Kavvadias, Dimitrious v Commonwealth Ombudsman [1984] FCA 53

Federal Court of Australia|1984-03-23|Before: Sheppard JJ, Fox J

The matter be remitted to the Tribunal for further

This appeal from the Administrative Appeals Tribunal concerns the question whether a draft report made by the Commonwealth Ombudsman in relation to certain complaints made to him is exempt from access under the provisions of the Freedom of Information Act 1982. In these proceedings before us exemption

"38. A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."

The draft report is a document held on a file desiqnated

$2/507, that file being described in the evidence as follows:

"This file comprises four sequential parts and five annex files containing supplementary material. It relates to the Ombudsman's investigation of a complaint by Dr Lucire about the actions of the Department of Social

Security in relation to the cancellation of invalid pensions."

(Attachment B to letter of Ombudsman and letter of Acting Senior Assistant Ombudsman, dated 10 March 1983.)

The enactment said to apply "specifically to information of a kind contained in the document" (vide s.38 above) is the Ombudsman Act 1976. There were extensive amendments to this Act

made by Act No. 61 of 1983. Except for some provisions not

material to the present case, the amending Act came into force on 12 October 1983. The decision of the Tribunal was given on 2 November 1983, but the reasons given were based on the unamended Act and no reference was made to the amendments. Apparently counsel did not draw the attention of the Tribunal to them. The

result is that in part, the Tribunal applied the wrong statutory

provisions. In' these reasons we refer to, and set out relevant

(2) The functions of the Commonwealth Ombudsman are to investigate complaints made to him under this Act and to perform such other functions as are conferred on him by this Act."

(a) shall investigate action, being action that relates to a matter of administration, taken either before or after the commencement of this Act by a Department, or by a prescribed authority, and in respect of which a complaint has been made to the Ombudsman;"

(2) An investigation under this Act shall be conducted in private and, subject to this Act, in such Manner as the Ombudsman thinks fit."

(3) Where the Ombudsman completes an investigation of action taken by a Department or by aie prescribed authority in respect of which a complaint has been made to him, the Ombudsman shall, in such manner and at such times as he thinks fit, furnish to the complainant and to the Department or authority particulars of the

(2) Subject to this section, an officer shall not, either directly or indirectly, and either while he is, or after he ceases to be, an officer, make a record of, or divulge or communicate to any person, any information acquired by him by reason of his being an officer, being information that was disclosed or obtained under the provisions of this Act, including information furnished by the Ombudsman of a State or information disclosed to or obtained by the Commonwealth Ombudsman in the exercise of a power of the Ombudsman of a State delegated to him as provided by sub-section 34(7).

(a) from making a record of, or divulging or 'communicating to any person, information acquired by him in the performance of his duties as an officer for purposes connected with the exercise of the powers and the performance of the functions of the Ombudsman under this Act: or

(b) from divulging or communicating information to a person -

(i) if the information was furnished by an officer of a Department or prescribed

authority in the performance of his duties as such an officer - with the

consent of the principal officer of the Department or authority or of the responsible Minister; or

(ii) 1f the information was furnished by a person otherwise than as set out in sub-paragraph (i) - with the consent of the person who furnished the information.

(4) Subject to sub-section (5), sub-section (2) does not prevent the Ombudsman or a Deputy Ombudsman from disclosing, in a report made under this Act, such

matters as, in his opinion, ought to be disclosed in the course of setting out the grounds for the conclusions and recommendations contained in the report.

(5) Where the Attorney-General furnishes to the Ombudsman a certificate in writing certifying that -

(a) the disclosure of information or documents concerning a specified matter or matters included in a specified class of matters: or

(b) the disclosure of a specified document or of documents included in a specified class of documents ,-

would, for a reason specified in the certificate, being a reason referred to in paragraph 9(3)(a),(b),(c) or (a), be contrary to the public interest, an officer shall not, either directly or indirectly and either while he is. or after he ceases to be, an officer, except as provided in sub-section (6) -

(c) divulge or communicate to any person any information acquired by him under the provisions of this Act concerning such a matter or sucha document ;

(d) divulge or communicate any of the contents of such a document to any person; or

(e) furnish such a document, or a copy of, or an extract from, such a document, to any person.

{6) Sub-section (5) does not prevent an officer. in the performance of his duties as an officer -

(a) from divulging or communicating information referred to in that sub-section to another

(b) from furnishing any of the contents of, a copy of or an extract from a document referred to in that sub-section to another officer; or

produced to him to the person lawfully entitled to the custody of the document.

(7) Subject to sub-section (7A), where the Ombudsman proposes, for purposes connected with the exercise of his powers or performance of his functions under this Act, to furnish information, or to send a document, or a copy of, or extract from, a document, to the Ombudsman of a State, the Ombudsman shall satisfy himself that a law of the State makes provision corresponding to the provision made by this section with respect to the confidentiality of information acquired by the Ombudsman of the State.

(7A) Sub-section (7) does not apply in relation to any information or document obtained by the Ombudsman in the exercise of a power of the Ombudsman of the State that the Ombudsman was authorized to exercise in pursuance of sub-section 34(7).

(8) A person who is or has been an officer is not compellable, in any proceedings before a court (whether exercising federal jurisdiction or not) or before a person authorized by a law of the Commonwealth or of a State or Territory, or by consent of parties, to hear, receive and examine evidence, to disclose any information acquired by him by reason of his being or having been an officer, being information that was disclosed or obtained under the provisions of this Act.

35A. (1) Nothing in this Act shall be taken to preciude the Ombudsman from disclosing information, or

making a statement, to any person or to the public or a section of the public with respect to the performance of the functions of, or an investigation by, the Ombudsman under this Act if, in the opinion of the Ombudsman, it is in the interests of any Department, prescribed

authority or person, or is otherwise in the public interest, so to disclose that information or to make that statement.

(2) The Ombudsman shall not disclose information or make a statement under sub-section (1) with respect toa particular investigation where the disclosure of that information, or the making of that statement, is likely to interfere with the carrying out of that or any other investigation or the making of a report under this Act.

(3) The Ombudsman shall not, in disclosing information or making a statement under sub-section (1) with respect to a particular investigation -

(a) set out opinions that are, either expressly or impliedly, critical of a Department, prescribed

authority or person unless the Ombudsman has complied with sub-section 8(5) in relation to the investigation; or

(b) disclose the name of a complainant or any other matter that would enable a complainant to be identified unless it is fair and reasonable in all the circumstances to do so.

(4) This section has effect notwithstanding sub-section 8(2) and section 35 (other than sub-section (5) of that section)."

The right to obtain access to a document is found in s.1l of the Freedom of Information Act ("the Act") which is as

"11. Subject to this Act, every person has a legally

enforceable right to obtain access in accordance with this Act to -

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister. other than an exempt document."

The extent to which this provision overcomes or affects specific provisions in other enactments prohibiting the disclosure of documents or information is a matter which will have to be decided when the other enactments fall for

consideration. Obviously, s.38 is a section designed to relate

the operation of the Act to other legislation. This is done by ao

general provision, intended, one assumes, to avoid the necessity of referring to each piece of legislation. The respondent, arguing in support of the decision of the Tribunal. submits that s.38 applies to the Ombudsman Act. To achieve the inter-relation particular reliance is placed on s.35 of the Ombudsman Act, but

the whole tenor of that Act is called in aid. The Tribunal found

that there was in effect a code in the Ombudsman _ Act,

constituting a prohibition within the meaning of s.38.

We do not have precise information about the contents of the draft report here in question. It has been accepted that it is a document to which the Ombudsman Act applies, and to which,

if it is not an exempt document, access will have to be given.

Since the present case was argued before us, a Full Court of this Court, constituted by Bowen C.J., St. John and Fisher JdJ., has delivered judgment in a similar case, raising

virtually the same considerations concerning the construction and

operation of s.38 (The News Corporation Limited v. National

Companies and Securities Commission, unreported, 1 March 1984).

We are thus relieved from the necessity of discussing the matter

as fully as we otherwise would have done. Nevertheless, out of respect for the submissions addressed to us, we will deal briefly

It is not in our view a correct approach to the question

raised to examine separately a few words of the relevant sections -

of the Act and to attempt a mosaic of chosen meanings of then. For present purposes, the prohibition is to be found. if at all, by considering the totality of ss. 35 and 35A. Attention has been directed principally to sub-s.35(2), and it is undoubtedly of major importance. However, it is expressed to be "subject to this section" and in any event its operation is qualified by sub~-s.35A(4) which says that that section has effect notwithstanding s.35 (other than sub-s.35(5)).

document. We do not doubt that what is in the document,

including indications of its source, and how it came into the

possession of the person who has it, is ail information in the sense of s.38. It may be thought adequate for the purposes of the section that the enactment to which it refers should prohibit disclosure of information by reference to it having been received by officers in the course of their duty. Such a prohibition would say nothing directly as to the kind of information in question, which, depending upon the role of the officers, may be

It seems to us that s.38 requires that there be a more direct and explicit reference to the nature of the information itself. Information is the commodity being dealt with in the Act, not the discipline or integrity of officers. Bowen C.J. and

Fisher J. in their joint judgment in The News Corporation Case

"We are firmly of the opinion that s.38 expressly and intentionally directs attention to the nature of the information contained in the document and not to the capacity of the person who has received the information."

Moreover, to apply s.38 in the way suggested, would be largely to destroy the objects of the Act. It is said in sub-s.3(1) that its object "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". In the public interest, there are numerous long-standing provisions which preclude the disclosure of information (in documentary form or otherwise) received by officers of the Government and its agencies, but to hold that they are all prohibitions within the meaning of the Act is plainly not intended. As we have already noted, effect is to

If there is an apparent conflict between s.11 and some

other provisions of the law, it will have to be resolved according to ordinary principles. Section 11 is expressed to be

subject to the Act and there are many provisions of the Act which

would go to maintain the policy against disclosure displayed in other enactments. Section 38 is one of these. As we have already intimated, it seems, obviously enough, to be designed to avoid identifying in a list a number of existing enactments, and also the necessity of adding to the list from time to time by amendment. Reference to the other sections of the Act dealing with exempt documents, such as, for example, s.41, dealing with protection where personal privacy is concerned, or s.45, dealing with protection where confidentiality is involved, shows at the one time that the policy of other Acts in relevant respects is preserved, and that this is done by the operation of the Act. The scope of other provisions restraining disclosure by officers is not to be given an expansive construction so that they are

So far as concerns the provisions found in s.35 and $.352 of the Ombudsman Act, it seems to us that the range of

information there dealt with is qualified only by the fact that

the Ombudsman has it in documentary form. His duty is to investigate, and what he may regard as relevant to an

investigation cannot sensibly be comprehended as a genus. To say that it is of a kind that the Ombudsman acquired or has is not

It is further to be noted that there are not only the relaxations of the prohibition set out in s.35 of the Ombudsman

Act, there is the wide discretion to disclose given to the

ll. provision imposing a relevant prohibition (we leave aside the special situation under sub-s.35(5) which relates to a certificate being given by the Attorney-General). It is unnecessary for this case to determine whether there being a qualified prohibition only, there is a prohibition within the

In the result we are of the view that s.38 does not avail the Ombudsman. For reasons which we think are sufficiently apparent from what we have said, it is also our view that the provisions of the Ombudsman Act, read as a whole, cannot be taken as constituting a code which brings s.38 into operation. Doubtless, if it is thought that the investigations of the Ombudsman should be free from the operation of the Freedom of Information Act appropriate legislative attention will be given to the matter. Other sections, notably s.36 (internal working documents) were relied upon before the Tribunal, but because of its view of s.38, it was not necessary for it to deal with these. It was agreed that in the event of a different view of s.38 being taken in this Court, the matter should be remitted to the

At the request of the parties made at the hearing, we

postpone the making of an order for costs, so that, if desired,

IT certify that this and the ten (10) preceding pages are a true copy of the Reasons for Judgment herein of the

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