be regarded as conduct resulting in detriment to the referrer because he or she has made a NACC disclosure for the purposes of s 29 of the NACC Act, and the applicant's submissions to that effect are therefore doubly misconceived.
3. Similarly, no issue is properly raised in the present proceeding as to whether the Commission acted with "incompetence" or with a "criminal purpose" in responding to the applicant's referral under the NACC Act. Such allegations must be disregarded as both irrelevant and likely to cause prejudice or embarrassment in the proceeding: cf. Federal Court Rules 2011 (Cth), rr 16.02(2)(d), 16.21(1)(d).

1. The applicant submits that the decision to refuse access to Document 3 under ss 47C, 47E and 47F was "unreasonable".
2. In order to establish jurisdictional error, the applicant must establish that the decision was legally unreasonable, so as to exceed the implied condition on the discretionary powers conferred by the FOI Act. The threshold for establishing legal unreasonableness amounting to jurisdictional error is "stringent", and involves more than mere disagreement (even "emphatic" disagreement) with the manner or outcome of the exercise of the power: see Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [30] (French CJ), [108]-[109], [113] (Gageler J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] (Kiefel CJ), [135] (Edelman J).
3. Neither the originating application nor the applicant's written submissions provide any particulars identifying the basis on which the internal review decision is alleged to be unreasonable, in so far as the FOI officer found that Document 3 was an exempt document pursuant to ss 47C, 47E(d) or 47F. The failure to particularise a ground of review can provide a sufficient basis to dismiss that ground: FEY17 v Minister for Home Affairs [2020] FCA 1014 at [90] (Greenwood J); WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J).
4. The applicant sought to distinguish decisions such as FEY17 as having been concerned with rules of court by which the grounds of review were required to be set out in the originating process. The applicant suggested that there was no such requirement for particulars in the present case. I do not accept that argument. In an application for relief under s 39B of the Judiciary Act, r 31.11 of the Rules and Form 69 together contemplate that the grounds on which such relief is claimed will be set out in a statement of claim, accompanying affidavit or other document prescribed by the Rules. The requirement to state the grounds of review encompasses a requirement to provide particulars of those grounds. In the present case, not only are no grounds set out in the originating application or accompanying affidavit, the "unreasonableness" allegation in the applicant's written submissions is completely unparticularised. An assertion that an administrative decision is unreasonable, without any particulars capable of establishing legal unreasonableness giving rise to jurisdictional error, is patently untenable and must be dismissed.
5. In concluding that giving access to Document 3 was contrary to the public interest, the FOI officer balanced the factors favouring disclosure and the factors against disclosure of the document. The applicant has not identified any basis on which that balancing exercise can be said to have miscarried. While the applicant submits that it is in the public interest that the names of the relevant officers of the Commission should be publicly disclosed, that submission rises no higher than disagreement with the merits of the decision reached by the FOI officer.
6. It is not for the Court on an application for judicial review to determine whether or not it is contrary to the public interest to disclose personal information within the meaning of s 47F. Nor is it appropriate for the Court to revisit the merits of the FOI officer's decision in applying s 11A(5) in respect of the disclosure of deliberative matter within the meaning of s 47C or information that would have a substantial adverse effect on the proper and efficient conduct of the Commission's operations within the meaning of s 47E(d). It suffices to say that the FOI officer gave reasons for the internal review decision that provide an evident and intelligible justification for the officer's conclusions. The applicant has not identified, let alone established, any legal or jurisdictional error affecting those conclusions.

1. The FOI Guidelines are issued by the Information Commissioner under s 93A(1) of the FOI Act. Those guidelines are revised or updated from time to time. While the FOI Guidelines are not a legislative instrument (FOI Act, s 93A(3)) and are expressed not to have "binding force" (FOI Guidelines, Version 1.8, December 2021 at [3.11]), there is nevertheless a statutory obligation under s 93A(2) of the FOI Act to have regard to those guidelines when performing functions or exercising powers under the FOI Act.
2. The Mumford affidavit exhibits a document that is identified as "a copy of the FOI Guidelines compilation from May 2024 used by the FOI Officer for the [internal review] decision" (the May 2024 Compilation). However, Ms Mumford does not give direct evidence to that effect. While she states in her affidavit that, on 12 November 2024, she was "provided with a copy of the FOI Guidelines used by the FOI Officer who made the [internal review] decision", she does not state who provided her with that copy nor how she knows or believes that it was used by the FOI officer when making the internal review decision. Further, to the extent that Ms Mumford can be taken as giving evidence that the May 2024 Compilation was used by the FOI officer for the purposes of the internal review decision, presumably based on a representation made by the person who provided her with that document, such evidence may be objectionable as hearsay.
3. On the other hand, Ms Mumford also states her belief, based on her background and experience working on FOI matters, that the May 2024 Compilation was available to be downloaded from the Information Commissioner's website in May 2024. In my view, the May 2024 Compilation of the FOI Guidelines is admissible on that basis. In this compilation, "Part 5 - Exemptions" is described as "Version 1.6, May 2024" and "Part 6 - Conditional Exemptions" is described as "Version 1.3, December 2016". Taken together with the written reasons for the internal review decision, including the connection between the paragraphs in the FOI Guidelines cited in those reasons and the corresponding paragraphs in the May 2024 Compilation (as discussed below), the content of the May 2024 Compilation gives rise to an inference that it was in fact the version of the guidelines that was used by the FOI officer when making that decision.
4. The applicant objected to the Commission's reliance on pages 221-260 of the May 2024 compilation, which comprises Version 1.3 of Part 6, on the ground that it was "unfairly prejudicial to his case". In so far as this is capable of raising an objection to the admission into evidence of the May 2024 Compilation (see e.g. ss 135(a) and 136(a) of the Evidence Act 1995 (Cth)), I overrule that objection. I do not consider that the Commission's reliance on the May 2024 Compilation for the purpose of interpreting or explaining the reasons for the internal review decision involves any unfairness to the applicant.
5. Accordingly, the applicant's submission that "Version 1.3 of Part 6 of [the] FOI Guidelines doesn't exist and never existed" cannot be accepted.
6. In his third affidavit, the applicant exhibited a version of "Part 6 - Conditional Exemptions" that he retrieved from the Information Commissioner's website on 13 October 2024, which is described as "Version 1.4, May 2024". The Commission's written submissions referred to this document as the "current version of Part 6", stating that it was published on 15 May 2024. Although there is no direct evidence as to the date on which it was first published, it is common ground that Version 1.4 of Part 6 was applicable at the time that the internal review decision was made on 5 August 2024. Accordingly, in so far as the FOI officer had regard to Version 1.3 of Part 6 when making the internal review decision, the officer failed to have regard to the applicable version of the FOI Guidelines, as required by s 93A(2) of the FOI Act.
7. Nevertheless, as explained below, there are no material differences between the paragraphs from Version 1.3 of Part 6 to which the FOI officer referred in the internal review decision and the equivalent paragraphs contained in Version 1.4 of Part 6.
8. In considering s 47C of the FOI Act, the officer stated:

In applying this conditional exemption, the FOI Guidelines at [6.55] provide that no type of harm is required to result from disclosure. Rather, the only consideration is whether the document includes content of a specific type, namely a deliberative matter.

1. This statement was consistent with Version 1.3 at [6.55], which provided:

6.55 The deliberative processes exemption differs from other conditional exemptions in that no type of harm is required to result from disclosure. The only consideration is whether the document includes content of a specific type, namely deliberative matter. If a document does not contain deliberative matter, it cannot be conditionally exempt under this provision, regardless of any harm that may result from disclosure.

1. The applicant submitted that paragraph [6.55] of the FOI Guidelines does not provide that "the only consideration is whether the document includes content of a specific type" and "no type of harm is required to result from disclosure". Because the paragraph numbering differs between Version 1.3 and Version 1.4, the paragraph references stated in the internal review decision do not correspond to relevant paragraphs in Version 1.4. However, Version 1.4 provides at [6.50]:

6.50 The deliberative processes conditional exemption provides a framework through which the nature and context of the information must be examined before the conditional exemption will apply. Firstly, the information must include content of a specific type, namely deliberative matter. If a document does not contain deliberative matter, it cannot be conditionally exempt under this provision. This requires a factual determination by the decision maker as an initial step in satisfying themselves that the conditional exemption applies because the document contains deliberative matter involved in a deliberative process.

1. Thus, Version 1.4 continues to state that, in order for the conditional exemption under s 47C to apply, the document must include "content of a specific type, namely deliberative matter". While paragraph [6.50] of Version 1.4 no longer states that s 47C does not require any type of harm to result from disclosure, that proposition is consistent with the terms of s 47C itself, which do not depend on disclosure of the document causing any damage or prejudice or having any adverse effect. Of course, the effects of disclosure remain relevant in the application of the public interest test under ss 11A(5) and 11B of the FOI Act and the applicable guidelines.
2. In the present case, the FOI officer specifically addressed whether Document 3 contained deliberative matter and considered whether giving access to the document would, on balance, be contrary to the public interest. In applying the public interest test, the FOI officer took into account any harm or prejudice that could reasonably be expected to be caused by disclosure of the document. The fact that the FOI officer had regard to paragraph [6.55] of Version 1.3 and not paragraph [6.50] of Version 1.4 does not give rise to any legal error in the internal review decision.
3. The FOI officer also referred to paragraph [6.22] of Version 1.3 as follows:

Factors in favour of disclosure must be balanced against factors that are against disclosure. The FOI Act does not specify any factors against disclosure, but the FOI Guidelines at [6.22] include a non-exhaustive list of such factors.

Paragraph [6.233] of Version 1.4 is in identical terms to paragraph [6.22] of Version 1.3, although the former includes additional footnotes referring to relevant decisions of the Administrative Appeals Tribunal and the Office of the Information Commissioner. Both paragraphs provide a non-exhaustive list of public interest factors against disclosure, after having noted that the FOI Act does not list any such factors and that the application of public interest factors will depend on the circumstances.

1. The applicant submitted that the list of public interest factors "[did not] apply to deliberative matter per se" and suggested that the list was exhaustive due to "exclusio alterius" - i.e. the principle expressio unius est exclusio alterius, by which an express reference to one matter indicates that other matters are excluded. This submission is misconceived. The relevant paragraphs of the FOI Guidelines deal with the public interest test that applies to all of the conditional exemptions in Division 3 of Part IV of the FOI Act, including the exemption of deliberative matter in s 47C. Further, the list of public interest factors set out in the FOI Guidelines is expressly stated to be "non-exhaustive", displacing any operation of the expressio unius est exclusio alterius principle. In any event, because the FOI Guidelines are not a legislative instrument and cannot be inconsistent with the provisions of the FOI Act, they are incapable of exhaustively prescribing the factors that may be taken into account when considering whether giving access to the document would, on balance, be contrary to the public interest for the purposes of ss 11A(5) and 11B of the FOI Act.
2. In relation to s 47E(d) of the FOI Act, the FOI officer cited paragraphs [5.15], [5.17], [5.20] and [6.91] of the FOI Guidelines in a footnote in support of the following propositions:

• A substantial adverse effect must be both substantial and adverse. It must be sufficiently serious or significant to cause concern to a reasonable person.
• The word 'substantial' is taken in the context of substantial loss or damage, has been interpreted as 'loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal.

1. Paragraph [5.20] of Version 1.6, which appears under the heading "Prejudice" in a section dealing with commonly used terms or expressions in the FOI Act, provided:

A prejudicial effect is one which would cause a bias or change to the expected results leading to detrimental or disadvantageous outcomes. There is no need to establish a 'substantial adverse effect' and proof of prejudice is sufficient. [Footnote: See Re James and Ors and Australian National University [1984] AATA 501; (1984) 6 ALD 687, per President Hall on the operation of s 32 of the FOI Act.]

1. The applicant submitted that paragraph [5.20] of the FOI Guidelines did not apply to s 47E(d) of the FOI Act. Strictly speaking, that is correct, in that s 47E(d) does not contain an express reference to the term "prejudice" (cf. s 47E(a), (b)). Section 47E(d) relevantly provides that a document is conditionally exempt if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency. The term "substantial adverse effect" is considered in Part 6 of the Guidelines: see Version 1.3 at [6.91]-[6.94]; Version 1.4 at [6.17]-[6.19], [6.81]-[6.83].
2. However, it is difficult to see how these footnote references in the internal review decision are capable of giving rise to any legal error. The two bullet points in relation to "substantial adverse effect" for the purposes of s 47E(d) reveal no error in relation to the meaning of that concept, and are consistent with Version 1.4 of Part 6 of the FOI Guidelines at [6.18], which provides:

The term 'substantial adverse effect' broadly means 'an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person'. The word 'substantial', in the context of substantial loss or damage, has been interpreted as including 'loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal'.

(Footnotes omitted.)

1. The applicant also submitted that the FOI officer's reference to the FOI Guidelines at [6.91] was misplaced, because the decision to refuse access to Document 3 had nothing to do with a "taxation law". This submission was based on an assumption that the reference was to paragraph [6.91] of Version 1.4, which deals with whether the prejudice or substantial adverse effect in s 47E(a) to (d) could "reasonably be expected" to occur, and provides:

Where the document relates more closely to investigations into compliance with a taxation law or the enforcement of or proper administration of the law due to the involvement of police or the Director of Public Prosecutions, or by an agency's internal investigators, the agency may need to consider the law enforcement exemption under s 37 (see Part 5).

1. However, for the reasons set out above, it should be inferred that the FOI Officer was referring to paragraph [6.91] of Version 1.3, which deals with the concept of "substantial adverse effect" (and is in identical terms to paragraph [6.81] of Version 1.4). There is nothing to indicate that the FOI officer intended to refer to paragraph [6.91] of Version 1.4, and no consideration was given to the question whether Document 3 related to investigations into compliance with a taxation law or the enforcement or administration of the law.
2. In relation to s 47F of the FOI Act, the applicant submitted that the FOI officer incorrectly referred to paragraph [6.143] of the FOI Guidelines. After listing various factors that are identified in the FOI Guidelines as relevant to whether the disclosure of personal information would be unreasonable for the purposes of s 47F(2), the internal review decision included the following footnote reference:

FOI Guideline [6.143]. See also 'FG' and National Archives of Australia [2015] AICmr 26 [47]-[48].

1. Once again, it is clear that this was a reference to paragraph [6.143] of Version 1.3, which lists factors in similar terms to those set out in the internal review decision, together with a reference to "the leading s 47F IC review decision of 'FG' and National Archives Australia [2015] AICmr 26". Further, an identical paragraph is contained in Version 1.4 at [6.138]. It is not arguable that the FOI officer was referring to paragraph [6.143] of Version 1.4, nor that there is any error in the reasoning of the FOI officer in this context.
2. The mere fact that the FOI officer referred to paragraphs in an old version of Part 6 of the FOI Guidelines does not establish any legal or jurisdictional error, in circumstances where the version of the FOI Guidelines that was current at the time of decision contained paragraphs to the same effect, and where the substantive principles that were applied by the FOI officer in making the internal review decision were consistent with the applicable exemption provisions in the FOI Act. In the present case, the references to paragraphs contained in Version 1.3 of Part 6 cannot be explained as a mere typographical error or an error in editing the written reasons: cf. CRI026 v Republic of Nauru (2018) 92 ALJR 529; [2018] HCA 19 at [55]-[57] (Kiefel CJ, Gageler and Nettle JJ). Rather, it can be inferred from those references that the FOI officer did not in fact have regard to the current version of the FOI Guidelines when making the internal review decision. However, in circumstances where there were no relevant differences in the content of the guidelines, the reference to an earlier compilation did not involve an error of law: see Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 285 at [36] (Carr J); but cf. Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583 at [16]-[18] (Whitlam and Gyles JJ), where there were substantive differences between the superseded policy statement and the Ministerial direction that was binding on the Tribunal.
3. In so far as the FOI officer failed to comply with the requirement under s 93A(2) to have regard to the guidelines issued by the Information Commissioner, that failure was not material to the decision. As discussed above, having regard to the particular paragraphs of the FOI Guidelines referred to in the internal review decision, it could not realistically have made any difference to the outcome if the FOI officer had instead had regard to Version 1.4 of Part 6. The paragraphs of Version 1.3 cited by the FOI officer were in similar terms to equivalent paragraphs contained in Version 1.4. The applicant has not pointed to any material differences between Version 1.3 and Version 1.4 of Part 6 of the FOI Guidelines that might have had any bearing on the internal review decision, or might have given rise to a realistic possibility of a different outcome: see generally LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [13]-[16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). Accordingly, the threshold of materiality has not been established.

1. The applicant asserts that ss 47C, 47E, 47F(2), (3), (5) and 93A of the FOI Act, together with the FOI Guidelines, impermissibly curtail "common law freedoms communication [sic]". This assertion was not further developed in any meaningful way in the applicant's written submissions.
2. Any freedom of communication or expression under the common law does not directly constrain the legislative powers of the Commonwealth Parliament: see Attorney-General (South Australia) v Corporation of the City of Adelaide (2013) 249 CLR 1 at 32 [44] (French CJ); cf. Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. As was submitted by the Commission:

The correct jurisprudential analysis of "freedom of speech" at common law is therefore that it is a "liberty" or, perhaps, a "principle" that the common law recognises and does not lightly assume to have been abrogated. But a common law "liberty" or "principle" is incapable of invalidating a statute enacted by the Commonwealth Parliament.

1. The applicant does not rely on the common law freedom of speech as informing the construction of the applicable provisions of the FOI Act. Any submission made by the applicant that ss 47C, 47E, 47F(2), (3), (5) and 93A of the FOI Act are invalid due to inconsistency with the common law must be rejected.

1. In his written submissions, the applicant alleged that each of s 47C, s 47E, and s 47F(2), (3) and (5) of the FOI Act "impermissibly curtails a constitutional freedom of political communication" and "impermissibly circumvents a constitutional requirement of responsible government". The applicant also alleged that, unless ss 47C(1), 47E and 47F(1) are read to exclude Document 3, those provisions would stand "in excess of the legislative power of the Parliament". This suggests that the applicant's constitutional challenge to those provisions is directed to their application in relation to Document 3.
2. The applicant advanced similar contentions in relation to s 93A of the FOI Act, together with the FOI Guidelines issued under that section, and alleged that s 93A "stands in excess of the legislative power of the Parliament".
3. The Commission submitted that the applicant had not advanced any meaningful arguments in relation to these claims, and they should be dismissed "as rising no higher than mere assertion". The onus of demonstrating constitutional invalidity rests on the applicant: see e.g. Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [329] (Heydon J); cf. Gazzo v Comptroller of Stamps (Vic) [1981] HCA 73; (1981) 149 CLR 227 at 252-254 (Murphy J); Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 161-168 (Murphy J); Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at [622] (Heydon J); Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457 at 466 (Starke J), 470 (Dixon J).
4. Putting to one side any presumption in favour of the validity of legislation, the applicant has simply not articulated any basis for the assertion that the relevant provisions of the FOI Act exceed the legislative power of the Commonwealth on the grounds identified in his written submissions.
5. The Commission submitted that ss 47C, 47E or 47F do not effectively burden the freedom of communication about governmental and political matters. Rather, those provisions form part of a statutory scheme to give access to information held by the Commonwealth Government, and are supported by the power to make laws with respect to the establishment and operation of Commonwealth Departments and agencies, and matters incidental to the execution of the powers vested in the Executive Government of the Commonwealth. The exemptions operate to qualify the statutory right of access created by the FOI Act, which was always intended to be subject to limitations "for the protection of the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities, [and] for the proper conduct of public business by the government": Commonwealth, Parliamentary Debates, Senate, 2 April 1981, 1059 (Senator Durack, Attorney-General). The Commission relevantly submitted:

[T]here is no right to access government documents at common law. The FOI Act provides legal entitlements beyond what would otherwise exist. In circumstances where there is no common law right to governmental documents and where Parliament has chosen to confer a qualified statutory entitlement to documents there cannot be said to amount to any burden on political communication. Rather, the FOI Act (and in particular the statutory rights of access in Part III as qualified by the provisions impugned in this case) amounts to an enhancement of political communication.

(Emphasis in original.)

1. There is much force in these submissions. Ultimately, however, it is not for this Court to construct an argument that the impugned provisions of the FOI Act exceed the legislative power of the Commonwealth. It suffices to say that the applicant has not advanced any submission that even remotely suggests that the provisions are beyond power on the basis that they infringe the implied freedom of political communication.
2. It is even less clear on what basis it is argued that the power conferred by s 93A to issue guidelines for the purposes of the FOI Act is beyond the legislative power of the Commonwealth Parliament. Further, the applicant has not identified any particular aspect of the FOI Guidelines that is challenged as infringing the implied freedom of political communication or otherwise exceeding the power validly conferred by s 93A.
3. In so far as the applicant separately asserted a "constitutional requirement of responsible government", the argument was similarly opaque and undeveloped. It can be accepted that the implied freedom of political communication is based on the constitutionally prescribed system of representative and responsible government: see Lange at 561-562. The applicant's written submissions did not otherwise elaborate the nature of any implied limitation drawn from the principles of responsible government, nor how any such limitation might apply to the provisions of the FOI Act in their application to Document 3.
4. In his written submissions in reply, the applicant sought to argue that a right of access to government documents is guaranteed by the "constitutional requirement of responsible government" and by Chapter III of the Constitution, at least in so far as such documents are required to resolve justiciable controversies. The applicant submitted that the FOI Act "provides only an administrative framework for accessing documents to which constitutional right of access already applies". In my view, the applicant should not be given leave to raise these issues in reply, particularly in circumstances where they have not been the subject of notices given under s 78B of the Judiciary Act. In any event, the argument was not supported by any authority.
5. Accordingly, in my view, there is no real argument that the provisions of the FOI Act, in their application to Document 3, are beyond the legislative power of the Commonwealth.

1. For the reasons set out above, the originating application is dismissed.
2. The applicant submitted that the Commission should pay his costs irrespective of the outcome of the application. While the applicant argued that such costs should be awarded against the Commission "on punitive/exemplary bases", I note that the purpose of the power to award costs is compensatory rather than punitive, even where costs are awarded on an indemnity basis.
3. In the present case, I consider that there is no reason to depart from the usual approach that costs follow the event. I do not consider that the proceeding is properly characterised as a test case, particularly having regard to the limited scope of the dispute in relation to the redactions made to Document 3. In this regard, the Commission offered at the outset of the proceeding to produce to the applicant a redacted copy of Document 3, and ultimately adduced that document in evidence in the proceeding. The applicant has consciously declined to pursue his entitlement to merits review by the Information Commissioner under Part VII of the FOI Act. The fact that the FOI officer referred to a superseded version of the FOI Guidelines for the purposes of the internal review decision, in circumstances where that did not give rise to any jurisdictional error, does not warrant an adverse costs order being made against the Commission. Taking all of these matters into account, I consider that the applicant should be ordered to pay the Commission's costs.
4. Accordingly, the application is dismissed with costs.

I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan.