What happened

Phillip Lobo, formerly CEO of the Sydney International College of Business (SICB), sought documents from the Department of Immigration and Citizenship (the Department) by two FOI requests dated 14 November 2008: (1) all documents relating to him since May 2007, and (2) all documents relating to Philip Lobo, SICB and the NSW investigations and students attending SICB that formed the basis for the investigation (see [6]). The Department refused access to parts or all of 151 documents on a variety of statutory grounds (ss 33(1)(a)(iii), 33(1)(b), 37(1)(b), 37(2)(b), 40(1)(d), 41(1) and 45(1)), and deleted other material under s 22. Mr Lobo sought merits review in the Administrative Appeals Tribunal (AAT). Deputy President S A Forgie conducted a full review, reading each document and testing the evidence and statutory criteria. The Tribunal made a multi-part decision on 11 October 2011: it affirmed many of the Department's exemption claims, set aside those claims for some documents, ordered deletions where appropriate, and adjourned consideration of some items pending information about any criminal charges (Decision summary, [58]; Attachment J). The Tribunal also stayed the operation of its decision for the appeal period (s 44(2A)).

The factual backdrop was Operation Dachshund: allegations from 2005–2006 that SICB and some unregistered migration agents facilitated fraudulent qualifications used in General Skilled Migration applications. Investigations escalated from administrative review (AIB) to a full FCIS (Fraud Control and Investigations Section) operation with an approved Investigation Plan (23 April 2007), AFP assistance and search warrants executed 25 June 2007, seizure of material, interviews conducted on a confidential basis and subsequent briefs to the CDPP (May–July 2009). Four visa applicants were charged; the CDPP later indicated it would not proceed against Mr Lobo (see [30]–[57]).

Why the court decided this way

The Tribunal's task was a statutory one: apply the FOI Act's exemption tests to the particular documents. The decision turned on careful statutory interpretation coupled with a factual assessment of how each document was created, the context of its creation and the available evidence about confidentiality or potential prejudice.

Key interpretive principles the Tribunal applied:

Distinguish the different statutory thresholds: where the statute asks whether disclosure "would" have an outcome, the Tribunal treated that as requiring a balance of probabilities; where it asks "could reasonably be expected to" or similar phrases, the Tribunal followed the Cockcroft guidance, ask whether the expectation is reasonable, not merely fanciful or speculative ([61]–[66]; [74]).
Confidential sources (s 37(1)(b)) require evidence of an express or implied pledge of confidentiality; witnesses or complainants are not equivalent to confidential informants absent such an assurance ([102]–[103], [156]–[160]).
The "mosaic" or "jigsaw" argument (that innocent parts may combine to identify a source) is admissible as an evidential technique but is not an independent legal rule; it assists by showing cumulative identifiability ([99]–[101]).
Public-interest balancing does not sit implicitly in s 33(1)(a)(iii) or s 33(1)(b); Parliament omitted a public-interest qualification there, so the Tribunal must apply the exemption as written (no balancing unless the statute provides it) ([85]–[87]).
For s 40(1)(d) the Tribunal weighed the Department's operational reliance on voluntary, confidential cooperation from informants. Where disclosure would reasonably be expected to deter future informants and therefore have a substantial adverse effect on the Department's capacity to enforce the Migration Act, the exemption applies, subject to s 40(2) (public interest) ([221]–[231], [256]–[263]).
Section 41(1) (personal information) is an objective test: information is personal where identity is apparent or can be reasonably ascertained; unreasonableness is a contextual factual judgment involving competing legitimate interests, privacy and the public's right to information, but the Tribunal must assess the disclosure objectively (s 27A process and Colakovski guidance) ([285]–[296], [304]).
Section 45(1) requires the equitable elements that would found an action for breach of confidence (Gummow J's statement in Corrs Pavey and the authorities cited), the Tribunal applied those elements to documents where material was plainly supplied 'in confidence' ([389]–[396], [413]–[416]).
Section 22 is a remedial tool, not an exemption: the Tribunal required deletion/redaction where practicable and where a redacted copy would not itself be an exempt document ([417]–[423]).

Applying these principles, the Tribunal made factual findings on whether particular items were produced under a pledge of confidentiality, whether disclosure would materially prejudice law-enforcement operations, whether personal identities could reasonably be ascertained and whether documents met the equitable criteria for breach of confidence.

Before and after state of the law

Before this decision:

The AAT and courts already had a body of decisions on the various FOI exemptions. Key authorities include Attorney-General's Department v Cockcroft for the meaning of "could reasonably be expected to", Jephcott on confidential source, and John Fairfax on breach of confidence when the Commonwealth asserts confidentiality.

What this decision adds or clarifies:

It reinforces Cockcroft as the guiding approach to the "could reasonably be expected to" formulation and carefully applies it across ss 33 and 37 ([61], [74]).
It emphasises that s 33(1)(a)(iii) contains no public-interest balancing; that is a statutory choice and must be respected ([85]–[87]).
It gives detailed guidance about the evidential standard required to treat a person as a 'confidential source' under s 37(1)(b): there must be evidence of an express or implied pledge of confidentiality; being a witness or giving a complaint does not automatically import such a pledge ([102], [156]).
It treats "mosaic" reasoning as legitimate evidence-assessment rather than a stand-alone legal gloss, clarifying how to use such inference in identifying confidential sources ([99]–[101]).
It reaffirms that assessments under s 41(1) should be objective and that an applicant's identity or intended use is not determinative; the Tribunal should use s 27A processes where appropriate ([285]–[296], [321]).
It clarifies the interaction between s 40(1)(d) and the broader public interest: even where an agency's operational efficiency is implicated, the statutory public-interest qualification in s 40(2) must be applied by the decision-maker (and the Tribunal applied it in refusing disclosure of PPQs and witness-identifying material) ([221]-[263]).

This decision therefore supplies a practical roadmap for how to apply these exemptions to law-enforcement-related FOI requests where witness confidentiality and investigatory integrity are at issue.

Key passages with plain-English translation

Paragraph [61]: "The word 'reasonably' anchors possibility..."
Plain English translation: when the Act asks whether something 'could reasonably be expected', you must judge whether it is sensible and rational to think the consequence will happen, not indulge remote speculation.
Paragraph [74]: "I must decide whether it is reasonable... to expect that disclosure could cause damage to Australia's international relations."
Plain English: For s 33(1)(a)(iii), the Tribunal must form a sensible, evidence-based view that disclosure would or would probably harm international relationships; it cannot substitute a general public-interest balancing.
Paragraph [102]: "A 'confidential source' is a source who provided information under an express or implied pledge of confidentiality..."
Plain English: Someone being a 'source' for the purposes of s 37 means they gave information to the Department believing it would be kept confidential; just being a witness or making a complaint does not automatically make someone a confidential source.
Paragraph [101]: "The mosaic theory is not a rule of law... it is... evaluating evidence."
Plain English: Piecing together small bits of seemingly harmless information to identify a person is a valid way to reason about risk, but it is a technique rather than a legal test you can apply automatically.
Paragraph [261]: "It is not in the public interest that the Department's assurances of confidentiality become meaningless..."
Plain English: Disclosing identities of people who cooperated with investigators would undermine the Department’s ability to get voluntary information in the future, and that harm counts strongly under s 40(1)(d).
Paragraph [418]: "Section 22 is not an exemption. It is a tool..."
Plain English: Deleting irrelevant or exempt bits and supplying a redacted copy is a mandatory practical step where possible; s 22 facilitates disclosure, it does not create secrecy.

What fact patterns trigger this precedent

Documents containing names or contact details of witnesses, informants or potential witnesses given to an investigating agency where those persons provided information under an express or implied assurance of confidentiality, strong prospect of exemption under s 37(1)(b)/s 41(1)/s 40(1)(d) (see Category A, many documents).
Documents that reveal the identity of person(s) who supplied information to an agency and where that information was provided on a confidential basis (express statement of confidentiality), will attract s 45(1) breach-of-confidence protection (eg Documents 523, 1016).
Documents that are diplomatic/consular exchanges where disclosure could reasonably be expected to impede free and frank communication between agencies in different countries, protectable under s 33(1)(a)(iii) (Category D docs 401, 1054–1060).
Requests for academic records, transcripts, receipts and other student-identifying material assembled in the course of an investigation where identity is apparent or reasonably ascertainable, objective s 41(1) test will often protect such items (Category 9 documents like 734, 644, 564 etc).
Where investigative methods are described but are generally known or readily foreseeable, s 37(2)(b) will not necessarily protect them; it is only where specific, non-public methods would be harmed that the exemption will apply.

How later courts have treated it

This is an AAT decision; it engages and follows Federal Court and High Court authorities (Cockcroft, Jephcott, John Fairfax, Boughey, etc.). The decision aligns closely with Cockcroft on the interpretation of "could reasonably be expected to" and with Jephcott on confidential source definition. It is consistent with later authorities emphasising context-specific evaluations (eg Sobh on 'administration of the law') and with John Fairfax about the proper scope of equitable protection for confidential government information. Where AAT decisions go to Federal Court on appeal, they may be reviewed for law. This decision’s careful statutory analysis and evidentiary focus make it a persuasive AAT authority for FOI practitioners dealing with law-enforcement disclosure issues. Users should check subsequent appellate history (if any) for further binding authority.

Still-open questions

The margin between what counts as an "implied" pledge of confidentiality for s 37(1)(b) remains fact-sensitive. The Tribunal required concrete indicators; other fact patterns (eg routine practice of confidentiality without express promise) may yield different results.
S 33(1)(b) required a finding of communication 'in confidence' on the balance of probabilities; the Tribunal declined to infer that from custom alone. Courts may be asked to refine how much weight to give 'customary' practice in diplomatic or consular exchanges.
The interplay between s 41(1) and publicly accessible but non-universal data sources (e.g. institutional databases, social-media snippets held by some but not all) raises practical questions about what counts as identity that 'can reasonably be ascertained', the Tribunal permitted consideration of what's reasonably available to some members of the public; future cases may test the boundary (see the discussion on student numbers/transcripts).
The status of uncharged persons whose personal data arose in investigations: the Tribunal adjourned many items until the prosecution status was clarified. The precise weight to be given to subsequent charging, publicity and how that affects 'unreasonable disclosure' under s 41 remains an operational question for decision-makers.
The scope of s 45(1) in relation to remedies for third parties and the proper role of equitable defences (public interest or unclean hands) in an FOI context remains delicate. The Tribunal concluded defences like unclean hands are not generally part of the s 45 statutory inquiry as it focuses on whether disclosure under the FOI Act would found an action; appellate courts may be asked to firm up whether and when such defences should be considered.

Practical takeaways for practitioners: supply evidence about pledges or practices of confidentiality if you rely on s 37 or s 45; when relying on s 40(1)(d) focus factual evidence on how disclosure would materially deter cooperation and impair investigatory capability; use s 22 proactively to offer redacted documents where practicable; and, where prosecution status affects the privacy calculus, confirm and document whether charges were laid before final FOI decisions.

Judgment (1311 paragraphs)

[1]

Lobo and Department of Immigration and Citizenship [2011] AATA 705 (11 October 2011)

[2]

CORRIGENDUM TO DECISION [2011] AATA 705

[3]

The Tribunal amends its decision and reasons for decision of 11 October 2011 as follows:

[4]

in paragraph 392(2) by deleting from the second and third lines "that the distinctions between an" and by substituting in place of the deleted words "these are irrelevant under s 45.".

[5]

CORRIGENDUM TO DECISION [2011] AATA 705

[6]

The Tribunal amends its decision and reasons for decision of 11 October 2011 as follows:

[7]

in paragraph 2(1) of its decision:
- (a) by changing the reference to document 231 to document 213 of Category 19; and
- (b) by deleting the reference to document 285 of Category 23 which is found to be exempt under s 41(1) of the Freedom of Information Act 1982 (FOI Act);
in paragraph 2(2) of its decision:

[8]

(a) by deleting the reference to document 261 of Category 18 which was found to be exempt under s 41(1) of the FOI Act;

[9]

by joining paragraph eight with paragraph nine and numbering this joined paragraph as nine;
there are two paragraphs numbered seven, the second of these (located under the heading BACKGROUND) is to be changed to paragraph eight; and
by deleting the references in the decision and reasons for decision to the following documents as they were not in dispute:

[10]

documents of Category 1 numbered: 798, 853 and 977;

[11]

documents of Category 7 numbered: 139, 333, 344, 597, 636, 739, 741, 763, 864, 865 and 998;

[12]

documents of Category 9 numbered: 475, 564, 571, 577, 608, 620, 640, 643, 644, 723, 859, 875, 876 and 1029;

[13]

documents of Category 12 numbered: 112, 962 and 963;

[14]

documents of Category 17 numbered: 286, 287 and 997; and

[15]

CATCHWORDS - FREEDOM OF INFORMATION - applicant former CEO and chief administrator of Sydney International College of Business - provider of education and training to overseas students under general skilled migration program - allegations of providing false qualifications - investigation by New South Wales Fraud Control Section of the Department of Immigration and Citizenship - exemptions claimed under ss 33(1)(a)(iii), 33(1)(b), 37(1)(b), 37(2)(b), 40(1)(d), 41(1) and 45(1).

[16]

WORDS AND PHRASES - "would, or could reasonably be expected to" - "the enforcement or administration of the law" - "would, or would be reasonably likely to" - "prejudice the effectiveness" - "substantial adverse effect" and "proper and efficient conduct of the operations of an agency" - "personal information" and "unreasonable disclosure" - "found an action" and "breach of confidence."

[17]

PRACTICE AND PROCEDURE - public interest - provisions of FOI Act state when public interest to be considered and how it is to be considered - whether disclosure is in the public interest or whether disclosure is contrary to the public interest - other provisions not requiring a public interest test can in themselves be in the public interest - such as the public interest in protecting personal information from unreasonable disclosure.

[18]

PRACTICE AND PROCEDURE - confidential sources of information not satisfied by witness or potential witness providing statements nor by evidence that communications were of a kind "customarily made in confidence."

[19]

Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322

[20]

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[21]

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[22]

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[23]

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[25]

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[26]

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[27]

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[28]

Bartlett v Secretary, Department of Social Security [1997] FCA 1581; (1997) 49 ALD 380

[29]

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[30]

Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10

[31]

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[32]

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[33]

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[36]

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[37]

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[38]

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[39]

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[40]

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[49]

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[51]

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[53]

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[54]

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[55]

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[56]

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[64]

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[68]

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[69]

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[73]

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[74]

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[75]

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[87]

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[88]

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[89]

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[90]

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[91]

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[92]

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[93]

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[94]

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[97]

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[98]

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[101]

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[102]

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[103]

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[104]

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[105]

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[106]

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[107]

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[108]

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[109]

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[116]

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[121]

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[122]

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[123]

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[124]

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[128]

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[129]

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[130]

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[131]

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[134]

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[149]

DECISION AND REASONS FOR DECISION [2011] AATA 705

[150]

in relation to those documents or parts of documents which have been marked as "Exempt" under one or more of the exemptions listed in Attachment J to these reasons being:

[151]

(1) Category A documents 1-798, 853 and 977; 5-152, 153, 238, 728, 737, 745, 762 and 991; 6-346; 7-139, 597, 509, 596 and 1019; 9-87, 553, 564, 571, 577, 579, 620, 635, 640, 643, 644, 723, 731, 734 and 1029; 12-112, 962 and 963; 13-98 and 99; 15-1018; 16-894 and 956; 23-140, 321 and 285;

[152]

(2) Category C documents 6-399 and 1001; 7-523 and 1016; 9-53, 469, 472, 482, 483, 485, 527, 547, 549, 570, 650, 692, 693, 1017 and 1020; 18-60, 64, 65, 70, 78, 81, 82, 83, 84, 85, 263, 1023, 1074, 1083, 1084 and 1089; and

[153]

(3) Category D documents 19-401, 1054, 1055, 1056, 1057, 1058, 1059 and1060;

[154]

in relation to those documents or parts of documents considered under only one exemption and marked as "Not exempt" in relation to that exemption listed in Attachment J to these reasons being:

[155]

(1) Category B Documents 9-267, 271, 290, 322 and 1009; 9-486, 662 and 1099; 16-397 and 1062; 16-870; 19-231, 214; 272 and 376; 23-140, 321 and 285; and

[156]

(3) set aside the decision under review in relation to those documents or parts of the documents; and

[157]

(4) substitute a decision that those documents or those parts of the documents are not exempt from disclosure under the Freedom of Information Act 1982;

[158]

in relation to those documents or parts of documents marked as "Adjourned ..." under one or more of the exemptions listed in Attachment J to these reasons being:

[159]

(1) Category A documents 5-152, 153, 238, 728, 737, 745, 762 and 991; 7-139, 333, 344, 597, 636, 763, 864, 739, 741, 865, and 998; 9-475, 608, 209, 695, 725, 760, 898, 900, 556, 577, 620, 640, 643, 723, 731 and 1029; 17-286, 287 and 997; 23-140 and 321; and

[160]

(2) Category C documents 9-1017 and 1020; 18-25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76;

[161]

in relation to documents 9-859, 875 and 876 in Category A, affirm the decision to delete the material under s 22 of the Freedom of Information Act 1982; and
this decision is not to come into operation until the expiration of the time specified in s 44(2A) of the Administrative Appeals Tribunal Act 1975 as the time within which a person may appeal to the Federal Court of Australia against this decision.

[162]

Mr Lobo was formerly the Chief Executive Officer and Principal Administrator of the Sydney International College of Business (SICB) located in Melbourne and Sydney. The SICB was registered under the Education Services for Overseas Students Act 2000 (ESOS Act) as the provider of education and training to overseas students. In that role, it provided vocational qualifications under the General Skilled Migration Program (GSMP) and concentrated particularly on cooking and hospitality. Together with other providers registered under the ESOS Act, Mr Lobo and SICB have been investigated by the New South Wales Fraud Control Section (FCS) of the Department of Immigration and Citizenship (Department) as part of an operation known as Operation Dachshund and arising from allegations of fraud under the GSMP.

[163]

2. On 14 November 2008, Mr Lobo made two requests under the Freedom of Information Act 1982 (FOI Act) for access to documents held by the Department and relating to him, SICB, its students and an investigation regarding certain activities of SICB and its students. The investigation came to be known as Operation Dachshund. In an earlier decision, I limited the documents under consideration to those in the possession of the Department on or before the date it received his request i.e. 14 November 2008.[1] Those documents numbered 1,115 but the total number of pages was vastly greater. After various discussions between the parties and further reconsideration within the Department, 153 documents remain in dispute. Exemption from disclosure under the FOI Act is claimed for 151 of them, either in whole or in part, under one or more of the exemptions set out in ss 33(1)(a)(iii), 33(1)(b), 37(1)(b), 37(2)(b), 40(1)(d), 41(1) and 45(1). The remaining two are said to be irrelevant to fall outside the scope of Mr Lobo's request and access has been refused under s 22.

[164]

3. The amount of work involved in the process of simply organising and recording the material, let alone making decisions about it, compiling it into manageable categories and recompiling it as the matter has progressed through settlements and negotiations has clearly been a vast task painstakingly undertaken. It has assisted Mr Lobo and his advisers to understand the nature of the subject matter for which exemption claims have been made and for the parties to have a basis for negotiations. As a consequence, Schedules numbering 143 pages in 9 point font have been prepared to show the documents to be released in full or in part, those no longer in contention between the parties and those for which exemption continues to be claimed in whole or in part that are no longer in contention. I am left with 20 pages in the same font. The task has still been considerable but much more manageable as a result of the parties' work.

[165]

4. I have read each document and considered each against the exemption or exemptions claimed in respect of it.[2] In some instances, the claim for exemption has been made in respect of the whole document and in others it has been made in respect of part of it. I have not distinguished between them in giving these reasons although I have noted the distinction in Attachment A. Despite that, I have considered the claim only in relation to that part of the document for which exemption is actually claimed and my decision should be read in that way. In many instances, the Department claimed exemption on more than one ground. I have considered each claim and the outcome of my consideration is set out in summary form in Attachment J. The reasons are given in the body of these reasons. Although I have not found each exemption made out in each instance on which it has been claimed, a decision refusing access to a document under the FOI Act need only be supported by one ground. In most cases, the documents have been supported by at least one ground although not necessarily all of the grounds claimed by the Department. I have adjourned further consideration of some documents to enable me to know whether charges have been laid against certain persons but have set out the decisions I would make if the evidence goes one way or the other. The parties may be able to resolve the matter themselves. Finally, I have stayed the operation or implementation of this decision for the length of the appeal period provided under s 44(2A) of the Administrative Appeals Tribunal Act 1975.[3]

[166]

5. Whenever an application for review under the FOI Act relates to a number of documents and several exemptions, the reasons for decision quickly become lengthy and unwieldy. I continue to experiment with structures that will make them more readable not only by the parties, to whom they are of immediate concern, but to others be they the Federal Court on appeal or other administrative decision-makers. On this occasion, I have decided to set out the requests, a broad description of the categories of documents coming within the ambit of those requests, the events preceding and relating to Operation Dachshund and my consideration of the exemptions in the body of these reasons. Set out in Attachments, but no less a part of my reasons, are descriptions of the more specific categories into which the documents have been grouped, a grouping of those specific categories by reference to the broader categories and my understanding of the law relating to the exemptions claimed. The first of those Attachments, Attachment A, contains a more detailed index to the reasons. A broader indication is:

[167]

Table summarising decision on each exemption in relation to each document or part of document in relation to which it is claimed.

[168]

6. Mr Lobo made two requests to the Department under the FOI Act. They were for:

[169]

"All documents and files created and held by the Department relating to me since May 2007."[4]

[170]

"All documents and files of whatsoever nature and kind in regard to Philip Lobo, SICB and the NSW Investigations and the students attending who have attended SICB, on the basis of which the Investigation is proceeding."[5]

[171]

7. The documents in issue in this matter, can be grouped under five main subject headings. Those categories, together with the exemptions claimed are:

[172]

s 40(1)(d) - proper and efficient conduct of operations

[173]

Documents containing information identifying witnesses, Departmental informants and other third parties

[174]

s 33(1)(b) - confidential communications with foreign government

[175]

Documents disclosing methods for preventing, detecting, investigating or dealing with breaches of the law

[176]

s 40(1)(d) - proper and efficient conduct of operations

[177]

Documents containing information provided solely for the purposes of the Department's investigation and/or on the basis that it would remain confidential

[178]

s 33(1)(b) - confidential communications with foreign government

[179]

They are set out in greater detail in Attachment A.

[180]

7. In this section of my reasons, I set out my findings of fact on matters relating to Operation Dachshund and associated matters. I have referred to the evidence on which I rely but only in general terms where the findings are uncontroversial. Ms Pettit's history in the Department is an example. I have dealt with the evidence further in considering the claims for exemption.

[181]

Ms Pettit, Manager Investigations-Strategy and Coordination, FCIS

[182]

8. The events surrounding Operations Dachshund were the subject of both oral and affidavit evidence by Ms Elizabeth Joy Pettit.[6] Ms Pettit holds a Bachelor of Arts and a Bachelor of Law degree and has worked in the Commonwealth public service for some 23 years. She has worked in the Department since 1991. Her first seven years were spent assessing claims for protection visas made by applicants within Australia's migration zone. She then became an investigator with the Fraud Control and Investigation Section in New South Wales (FCIS) in 1998. That Section is part of the Department's Operational Integrity Branch. Ms Pettit held that position for the following seven years before becoming a Team Leader in the same section in 2005.

[183]

9. In 2005, Ms Pettit became the Manager Investigations - Strategy and Coordination at FCIS. In her current role, she works with the Manager Operations in FCIS to oversee the investigations undertaken by the section. Her duties include strategic planning and reporting, working with those holding the same position in other States to ensure consistency of their investigation methods and priorities and liaising with other sections located in the Branch within which FCIS is also located i.e. the NSW Operational Integrity Branch.

[184]

Investigation and enforcement of alleged breaches of the Migration Act 1958

[185]

10. The Department is responsible for matters arising under the Migration Act 1958 (Migration Act), which is administered by the Minister for Immigration and Citizenship.[7] One of its responsibilities is to ensure the proper administration of the Migration Act in so far as it and associated regulations provide for visas permitting those who are not Australian citizens to enter the country and remain in it on either a temporary or permanent basis. That, in turn, carries with it the responsibility of investigating any allegations that the Migration Act has not been complied with in the procurement of a visa in a particular case or of visas more generally.

[186]

11. The Department has categorised the allegations it receives by reference to whether they relate to contrived relationships, identity fraud, illegal work, people smuggling, overstaying a visa and other criminal activities. Categorisation was given by reference to the 2004-2005 year but I accept Ms Pettit's evidence that they are representative of other years.

[187]

12. The Department regards as an "allegation" any information that it is given by the public, external agencies or any of its programme areas and that relates to possible fraudulent activity by an individual or organisation. The Department maintains a dedicated toll-free telephone number on which members of the public may tell it of their concerns regarding compliance with the Migration Act. That telephone number is known as the Immigration Dob-In Line. Information that members of the public are encouraged to give is found on the Department's website.[8] It ranges from the name of the person suspected of working or living illegally in Australia and the basis of the suspicion to a sponsor's mistreating a sponsored overseas worker. The information that the Department maintains about the Dob-In Line advises that:

[188]

"The department will treat any information provided by members of the public about people working or living illegally in Australia and 457 sponsors who are not meeting their obligations in the strictest confidence."[9]

[189]

13. While contrived relationships are the subject of most allegations accounting for almost 50%, allegations of identity fraud follow at a little over a quarter of the total. On the basis of the figures referred to by Ms Pettit, I find that over 60% of allegations relate to conduct of the visa applicant with the remaining allegations generally relating to the conduct of one or other of the sponsor, migration agent (whether registered or unregistered), education industry, illegal worker and employer.

[190]

14. The Department finds almost 40% of allegations to be unsubstantiated. It refers a handful to another agency such as the Australian Federal Police and another handful of matters to the Commonwealth Director of Public Prosecutions (CDPP) to consider whether criminal charges should be laid. The majority of cases, something under 60%, result in the Department's taking administrative action such as the refusal of a visa application or the cancellation of a visa already issued.

[191]

15. Having regard to Ms Pettit's affidavit and to the Commonwealth Fraud Control Guidelines issued by the Minister for Home Affairs,[10] I find that most agencies are required to:

[192]

"... refer all instances of potential serious or complex fraud offences to the AFP[[11]] in accordance with the AGIS[[12]] and the AFP referral process published on the website www.afp.gov.au ...".[13]

[193]

This follows as a consequence of the fact that "The AFP has the primary law enforcement responsibility for investigating serious or complex fraud against the Commonwealth...".[14] Exceptions are made in relation to the manner of referral where particular legislation sets out the requirements for referrals of a particular nature or by a particular class of bodies or agencies. Further exceptions are made "...where agencies have the capacity and the appropriate skills and resources needed to investigate criminal matters and meet the requirements of the AFP and CDPP in gathering evidence and preparing briefs of evidence. ..."[15] The Department is regarded as an agency with the appropriate skills and resources to undertake the investigative tasks and prepare the brief of evidence. Even so, it may still choose to refer a matter to the AFP where it deems it appropriate to do so.[16]

[194]

16. In conducting an investigation, the FCIS is required to observe the requirements of the Privacy Act 1988 (Privacy Act) regarding the collection and disclosure of personal information. Information Privacy Principle 11.1(e) under s 14 of the Privacy Act allows a record-keeper who has possession or control of personal information to disclose that information to another when believing "the disclosure of information is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue".

[195]

17. FCIS must also comply with the restrictions imposed by s 336E of the Migration Act regarding the disclosure of identifying information. Except in very limited circumstances relating to the need to prevent or lessen a serious and imminent threat to the life or health of a person,[17] a person commits an offence if his or her conduct causes disclosure of identifying information when that disclosure is not a permitted disclosure.[18] Section 336E(2) sets out a number of disclosures that are permitted. Among them is "... a disclosure that ...is reasonably necessary for the enforcement of the criminal law of the Commonwealth or of a State or Territory",[19] disclosure of certain personal identifiers to selected individuals in certain circumstances for the purposes of identifying or locating a person in connection with the administration of the Migration Act [20] and disclosure to the general public in similar circumstances.[21]

[196]

18. Allegations of serious or organised fraud alleged to have occurred in New South Wales are referred to FCIS. It investigates whether breaches of the Migration Act have occurred and, where it concludes that offences have been committed, prepares briefs of evidence for referral to the CDPP. Under the Commonwealth Fraud Control Guidelines issued by the Minister for Home Affairs,[22] FCIS is regarded as a body with "... the capacity and the appropriate skills and resources needed to investigate criminal matters and meet the requirements of the AFP and CDPP in gathering evidence and preparing briefs of evidence".[23] The consequence of that is that, unlike most agencies, it need not refer all instances of potential serious or complex fraud offences to the AFP in accordance with the AGIS and the AFP referral process. It may, instead, investigate allegations and, where it finds evidence of the commission of an offence, prepare a brief of evidence for referral to the CDPP.[24]

[197]

19. On the basis of Ms Pettit's written evidence, I find that FCIS makes a preliminary assessment of any allegation referred to it. It does so in order to determine whether an offence has occurred and whether, having regard to its resources and the Department's priorities, there is a sufficient basis to warrant an investigation. The assessor decides whether to recommend that an investigation should proceed or that it should not and refers the recommendation to the manager of FCIS.

[198]

20. If the manager refers the matter to an investigator, that investigator prepares an Investigation Plan outlining the nature of the allegations, the nature of the offences and the persons suspected of being involved in the alleged offences, the evidence gathered to date and any additional evidence the investigator hopes to collect through investigation. Once the Investigation Plan has been approved, the investigation begins.

[199]

21. Methods of investigation that FCIS may choose to use in an investigation include obtaining and verifying documentary evidence and interviewing witnesses and persons suspected of having committed an offence. FCIS might also work with the AFP and with other State and Commonwealth agencies in gathering evidence.

[200]

22. Once an investigation has been concluded, the investigator submits a brief of evidence to the CDPP so that it may decide whether there is a reasonable prospect of securing a conviction should charges be laid.

[201]

23. Under Part 2 of the Migration Act, the Minister may grant a non-citizen[25] permission either to travel to and enter Australia, to remain in Australia for a specified or indefinite period or to both travel and enter and remain. The permission is known as a "visa".[26] A non-citizen who wants a visa must apply for a visa of a particular class.[27]

[202]

24. Putting aside whether they also permit a person to travel to and enter Australia, there are two kinds of visas. One permits its holder to remain in Australia indefinitely and is known as a permanent visa.[28] The other permits its holder to remain in Australia during a specified period, until a specified event happens or while the holder has a specified status.[29] Visas may also be categorised into classes. There are prescribed classes of visas as well as those classes specified in particular sections of the Migration Act.[30] The prescribed classes of visa are found in Schedule 1 of the Migration Regulations 1994 (Regulations). Those classes of visa may be of a class for which provision is made in the Migration Act itself.[31]

[203]

25. Visas are sometimes referred to by reference to the types of skills that are a pre-condition to a person's being granted a visa. Visas permitting a person who has skills in one or more of a number of specified occupations who does not have an employer-sponsor are referred to as coming under GSMP. Applicants are assessed for eligibility for such a visa by reference to a Points Test. They must achieve a threshold score. Points are awarded for their English language skills, age, work experience and qualifications. Further points are awarded for work experience gained in Australia and qualifications gained from an Australian educational institution. Until February 2010, applicants under GSMP received further additional points if their occupation was included on a list maintained by the Department of Employment, Education and Workplace Relations (DEEWR). That list was known as the Migration Occupations in Demand List (MODL). Occupations on the list included information technology, engineering and accountancy together with cooking, hairdressing and hospitality. Since February 2010 when MODL was revoked, it has been replaced by a new list known as the Skilled Occupation List.

[204]

26. Before an applicant may apply for a visa under the GSMP, he or she must demonstrate that his or her skills have been assessed as suitable for their nominated occupation by the relevant assessing authority. When an applicant relies on cooking skills, the assessing authority is Trades Recognition Australia (TRA), which is part of DEEWR. In order to demonstrate that he or she has the requisite skills, knowledge and experience and that they meet Australian standards, the applicant will give TRA evidence of his or her qualifications and of his or her work experience. TRA assesses the evidence and decides whether the applicant's skills, knowledge and experience are equivalent to Australian standards.

[205]

27. In Australia, education providers who provide vocational education and training to overseas students are governed by the Education Services for Overseas Students Act 2000 (ESOS Act). The effect of Part 2 of the ESOS Act is that all providers of education and training to overseas students must be registered on the Commonwealth Register for Institutions and Courses of Overseas Students (CRICOS). DEEWR and relevant State accreditation authorities regulate compliance with the ESOS Act. In New South Wales, the relevant State accreditation body is the Vocational Education and Training Association Board (VETAB). The Department, DEEWR and VETAB meet regularly to discuss matters of mutual concern.

[206]

Ms Pettit's involvement with Operation Dachshund

[207]

28. Ms Pettit was not responsible for Operation Dachshund but she did assist the officer then holding her current position of Manager Investigations, Ms Olga Wynne, and the Case Officer with principal responsibility for the investigation, Ms Alison Gibberd, with aspects of the investigation. On the basis of Ms Pettit's affidavit evidence, I find that both Ms Wynne and Ms Gibberd have left the Department. On the basis of her oral evidence, I find that Ms Gibberd left the Department in 2009. Also on the basis of her oral evidence, I find that Ms Pettit had led a team interviewing visa applicants when a team leader was absent overseas. She had interviewed one visa applicant as part of the investigation, helped others and sought legal advice for them.

[208]

29. In this section of my reasons, I will refer to the categories by reference to which the Department has grouped the documents. The same categories are referred to under the following section of my reasons when I group the claims for exemption by reference to the categories of documents in dispute. I have also set the categories out in numerical order in the attachment to these reasons.

[209]

30. I accept the evidence of Ms Pettit regarding the manner in which Operation Dachshund was conducted and the focus of its investigation. I do so for three reasons. The first is that there is no evidence that contradicts her evidence or calls it into question. The second is that it is not inherently implausible or illogical. The third is that it has not been queried by the applicant either in cross examination of Ms Pettit or, if it were feasible, by leading other evidence that throws doubt upon it. That Mr Twigg did not do so on behalf of Mr Lobo is probably a consequence of its not being inherently implausible or illogical. The fourth is that it is a subject on which Ms Pettit has demonstrated her knowledge and basis for her having that knowledge.

[210]

31. On the basis of Ms Pettit's evidence, I find that, in late 2005 and early 2006, the Department received a series of allegations regarding SICB and two unregistered migration agents. In some instances, they were made anonymously but not so in others. The allegations were to the effect that they were providing false qualifications that could be used by visa applicants under GSMP. Specific examples of the allegations made are:

[211]

(1) A member of the public alleged that an unregistered migration agent was charging visa applicants, who had not been students at SCIB, a sum between $10,000 and $20,000 to obtain certificates SCIB to the effect that they had completed cookery courses at the college. The allegation was made to the Department's Student Compliance Section on 20 April 2006.

[212]

(2) An unnamed source alleged that two students, who did not study at SCIB, had applied for visas under GSMP after paying their migration agent approximately $30,000 for certificates in cookery from SCIB. The allegation was made to FCIS on 30 May 2006.

[213]

(3) An anonymous source alleged that students at SCIB were able to buy its certificates from migration agents without attending the course. The allegation was made to the Department's Business Centre in early June 2006 and then referred to its Student Compliance Section.

[214]

Documents concerning all allegations of this sort are grouped under Categories 5 and 7.

[215]

32. At or about the same time that the Department was receiving allegations of this sort, it was also receiving other allegations about the conduct of the unregistered migration agents who were alleged to be involved in some way in the purchase of SCIB certificates. Allegations included:

[216]

(1) Allegations that they, as unregistered migration agents, were giving migration assistance for a fee contrary to ss 280 to 284[32] of the Migration Act. Documents concerning all allegations of this sort are grouped under Category 8.

[217]

(2) An allegation was made to the Migration Agents Registration Authority by a solicitor representing a visa applicant in the Federal Court. The allegation was to the effect that the visa applicant, had paid one of the unregistered migration agents approximately $40,000 for immigration assistance including enrolment fees at the Sydney International College. Documents concerning all allegations of this sort are grouped under Category 6.

[218]

B. Initial response to, and investigation of, the allegations

[219]

33. The Department's Adelaide based Skilled Processing Centre (ASPC) is responsible for processing all visa applications under GSMP. As a result of the Department's having received allegations of this sort, ASPC decided to review 71 Skilled Independent Overseas Student visa applications that had been based on a trade qualification from SICB. It allocated the task to its Integrity Branch also based in Adelaide (AIB). On 27 June 2006, AIB completed a preliminary report in which it identified what it saw as a number of inconsistencies and irregularities in the 71 applications. It recommended that investigators visit the premises of SICB to establish the authenticity of the qualifications. AIB's report is grouped under Category 3 together with its later reports.

[220]

34. That recommendation was adopted and implemented on 27 July 2006 when investigators visited the offices of SICB. They asked SICB for verification of the cookery certificates that had been presented to the Department by 108 visa applicants under GSMP and purported, on their face, to have been issued. Some days later, on 3 August 2011, they were sent 108 certificates by facsimile. The certificates bore consecutive numbers and the order of those numbers matched the order in which the names of the 108 visa applicants appeared on the list.

[221]

35. On 15 September 2006, Ms Alison Gibberd of FCIS prepared an assessment of the allegations against the unregistered migration agents and SICB. She recommended that the matter be allocated to the investigator for a complete investigation on the basis that the allegations appeared to involve organised fraud against the GSMP. Ms Gibberd's assessment and other documents relating to the conduct of the investigation are grouped under Category 23.

[222]

36. In the meantime, AIB had completed its assessment of the 108 certificates sent to it by SICB. On 29 September 2006, AIB issued a report which included the following two recommendations. The first was that thought be given to interviewing each of the 108 visa applicants as part of an assessment of the genuineness of their qualifications from SICB. The second was that there be a further visit to SICB to determine whether it had in place the relevant infrastructure, skills and resources to ensure that its students were trained to an appropriate level. The AIB's report is grouped under Category 3.

[223]

37. Between the time AIB issued its report and February 2007, the Department received further allegations regarding the unregistered migration agents and SCIB. AIB identified a further 162 cases of concern so that there were now 270 cases of concern in all. It issued a further report in February 2007 to the effect that the scale of the potential fraud was now too large to be dealt with administratively. It needed to be dealt with as a criminal investigation. Again, AIB's report is grouped under Category 3.

[224]

38. At or about the same time, ASPC decided that it would no longer process applications that appeared to have any links to the unregistered migration agents or to SICB. Instead, it would refer them to FCIS.

[225]

C. Preparation and approval of an Investigation Plan

[226]

39. On 23 April 2007, Ms Gibberd and Ms Wynne prepared an Investigation Plan summarising the allegations made against the unregistered migration agents and SCIB, identified the offences of which they were suspected of having committed and set out options that would enable FCIS to work with the AFP in gathering evidence for the purpose of the investigation. The Investigation Plan was submitted to the Deputy Director of the Department's State Office in New South Wales for approval. This was an unusual step for most Investigation Plans were submitted to the Manager of FCIS for approval. Operation Dachshund, though, was regarded by the Department as an investigation that would be on a scale not previously undertaken. After the Investigation Plan was approved, an investigation team was formed.

[227]

40. The Investigation Plan had two focal points. One concerned the activities of Mr Lobo and of SICB. The other concerned the activities of the two unregistered migration agents. The Investigation Plan and its approval are grouped under Category 23.

[228]

41. On 29 May 2007, FCIS formally asked the AFP for its assistance in the investigation. The request is grouped under Category 23. That assistance took the form of the AFP's executing search warrants at the offices of SCIB and those of two unregistered migration agents as well as at Mr Lobo's home. The search warrants had been issued under s 3E of the Crimes Act 1914 (Crimes Act). Section 3E provides that an issuing officer, and so a magistrate, Justice of the Peace or other person authorised to issue search warrants or warrants for arrest,[33] may issue a warrant to search premises if satisfied that there are reasonable grounds for suspecting that there is or, within the next 72 hours, will be evidential material at the premises. The issuing officer decides whether he or she is satisfied of that on the basis of information given on oath. Copies of the warrants and the affidavit in support of the application for them are grouped under Category 24.[34]

[229]

42. The AFP executed the search warrants on 25 June 2007 with the assistance of investigators from FCIS, including Ms Pettit. They were executed simultaneously at the officers of SICB and of the two unregistered migration agents. Evidence was seized. Later in the day, a search warrant was executed at Mr Lobo's home. The FCIS investigators and AFP officers involved made statements regarding the day's events. These are grouped under Category 26.[35]

[230]

43. Following the execution of the search warrants, officers in FCIS logged and copied the documents and electronic material seized under the warrants. Mr Lobo was given a copy of the documents and electronic material seized from his home and from SICB. The officers then reviewed the material and began to interview witnesses. Among the witnesses were many visa applicants who had submitted qualifications from SICB in support of their applications for a visa. Current and former students and staff of SICB were also interviewed. Interviews extended over several months. Witnesses were first contacted by telephone and then interviewed in person either at their homes or places of work or, failing that, at the Department's premises. Interviews were conducted on the understanding that they were confidential and that the information provided would be used only for the purpose of the investigation or any prosecution that might follow from it. Some of those interviewed told investigators that they did not want their names disclosed to Mr Lobo. Witness statements are grouped under Category 18.

[231]

44. Part of FCIS's efforts were directed to investigating whether applicants had obtained accreditation for their qualifications from TRA by fraudulent means. Officers spoke with the owners of the businesses where the work experience was said to have been gained and visited their premises. They did so in order to verify the accuracy or otherwise of the information that various visa applicants had given to the TRA in support of their applications for a skill assessment and regarding their work experience. A number of business owners made statements. The documents relating to this part of the investigation are grouped under Categories 11[36] and 16.

[232]

45. Officers interviewed six visa applicants who were found to have provided false work references to the TRA and another four who had not genuinely obtained their qualifications. Others were invited to an interview but declined and withdrew their visa applications. Where visa applications were found to be supported by genuine qualifications and the work experience had been verified, they were returned to ASPC for processing.

[233]

46. As part of the investigation, all information had to be verified regardless of whether it was provided by suspects, witnesses or third parties of any description. Documents relating to those searches are grouped under Category 19 as are those relating to enquiries made by FICS of the immigration authorities in the United States of America (USA) about Mr Lobo. At times, verification required company and business name searches to be conducted. Documents relating to those searches are grouped under Category 22.[37] Investigations were also made into a company of which Mr Lobo was the Managing Director, Data Generale Pty Ltd. That company had sponsored a number of staff to come to Australia under GSMP. FCIS made enquiries of the immigration authorities in the USA regarding Mr Lobo. Documents relating to this aspect of the investigation are grouped under Category 14.[38]

[234]

47. Documents relating to the investigation of the allegations relating to SICB and Mr Lobo are grouped under Category 9. Those concerning the unregistered migration agents are grouped under Category 10.[39]

[235]

48. In June 2006, the Department learned of further allegations about SICB and the unregistered migration agents when it met with TRA and VETAB at one of their regular meetings. These allegations had been made directly to either DEEWR or VETAB. Documents relating to the discussions among the three agencies are grouped under Categories 17 and 18.

[236]

49. FCIS notified DEEWR that some visa applicants who had presented suspect qualifications from SICB had also presented qualifications which were suspect and which appeared to have been given by other education providers. Documents relating to communications between FCIS and DEEWR are grouped under Category 16.

[237]

50. On 17 October 2007, VETAB advised FCIS that it had suspended SICB's approval under the ESOS Act for a number of courses relating to Hospitality (including Cookery), Hospitality management and Hairdressing. As a consequence, SICB was prohibited from recruiting or enrolling overseas students in these courses. Four months later, on 18 February 2007, VETAB cancelled SICB's approval and registration as a Registered Training Organisation under the ESOS Act. VETAB's decisions were affirmed by the New South Wales Administrative Decisions Tribunal when it reviewed them on 7 July 2008.

[238]

51. Throughout its investigation, FCIS reported regularly on its progress. It made those reports to the Department's management. Within FCIS, Operation Dachshund was recorded on its Manager's Case Management Board List, which was updated monthly. That List records all current investigations, their status and the issues each raises. Extracts from that List are grouped under Category 25.

[239]

52. The Department maintains a Sensitive Cases Report regarding investigations and prosecutions relating to its programmes. Operation Dachshund is included in that report. It is also included in the list of fraud and investigations prepared by Investigations in the Department's National Office and used to brief the Minister. These documents are grouped under Category 27.

[240]

The Department's reports and briefings arising from Operations Dachshund

[241]

53. If there is media interest in its investigations, the Department prepares an Incident Report summarising the likely interest and summarising the status of the investigation. Incident Reports were prepared in relation to:

[242]

(1) a story broadcast on 8 October 2007 on Today Tonight regarding unregistered migration agents and mentioning one of the unregistered migration agents under investigation in Operation Dachshund;

[243]

(2) articles published on 28 November and 5 December 2007 in The Australian newspaper regarding SICB and Mr Lobo and mentioning that SICB was being investigated in relation to the sale of qualifications to foreign students applying for General Skilled Migration visas;

[244]

(3) an article published on 9 January 2008 in the Sydney Morning Herald regarding allegations against SICB; and

[245]

(4) the suspension and later cancellation of SICB's approval and registration as a Registered Training Organisation under the ESOS Act.

[246]

Incident reports are grouped under Category 4.[40]

[247]

54. The Department also prepared an Information Brief for the Minister regarding Operation Dachshund and a list of questions he might be asked in Parliament (PPQs). These documents are grouped under Categories 1 and 2.

[248]

55. Following FCIS's investigation, it submitted seven briefs of evidence to the CDPP between May and July 2009:

[249]

(1) Four of the briefs concerned visa applicants who were alleged to have presented false qualifications in support of their visa applications. The Department recommended that charges be laid against each under ss 234(1)(a) and (b)[41] of the Migration Act and Division 137[42] of the Criminal Code Act 1995 (Criminal Code).

[250]

(2) Two briefs concerned unregistered migration agents. They recommended that charges be laid against each under ss 280(1)[43] and 281(1)[44] of the Migration Act as well a further charge under s 284(1)[45] against one of them.

[251]

(3) One brief of evidence concerned Mr Lobo. The Department recommended that charges be laid against him under s 300(2) of the Crimes Act 1900 (NSW) (Crimes Act).[46] Following discussions between the Department and the CDPP, the Department withdrew this brief of evidence. In its place it submitted another recommending that charges be laid against Mr Lobo under s 300(1)[47] of the Crimes Act. The brief of evidence also recommended that charges be laid against him under s 110 of the ESOS Act.[48]

[252]

56 The Department prepared reports regarding the remaining 266 visa applicants whose circumstances were not referred to the CDPP. In relation to some of those, the investigators concluded that they had provided genuine documents. In relation to others, it decided that administrative action was more appropriate than prosecution. Consequently, the relevant reports were referred to the Departmental officer or officers in ASPC responsible for making decisions on the visa applications. They are grouped under Category 12.

[253]

57. The CDPP subsequently issued a Court Attendance Notice[49] specifying the offence alleged and its particulars and requiring each of the four visa applicants to attend court. It did not issue a Court Attendance Notice to Mr Lobo and subsequently, on 19 July 2010, notified the Department that it would not proceed with charges against him. In so far as the charges against Mr Lobo were concerned, the CDPP had decided that it did not regard the evidence as sufficient to prove the fault elements of the offences, which I have set out in [55(3)] above.

[254]

(1) in relation to those documents or parts of documents which have been marked as "Exempt" under one or more of the exemptions listed in Attachment J to these reasons being:

[255]

(a) Category A documents 1-798, 853 and 977; 5-152, 153, 238, 728, 737, 745, 762 and 991; 6-346; 7-139, 597, 509, 596 and 1019; 9-87, 553, 564, 571, 577, 579, 620, 635, 640, 643, 644, 723, 731, 734 and 1029; 12-112, 962 and 963; 13-98 and 99; 15-1018; 16-894 and 956; 23-140, 321 and 285;

[256]

(b) Category C documents 6-399 and 1001; 7-523 and 1016; 9-53, 469, 472, 482, 483, 485, 527, 547, 549, 570, 650, 692, 693, 1017 and 1020; 18-60, 64, 65, 70, 78, 81, 82, 83, 84, 85, 263, 1023, 1074, 1083, 1084 and 1089; and

[257]

[258]

(2) in relation to those documents or parts of documents considered under only one exemption and marked as "Not exempt" in relation to that exemption listed in Attachment J to these reasons being:

[259]

(a) Category B Documents 9-267, 271, 290, 322 and 1009; 9-486, 662 and 1099; 16-397 and 1062; 16-870; 19-231, 214; 272 and 376; 23-140, 321 and 285; and

[260]

[261]

(d) substitute a decision that those documents or those parts of the documents are not exempt from disclosure under the Freedom of Information Act 1982;

[262]

(3) in relation to those documents or parts of documents marked as "Adjourned ..." under one of more of the exemptions listed in Attachment J to these reasons being:

[263]

(a) Category A documents 5-152, 153, 238, 728, 737, 745, 762 and 991; 7-139, 333, 344, 597, 636, 763, 864, 739, 741, 865, and 998; 9-475, 608, 209, 695, 725, 760, 898, 900, 556, 577, 620, 640, 643, 723, 731 and 1029; 17-286, 287 and 997; 23-140 and 321; and

[264]

(b) Category C documents 9-1017 and 1020; 18-25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76;

[265]

(4) in relation to documents 9-859, 875 and 876 in Category A, affirm the decision to delete the material under s 22 of the Freedom of Information Act 1982; and

[266]

(5) this decision is not to come into operation until the expiration of the time specified in s 44(2A) of the Administrative Appeals Tribunal Act 1975 as the time within which a person may appeal to the Federal Court of Australia against this decision.

[267]

59. Apart from the three documents (Documents 859, 875 and 876) said to be "exempt" under s 22(1)(a)(ii) on the basis that they are irrelevant to the request, the remaining 151 documents in dispute before the beginning of the hearing fell into four categories. A brief description of the type of information appearing in each of the four categories, an indication of the essence of the exemptions claimed in respect of all or parts of the documents in each category, the number of documents in issue and the particular documents which are claimed to be exempt in each category appears in the following table. It is based on my examination of the documents together with the categorisation of documents shown in the affidavit of Ms Pettit[50] and Attachment A to the Department's written submissions as amended at the hearing and confirmed subsequently by the lodgement of a further copy on 20 January 2011.

[268]

Number of documents claimed as exempt in full or in part

[269]

Documents containing information identifying witnesses, Departmental informants and other third parties

[270]

s 37(1)(b) - confidential source

[271]

s 40(1)(d) - proper and efficient conduct of operations

[272]

s 41(1) - personal information

[273]

139, 333, 344, 597, 636, 739, 741, 763, 864, 865, 998

[274]

Documents created as part of investigation into SICB

[275]

475, 564, 571, 577, 608, 620, 640, 643, 644, 723, 859, 1029

[276]

87, 209, 553, 556, 579, 635, 695, 725, 731, 734, 760, 898, 900

[277]

Number of documents claimed as exempt in full or in part

[278]

Documents disclosing methods for preventing, detecting, investigating or dealing with breaches of the law

[279]

s 37(2)(b) - lawful methods of investigation etc

[280]

Documents created as part of investigation into SICB

[281]

Number of documents claimed as exempt in full or in part

[282]

Documents containing information provided solely for the purposes of the Department's investigation and/or on the basis that it would remain confidential

[283]

s 37(1)(b) - confidential source

[284]

s 40(1)(d) - proper and efficient conduct of operations

[285]

s 41(1) - personal information

[286]

s 45(1) - breach of confidence

[287]

Documents created as part of investigation into SICB

[288]

53, 469, 472, 482, 483, 485, 527, 534, 547, 549, 550, 570, 650, 692, 693, 1017, 1020

[289]

25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76

[290]

60, 64, 65, 70, 78, 81, 82, 83, 84, 85, 261, 263, 1023, 1074, 1083, 1084, 1089

[291]

Number of documents claimed as exempt in full or in part

[292]

s 33(1)(a)(iii) - international relations

[293]

s 33(1)(b) - confidential communications with foreign government

[294]

EXEMPTION: section 33(1)(a)(iii)

[295]

60. Section 33(1)(a)(iii) provides that:

[296]

"A document is an exempt document if disclosure of the document under this Act:

[297]

(a) would, or could reasonably be expected to, cause damage to:

(i) ...

(ii) ...

[298]

(iii) the international relations of the Commonwealth."

[299]

"would, or could reasonably be expected to"

[300]

61. I must first consider when disclosure of a document under the FOI Act "would, or could reasonably be expected to" have the outcome identified in s 33(1)(a)(iii) i.e. "damage ... to the international relations of the Commonwealth." Without having regard to previous authority interpreting the expression, it suggests that the evidence must either establish that disclosure must as a logical or necessary consequence have the ability to cause that damage (so that it "would" do so) or that there is a sensible or rational basis for thinking that the damage is likely to be a consequence . The word "could" is "used to express a possibility".[51] That is also inherent in the word "expect" which means "to think of something as likely to happen or come ...."[52] It is more nebulous than the word "would", which is used "to express a probability",[53] but it is not without its constraints. The word "reasonably" anchors possibility and expectation in what "could ... be" securely to what is "sensible; rational; showing reason or good judgment ... [and] in accordance with reason".[54]

[301]

62. What of the authorities? There are several for the expression "would, or could reasonably be expected to" appears in other provisions of the FOI Act. I will begin with the expression "could reasonably be expected to". The Full Court of the Federal Court considered that expression in Attorney-General's Department v Cockcroft[55] when it considered s 43(1)(c)(ii) of the FOI Act. That provision exempts from disclosure that information which concerns certain business or professional matters and which "could reasonably be expected to" prejudice the future supply of information to the Commonwealth or an agency for the administration of a law or the administration of matters administered by an agency. Bowen CJ and Beaumont J said:

[302]

" In our opinion, in the present context, the words 'could reasonably be expected to prejudice the future supply of information' were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration & Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321 per Gibbs CJ and Mason J)."[56]

[303]

"... stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information."[57]

[304]

64. Cockcroft's case was considered by the Full Court of the Federal Court in Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another.[58] It said:

[305]

"In the application of s 43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable."[59]

[306]

65. While I realise that s 33(1)(a)(iii) uses the expression "would, or could reasonably be expected to" (emphasis added) to describe the outcome of disclosure, I will look also to the authorities that have considered the expression "could be reasonably likely" (emphasis added). I will do so for to "expect" is to "to think of something as likely to happen..." and both the expectation and the likelihood must be reasonably based.

[307]

66. I note that one of the earliest authorities to consider the word "likely" was Australian Telecommunications Commission v Krieg Enterprises Pty Ltd[60] (Krieg) decided by Bray CJ. His Honour considered the meaning of the word "likely" in the context of whether an employee of the respondent had reasonable cause to believe that the doing of certain work was likely to interfere with or damage property under the control of the Postmaster-General. Bray CJ said, in part:

[308]

" As I have said, the ordinary and natural meaning of the word is synonymous with the ordinary and natural meaning of the word 'probable' and both words mean ... that there is an odds-on chance of the thing happening. That is the way in which statutes containing the words have usually been construed: see, for example, Re Bayer Products Ltd's Application [1947] 2 All ER 188, per Lord Green M.R. at p.191, per Asquith L.J. at p. 193" Dowling v South Canterbury Electric Power Board [1966] N.Z.L.R. 676, Transport Ministry v. Simmonds [1973] 1 N.Z.L.R. 359. Particularly is this so when the statute is a penal statute (see Transport Ministry v Simmonds [1973] 1 N.Z.L.R. 359), or, I think, where, as here, an additional liability in tort beyond the common law liability is being imposed.

[309]

I think that is the meaning which should be attached to the word 'likely' in sub-s. (1)(a). It is the natural and ordinary meaning and there is nothing to show that another meaning was intended. Like the learned Special Magistrate, therefore, I think that 'likely' in the sub-sections means 'probable' and I think that that means that there is a more than fifty per cent chance of the thing happening."[61]

[310]

67. In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union and Others[62] (Tillmanns Butcheries) the Full Court of the Federal Court considered whether certain conduct had the likely effect of causing substantial loss or damage to the business of the appellant in the context of the Trade Practices Act 1974. Bowen CJ, with whom Evatt J agreed, reviewed the authorities but was not prepared to prefer one interpretation of "likely" to another. Deane J reviewed the authorities and concluded:

[311]

"The conclusion which I have reached is that, in the context of s 45D(1), the preferable view is that the word 'likely' is not synonymous with "more likely than not" and that if relevant conduct is engaged in for the purposes of causing loss or damage to the business of the relevant corporation, it will suffice, for the purposes of the sub-section, if that conduct is, in the circumstances, such that there is a real chance or possibility that it will, if pursued, cause such loss or damage. Whether or not such conduct is likely (in that sense) to have that effect is a question to be determined by reference to well-established standards of what could reasonably be expected to be the consequence of the relevant conduct in the circumstances. In determining the answer to that question, it will be relevant that the persons engaging in the conduct did so with the purpose of causing such loss or damage."[63]

[312]

68. Franki J in Trade Practices Commission v TNT Management Pty Ltd[64] was concerned with the meaning of the words "is likely to have" in connection with the words "significant effect on competition" as they appeared in s 45(4) of the Trade Practices Act 1974. His Honour's consideration took place in the context of penal proceedings brought under that Act. He canvassed previous authorities and said

[313]

"In my opinion, it is desirable to note the warning given by Bowen CJ in Tillmanns Butcheries Pty Ltd v Australasian Meat Employees' Union (supra), and not to place a gloss on the section by preferring one meaning of 'likely' rather than another if that is not necessary for the determination of a particular case. If, however, I am required to adopt a view, I consider that the word in s 45(2) now under consideration is to be read with due regard to the fact that it appears in a penal statute, that it is linked with the word 'significant' and that this means that, whilst the meaning need not be restricted to a situation where the odds are greater than equally balanced or somewhat less than equally balanced, the probability must be something not very far short of 'more probably than not', except in unusual circumstances ..."[65]

[314]

69. The Tillmanns Butcheries case was again referred to by the High Court in Boughey v The Queen[66] (Boughey). The High Court considered s 157(1) of the Tasmanian Criminal Code which provided that culpable homicide was murder if committed, inter alia, by means of an unlawful act or omission which the person "... knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person". Gibbs CJ said

[315]

"It is trite to say that the meaning of a word will be influenced by the context in which it appears. In my opinion the word 'likely' in ss.156 and 157 of the Criminal Code Act means 'probable' and not 'possible'. That is its natural meaning. It is the meaning which a draftsman, familiar with the common law rules regarding malice aforethought, might be expected to attribute to it. In any case, if the expression were thought to be ambiguous, the doubt should be resolved in favour of the liberty of the subject. If 'likely' in s.157(1)(c) were regarded as meaning 'possible', that provision would have a very drastic operation, since it would treat as murder a culpable homicide caused by any unlawful act which the offender knew would possibly cause death. A death in those circumstances might understandably be regarded as manslaughter, but it would be Draconian to call it murder."[67]

[316]

70. Mason, Wilson and Deane JJ referred to previous authorities, including Tillmanns Butcheries, and concluded that, in their view, the word "likely" was used with what they:

[317]

"... apprehend(ed) to be its ordinary meaning, namely, to convey the

[318]

notion of a substantial - a "real and not remote" - chance regardless

[319]

of whether it is less or more than 50 per cent: cf Sheen v Fields Pty

[320]

Ltd (51 ALR 345 at 348) and Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at

[321]

There is a further reason why one should not superimpose upon the word 'likely' in either s.156(2) or s.157(1) of the Code refinements of meaning which the word does not convey as a matter of ordinary language. A basic objective of any general codification of the criminal law should be, where practicable, the expression of the elements of an offence in terms which can be comprehended by the citizen who is obliged to observe the law and (where appropriate) by a jury of citizens empanelled to participate in its enforcement. History would indicate that the codifier will never achieve the clarity and completeness which would obviate any need for subsequent interpretation or commentary: see Jolowicz, Historical Introduction to the Study of Roman Law (1939), pp.491-492; Gray, The Nature and Sources of the Law (1909), pp.176-177. The courts should, however, be wary of the danger of frustrating that basic purpose of codification of the criminal law by unnecessarily submerging the ordinary meaning of a commonly used word in a circumfluence of synonym, gloss and explanation which is more likely to cause than to resolve ambiguity and difficulty. To bury the word 'likely' in s.157(1) of the Code beneath the gloss of 'more likely than not' and the explanation of 'a more than 50 per cent' or an 'odds on' chance would be to succumb to that danger. It would also, in our view, be to attribute to the word 'likely' a requirement of a specific degree of mathematical probability which the word does not convey either as a matter of ordinary language or in its context in s.157(1) of the Code."[68]

[322]

71. Both Tillmanns Butcheries and Boughey's case were referred to by Gummow J in Poignand v NZI Securities Australia Ltd and Others.[69] The case concerned, in part, the standing of unit holders to bring a representative action seeking damages, declaratory relief, an injunction and certain other orders. Their action was brought under Part IVA of the Federal Court of Australia Act 1976 and required consideration of s 87(1A) of the Trade Practices Act 1974. Sub-section 87(1A), wrote Gummow J:

[323]

"... authorises applications of persons who have suffered or are 'likely to suffer' loss or damage by conduct of another person that was engaged in contravention of the relevant provisions of the TP Act. The phrase 'likely to' is susceptible of various meanings, and takes its colour from the statutory context. It may indicate a degree of contingency falling short of probability. This and other shades of meaning are discussed in Boughey v R [1986] HCA 29; (1986) 161 CLR 10; 65 ALR 609, in the context of s 157(1) of the Criminal Code (Tas).

[324]

One evident purpose of the inclusion of the phrase 'likely to suffer loss or damage' in s 87(1A) is to afford the opportunity to an applicant to move quia timet by analogy to the obtaining of injunctive relief against the commission of apprehended wrongs. Section 87(1A) is expressed as being without limit to the generality of s 80. The power of the court to grant prohibitory or mandatory injunctions may be exercised whether or not there is an imminent danger of substantial damage to any person: see s 80(4), (5).

[325]

In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 27 ALR 367; 42 FLR 331 at 346-8, in a passage referred to in Boughey at CLR 20, Deane J discussed the sense to be given to 'likely' in s 45D of the TP Act. His Honour held that it would suffice for the purposes of that provision if the conduct in question was such that, in the circumstances, there was a real chance or possibility that if pursued it would cause loss or damage.

[326]

As matters stand on the present motion, I accept the submission by the applicant that there is a real chance or possibility that the unit holders are likely to suffer loss or damage by the conduct complained of against the respondents. It may be that some lesser degree of contingency will suffice for

[327]

s 87(1A) and for s 45D. But that is a question for another day."[70]

[328]

His Honour did not need to consider the matter further for he found that the applicants had already sustained loss or damage.

[329]

72. I note that, in Department of Agriculture and Rural Affairs v Binnie[71] (Binnie), Marks J, with whom Young CJ and Teague J agreed, considered s 31(1)(e) of the Freedom of Information Act 1982 (Vic). It provided that a document is an exempt document if its disclosure under that Act "would, or would be reasonably likely to ... endanger the lives or physical safety of persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law." Marks J concluded:

[330]

" The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real - not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on', or where between nil and certainty it should be placed. A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'. It is not inapt to attribute such meaning to the expression in s. 3(1) of the Act."[72]

[331]

73. Although not directly in issue in the case, this interpretation did not find favour with a later Victorian Court of Appeal. In RJE v Secretary to the Department of Justice and Others,[73] Maxwell P and Weinberg JA preferred the view of Bray CJ in Krieg.[74]

[332]

74. I have referred to Supreme Court and Court of Appeal authorities to illustrate the difficulties that courts have found in trying to explain the task that faces anyone who wants to assess what "could reasonably be expected to" happen in certain circumstances. Adapting the words of Marks J, there is a lot to be said for the view that the nature of the task is "... not necessarily unlocked by close dissection" but I cannot adopt that approach. I am bound to apply the law. In particular, I am bound by the relevant legislative provisions and, where they have been interpreted by the Federal Court and the High Court, by those authorities. Those of other superior courts are persuasive but not binding. Therefore, it seems to me that the law remains that as stated by Bowen CJ and Beaumont J in Cockcroft. That is to say, I must decide whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure under the FOI Act could cause damage to Australia's international relations. I may reach that decision on a foundation that is something less than that required to support a finding that access "would" cause that damage. A finding that it "would" cause damage to those international relations, which is the alternative basis giving rise to the exemption under s 33(1)(a)(iii), requires that finding to be made on the balance of probabilities.

[333]

B. "international relations of the Commonwealth"

[334]

75. I do not think that the term "international relations" is meant to be used as any particular term of art. It refers simply to the connection, "... social, political or personal contact between ..."[75] between the Commonwealth and another or other countries so that the connection is "international".[76] The "Commonwealth" means the "Commonwealth of Australia",[77] established as a political entity by s 3 of the Commonwealth of Australia Constitution Act (Constitution). It legislates by means of the Parliament established by Chapter I of the Constitution. Its judicial power is vested in the High Court of Australia and other federal courts established under Chapter III.

[335]

76. Chapter II of the Constitution is concerned with the exercise of the Commonwealth's executive power. As Mason J said in Barton v The Commonwealth:[78]

[336]

"... By s 61 the executive power of the Commonwealth was vested in the Crown. It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law.

[337]

As Latham CJ said in R v Burgess; Ex parte Henry ...[[79]]:

[338]

'This view is, I think, supported by a consideration of the object which must have been in contemplation when the Constitution was enacted. Australia was established as a new political entity and Australia was to be given control of her own external affairs. Under s. 61 of the Constitution the Executive Government of the Commonwealth can deal administratively with the external affairs of the Commonwealth .... The execution and maintenance of the Commonwealth, particularly when considered in relation to other countries, involves ... the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane. The most obvious example of such action is to be found in the negotiation and making of treaties with foreign countries."[80]

[339]

77. The breadth of the Commonwealth's executive power was discussed by Brennan J in Davis v The Commonwealth:[81]

[340]

"... The Constitution summoned the Australian nation into existence, thereby conferring a new identity on the people who agreed to unite 'in one indissoluble Federal Commonwealth', melding their history, embracing their cultures, synthesizing their aspirations and their destinies. The reality of the Australian nation is manifest, though the manifestations of its existence cannot be limited by definition. The end and purpose of the Constitution is to sustain the nation. If the executive power of the Commonwealth extends to the protection of the nation against forces which would weaken it, it extends to the advancement of the nation whereby its strength is fostered. There is no reason to restrict the executive power of the Commonwealth to matters within the heads of legislative power. So cramped a construction of the power would deny to the Australian people many of the symbols of nationhood - a flag or anthem, for example - or the benefit of many national initiatives in science, literature and the arts. It does not follow that the Executive Government of the Commonwealth is the arbiter of its own power or that the executive power of the Commonwealth extends to whatever activity or enterprise the Executive Government deems to be in the national interest. But s.61 does confer on the Executive Government power 'to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation', to repeat what Mason J. said in the A.A.P. Case. ...".[82]

[341]

78. When seen in the context of international relations, Jacobs J observed in Barton v The Commonwealth that:

[342]

" It is in my opinion within the executive power of the Australian Government as the government of a sovereign state to communicate in such terms as it thinks fit with ... [an international government] unless by legislation the power of making such a communication is taken away from it. ...

[343]

In the absence of any legislative prohibition the free right of the Australian Government to communicate at will with a foreign government is an essential attribute of this country as a sovereign nation. ..."[83]

[344]

79. As a body politic, the Commonwealth cannot exercise its executive power itself. Instead, it must rely on others to exercise it on its behalf. Its executive power is vested in the Queen, and so in the Crown, but is exercisable by the Governor-General as her representative acting with the advice of Federal Executive Council established under ss 62 and 63 of the Constitution. Under s 64, the Governor-General appoints Ministers to administer the departments of State he or she in Council may establish. The appointment of civil servants is authorised by s 67. Although no specific mention is made of other entities, it is clear that the executive power of the Commonwealth may be exercised through, or by means of, entities other than those I have mentioned but which it establishes in the exercise of its executive power.[84] Recognition of this is implicit in s 33(1)(b) of the FOI Act when it provides that:

[345]

"A document is an exempt document if the disclosure of the document under this Act:

[346]

(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth."

[347]

80. That is not to say that every connection between entities or persons who happen to be in Australia and in another country amount to "international relations" so that any falling out between them might be regarded as "damage to ... the international relations of the Commonwealth". An analogy can be drawn between the exemption in s 33(1)(a)(iii) and that in s 33A(1)(a) which provides for an exemption "... if disclosure of the document under this Act [the FOI Act]: (a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State". What is encompassed within the words "relations between the Commonwealth and a State" was a matter considered by the Full Court of the Federal Court in Arnold (on behalf of Australians for Animals) v Queensland.[85] Wilcox J said that:

[348]

"... the words 'relations between the Commonwealth and a State' refer to the total relationship between the Commonwealth and the relevant State. As is essential in a federation, there exists a close working relationship, over a wide spectrum of matters and at a multitude of levels, between representatives of the Commonwealth and representatives of each State. The word 'relations' includes all of those contacts. It would not normally be correct to describe a falling out between particular individuals on each side as constituting damage to 'relations' between the two governments, even if there was some loss of co-operation between those individuals. But a dispute may have ramifications sufficiently extensive for it to affect 'relations' between the governments as such. Questions of degree arise. They can only be considered in the light of the facts of each case."[86]

[349]

81. In ordinary usage, the word "damage" means "... harm or injury, or loss caused by injury. ..."[87] It suggests "... mischief done to property ..."[88] but its meaning is controlled by its context[89] and it may be used to describe more intangible damage. There are to be found, therefore, cases concluding that "The feeling of anxiety is damage".[90] That conclusion was reached when a covenant stipulating that a school would not be kept on certain premises was broken. Lord Cranworth, Vice Chancellor, concluded:

[350]

"... But a person who stipulates that her neighbour shall not keep a school stipulates that she shall be relieved from all anxiety arising from a school being kept; and the feeling of anxiety is damage."[91]

[351]

82. The invasion of privacy has also been described as "damage"[92] as has the loss of power.[93] Doing or saying something that impinges on the way in which a person is regarded either with regard to personal qualities or skills and abilities may be described as damaging their reputation. Damage of this sort may be difficult to quantify and it may well not be possible to attribute a monetary value to it but it is no less damage for all that.

[352]

83. It is in this broader sense of the word "damage" that Davies J adopted in Re Maher and Attorney-General's Department[94] when considering s 33(1)(a) of the FOI Act. His Honour said:

[353]

"... I accept that the mere possibility of damage is not sufficient. However, I do accept that it is necessary to find loss or damage which can be proved in monetary terms. The phrase 'damage to international relations of the Commonwealth' comprehends intangible damage to Australia's reputation though such damage may be difficult to assess. International relations have never been matters easy to define or quantify. Regard must be had, inter alia_, to the relationships between particular persons in one government and persons in another. Damage to personal relationships may cause considerable harm for a time at least._"[95]

[354]

84. Justice Davies and Dr Renouf also adopted this broader meaning of "damage" in Re State of Queensland and Australian National Parks and Wildlife Service.[96] Sitting as the Tribunal, they applied it to s 33A(1)(a), which is similar to s 33(1)(a)(iii) but which applies to information or matter communicated in confidence by or on behalf of the Government of a State or of a State authority rather than by or on behalf of a foreign government.[97] Justice Davies and Dr Renouf looked to the way in which the Commonwealth and the State viewed the disclosure of information, which each held in documentary form and which the State of Queensland had argued, unsuccessfully, had been communicated to the Commonwealth in documentary form. At the time, Queensland did not have legislation equivalent to the FOI Act:

[355]

" It must be remembered that the FOI Act is a Commonwealth enactment. The State of Queensland has no similar legislation. Therefore, the attitude which the Government of the State of Queensland takes with respect to the release of documents is different from that taken by the Government of the Commonwealth. It is necessary to have regard to such differences in attitude and to respect the view of the State of Queensland that communications with its authorities which, under the laws and practices of Queensland, would not be released to the public ought not readily be made available to the public under Commonwealth legislation. Failure to respect this view could well lead to diminishment in the co-operation between the State of Queensland and its authorities with the Commonwealth and its authorities."[98]

[356]

The public interest is an irrelevant consideration

[357]

85. Unlike internal working documents where disclosure of them under the FOI Act must be "contrary to the public interest" before they are exempt under s 36(1), s 33(1)(a)(iii) does not incorporates a public interest component of any description. There is no room for it to be read into the provision itself. That the words of the exemption are intended not only to describe but to circumscribe the exemption is also clear from s 58(2). That section provides that "where ... it is established that a document is an exempt document, the Tribunal does not have power to decide that access to a document, so far as it contains exempt matter, is to be granted". It clearly intends that the exemptions are to be taken at face value and that is consistent with the object of the FOI Act to create:

[358]

"... a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities ..." [99]

[359]

Parliament has identified those essential public interests and the private and business affairs in the exemptions set out in Part IV of the FOI Act. Taken together, these bases lead me to conclude that s 33(1)(a)(iii) does not implicitly incorporate a public interest test.

[360]

86. This conclusion is consistent with the conclusion reached by Neaves J as a Presidential Member in Re Throssell and Australian Archives[100] in relation

[361]

s 33(1)(a) of the Archives Act 1983, which equates with s 33(1)(a) of the FOI Act. He adopted that conclusion in relation to s 33(1)(a) of the FOI Act in Re Throssell and Department of Foreign Affairs.[101] It is also consistent with that reached by Deputy President Todd in Re Slater and Cox (Director-General, Australian Archives)[102] and Deputy President Johnston in Re McKnight and Australian Archives.[103]

[362]

87. I also note that, unlike s 33A which is concerned with documents affecting relations with the States, s 33 is not subject to a qualification. The qualification, found in s 33A(5), is that s 33A "... does not apply in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest." Therefore, a public relations test applies when documents affecting relations with the States are requested but not when documents affecting international relations are the subject of the request.

[363]

Category 19 documents: 401, 1054, 1055, 1056, 1057, 1058, 1059 and 1060

[364]

88. All of the documents for which exemption is claimed are correspondence between the Department and the Consulate General of the United States in Sydney regarding Mr Lobo and the Department's request for information relating to him. Ms Pettit said in her evidence that, in her "... experience, such requests are customarily made, and their responses treated, in strictest confidence."[104] The documents themselves do not contain any classification to suggest that and are marked "unclassified". The correspondence reads as a full and frank exchange of information on issues of mutual concern in an environment in which the authors do not feel constrained by any feeling that the information will be read by a wider audience. That is not to say that the exchange is inappropriate for it is professional and pertinent but it has that flavour. It is a flavour of cooperation between agencies of different countries concerned about common issues arising in law enforcement.

[365]

89. Having regard to these matters, I am satisfied that disclosure of the documents under the FOI Act could reasonably be expected to damage the international relations of the Commonwealth. The damage would be in the form of damage to the working relationships of trust that exist between countries at their Departmental and agency levels and a consequent risk that the free flow of information between the two will be restricted. Therefore, I am satisfied that they are exempt in their entirety under s 33(1)(a)(iii).

[366]

"A document is an exempt document if the disclosure of the document under this Act:

[367]

[368]

91. Unlike s 33(1)(a)(iii), the exemption rests solely on whether disclosure of the document under the FOI Act "would" have the stipulated consequence. For the reasons I gave when considering s 33(1)(a)(iii), that I must consider whether, on the balance of probabilities, disclosure would divulge information or matter communicated in confidence in the circumstances set out in s 33(1)(b).

[369]

92. The exemption provided for in s 33(1)(b) is different from that provided for in s 45. Whereas s 45 requires consideration to be given to whether disclosure under the FOI Act would "found an action ... for breach of confidence", all that s 33(1)(b) requires is that the information or matter have been communicated "in confidence" by or on behalf of a foreign government or an international organisation. Whether that is so, must be decided on the balance of probabilities.

[370]

93. Whether matter or information has been communicated "in confidence" is not determined by the view of one party to the communication or the other but by all relevant evidence. The understanding of each is part of that evidence. This is the approach taken by the Tribunal in Re State of Queensland and Australian National Parks and Wildlife Service in considering the exemption in s 33A(1)(b). That exemption is similar to that in s 33(1)(b) but applies to information or matter communicated in confidence by or on behalf of the Government of a State or of a State authority.[105] Justice Davies and Dr Renouf did not accept that communications between an authority of the State of Queensland and the Commonwealth had occurred in circumstances in which both parties considered them to be confidential. Only the Queensland authority had taken that view. Given the circumstances in which the communications had passed and the nature and subject matter of those communications, the Tribunal concluded that it could not draw an inference that both the Commonwealth and Queensland authorities should have understood them to have passed in confidence. That meant that they were not satisfied that the information or matter had been communicated in confidence and so the exemption in s 33A(1)(b) did not apply.

[371]

The public interest is an irrelevant consideration

[372]

94. For the reasons I gave in relation to s 33(1)(a)(iii), public interest considerations are irrelevant under s 33(1)(b).

[373]

Category 19 documents: 401, 1054, 1055, 1056, 1057, 1058, 1059 and 1060

[374]

95. As I have already found, all of the documents for which exemption is claimed are correspondence between the Department and the Consulate General of the United States in Sydney regarding Mr Lobo and the Department's request for information relating to him. Ms Pettit said in her evidence that, in her "... experience, such requests are customarily made, and their responses treated, in strictest confidence."[106] There is nothing on the documents themselves that suggests that their authors thought that they were writing in confidence at the time. Some of the information might be thought to be information that would not generally be available to the public but other information might conceivably be of that nature. That is not conclusive of whether it was communicated in confidence, of course, but it is a factor to take into account in deciding whether the information was communicated in that way. The fact that the information is exchanged between the Department and the Consulate General for the United States does not of itself lead to the conclusion that it was communicated in confidence. Ms Pettit's evidence does not take me any further than that communications of this kind are "customarily made in confidence". That does not equate with their having been made on that basis on this occasion. Having regard to all of these matters, I am not satisfied that the documents are exempt under s 33(1)(b).

[375]

"A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

[376]

(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement of the administration of the law; ...

[377]

The word "law" used in s 37(1)(b) means the "... law of the Commonwealth or of a State or Territory."[107]

[378]

"would, or could reasonably be expected to"

[379]

97. The principles that I have drawn from the authorities in considering s 33(1)(b) are equally applicable to s 37. I refer particularly to those relating to the meaning of the expression "would, or could reasonably be expected to" in relation to the consequences of disclosure under the FOI Act. In this section, I will refer only to those cases in which the principles have been applied in the context of s 37(1)(b).

[380]

98. In McKenzie v Secretary, Department of Social Security,[108] Muirhead J decided that the Tribunal had not been in error in having regard to the form in which the information had been received. He decided that there was no error of law in the Tribunal's conclusion that the letter, in its original handwritten and signed form, could reasonably be expected to enable Mrs McKenzie to identify its author. Heerey J in Bartlett v Secretary, Department of Social Security[109] did not question the Tribunal's approach in considering whether the nature of the information itself could reasonably be expected to enable the applicant to identify the person who had denounced him.[110] The information disclosed the category of person by whom the information had been given, contained an allegation not previously known to the applicant and contained information as to when the allegations had been made.

[381]

99. In some cases, the evidence may justify a conclusion that disclosure of information by an agency will lead to its being linked with already available information and so lead to the disclosure of yet other information. This is known as the "mosaic or jigsaw" effect and was regarded as a relevant consideration by the Tribunal in Re Slater and Cox (Director-General, Australian Archives):[111]

[382]

"... Evidence was placed before me (Ex 4 as explained in oral evidence) by way of an exercise based upon an analysis of 22 thirty-five-year-old documents. This exercise satisfied me that much can be gleaned, by application of the 'mosaic' technique of piecing together small and individually innocuous pieces of information, that is of present and significant relevance. The cumulative prejudice which may flow from disclosure of documents as a group has been recognised in Australia and overseas. In Re Robinson and Department of Foreign Affairs (1986) 11 ALN N48 the Tribunal said: 'Two additional points deserve mention. First, because large parts of the documents had already been released, proceedings before the Tribunal came, at times, close to a word-by-word battle over disclosure. Not surprisingly, adopting this approach it is tempting to conclude that parts of speech which viewed in isolation are innocuous have no basis for exemption. In circumstances such as the present this temptation must be resisted, for it would be too easy, having before one a document in which only those words which, when viewed in isolation, are exempt have been deleted, to reconstruct the entire document by process of educated guesses and thereby cause damage against which s 33(1)(a) is designed to protect.'"[112]

[383]

100. In Re Millis and Australian Archives,[113] Deputy President McMahon described the mosaic theory as an example of the logical process of reasoning by induction although it has also been referred to as inference or deduction:[114]

[384]

"... What may be done in analysing the subject documents, and the particular facts recorded in those documents, is to estimate the weight of internal evidence or external connecting evidence in favour of a proposition which is likely to disclose the identity of a confidential source. The so-called mosaic theory is nothing more than this."[115]

[385]

101. In Re Petroulias and Commissioner of Taxation,[116] I said:

[386]

"However described, the mosaic theory is not a rule of law determining an outcome. It is no more than a name given to the task of evaluating evidence in order to come to a decision when the evidence comprises that within the documents under consideration and other sources. The decision that is reached is, of course, formulated by the law or is a sub-set of that decision."[117]

[387]

102. What amounts to a "confidential source of information" was considered by the Full Court of the Federal Court in Department of Health v Jephcott[118] (Jephcott). The context of its consideration was that of a response given by the Department of Health neither confirming nor denying the existence of a document. Forster J said:

[388]

"... All the information given to the Department cannot be 'confidential information' or 'given in confidence' or come from 'a confidential source' so that the mere giving of information without more cannot make the giver a confidential source. What then is a 'confidential source'? I am content to accept the interpretation in Luzaich v United States 435 F Supp 31 at 35 (1977): 'a source is confidential if the information was provided under an express or implied pledge of confidentiality.' In the case of an existing document containing information it might be simple enough by reading the document to discover that the information was provided under an express or implied pledge of confidentiality but in the case of a document which may or may not exist the matter is more difficult. It could be that departmental practice when receiving information of certain types might be of assistance but this Court knows nothing of this. It could also be that the presumed contents of the possibly non-existing document, apprehension as to its contents and the relationship of the supposed informant to the person supposedly informed about might enable an inference to be drawn that the information provided, if any, was so provided under an implied pledge of confidentiality. ..."[119]

[389]

In considering whether there was a taxable supply under A New Tax System (Goods and Services) Act 1999 in the form of the sale of foreign currency and whether any supply was made in relation to rights attached to currency, French CJ and Hayne J said that the expression "in relation to":

[390]

"... is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ (33)[[120]]. It may also be accepted that 'the subject matter of the inquiry, the legislative history, and the facts of the case' (34)[[121]] are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply 'in relation to' rights."[122]

[391]

104. Section 37(1)(b) looks to drawing the connection between the confidential source of information (or its non-existence) and the enforcement or administration of the law. In this context, the word "law" would seem to be of wide compass extending to the "... collection of such rules according to which people live or a country or state is governed. ...".[123] That encompasses both Commonwealth and State and Territory law,[124] which, in turn, would encompass statutory and common law.

[392]

"the enforcement or administration of the law"

[393]

Under this heading, I will first set out five authorities that have considered or touched on s 37(1)(a) or (b). Three are authorities from the Federal Court and two from the Tribunal. I am bound by those of the Federal Court if they have decided the question. It seems to me, however, that, apart from making observations in one case, they have not done so as it has not been necessary in order to decide the appeals. That has led me to consider the meaning of ss 37(1)(a) and (b) in the following sections of this Attachment to my reasons.

[394]

106. The earliest case is that decided by the Full Court of the Federal Court in Department of Health v Jephcott.[125] Mrs Jephcott had asked the Department of Health for access to any letter her sister, Mrs Butler, had written to it regarding the care of their late mother. Mrs Jephcott had been paid a domiciliary nursing care benefit under Part VB of the National Health Act 1953 to care for her mother. Relying on ss 25 and 37(1)(b), the Department of Health refused to confirm or deny whether it had such a letter in its possession. The Tribunal set that decision aside and directed that access was to be granted to any such letter if it was in the Department's possession.

[395]

107. Having decided that the Department could make a decision neither confirming nor denying the existence of a document if a hypothetical document would come within the exemption in s 37(1)(b), the Court proceeded on the basis, as Forster J described it:

[396]

" The central point of this matter is whether if Mrs Butler did give the information to the Department concerning Mrs Jephcott and Mrs Whitehead she should rightly be regarded as a 'confidential source of information in relation to the enforcement or administration of the law'. ..."[126]

[397]

Forster J then focused on whether Mrs Butler should be regarded as a confidential source of information and whether s 37(1)(b) permitted regard to be had to whether there was a risk to the enforcement or administration of the law. Neither he nor Keely and Davies JJ, with whom he sat, considered what was meant by the "enforcement or administration of the law" because:

[398]

" It is not disputed that if Mrs Butler did give information to the Department concerning Mrs Jephcott ... such information would on balance be in relation to the enforcement or administration of the law namely, viz the National Health Act. ..."[127]

[399]

108. The second case is Bartlett v Secretary, Department of Social Security[128] decided by Heerey J. The only question was whether a document headed "Mr Bartlett Referral to the AFP" was exempt under s 37(1)(b). The Tribunal decided that part of the document was exempt under that provision. In appealing from that decision, Mr Bartlett argued that he had not been accorded procedural fairness. Justice Heerey decided that Mr Bartlett did not succeed on that ground. Mr Bartlett's other ground met with more success. That was that:

[400]

"The Tribunal misconstrued s 37(1)(b) of the FOI Act, which requires a reasonable expectation that information, if disclosed, would enable a person to identify a confidential source of information. At para 15 of its decision the Tribunal apparently decides that a reasonable possibility that such disclosure could eventuate to the same as reasonable expectation under the terms required by s 37(1)(b)."

[401]

"... it is not in dispute that the requirement of s 37(1)(b) that disclosure 'would or could reasonably be expected to' have the consequences set out in paragraph (b) is a higher standard than possibility. ..."

[402]

When he examined the Tribunal's reasons, he found that the Tribunal had used the test of reasonable possibility and so the incorrect test. Justice Heerey did not consider what is meant by the enforcement or proper administration of the law.

[403]

The third of the Federal Court cases is the recent case of Secretary Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Limited.[129] In that case, Emmett J considered an appeal from a decision of the Tribunal. A company, iNova Pharmaceuticals (Australia) Pty Limited (iNova), made a request under the FOI Act for access to documents relating to the Australian Register of Therapeutic Goods (the Register). That Register is maintained by the Therapeutic Goods Administration (TGA), which is part of the Department of Health and Ageing (DHA). Emmett J explained the way in which the scheme works:

[404]

" Pharmaceutical products and therapeutic goods marketed in Australia must be listed on the Register. When a product is listed on the Register, some details of the product are made public, including the company that applies for listing (the Sponsor). Once a product is listed on the Register, the Sponsor may apply for the product to be listed in a schedule (the Benefits Schedule) maintained in connection with the Pharmaceutical Benefits Scheme (the Benefits Scheme). Products listed on the Benefits Schedule are dispensed to patients at a price subsidised by the Commonwealth government. Listing a product on the Benefits Schedule makes the product more attractive for doctors and patients, because the patient pays a lower price than would be paid if the product were not listed on the Benefits Schedule.

[405]

Two categories of products are listed on the Register, namely, products for which the Sponsor is required to provide detailed evidence supporting claims of quality, safety and efficacy for intended use (Originator Products) and products for which the Sponsor is not required to provide such evidence (Generic Products). However, a Generic Product must contain the same amount of the same active pharmaceutical ingredient as a corresponding Originator Product and, where the Generic Product is absorbed, it must be metabolised and excreted in the same way and at the same rate as a corresponding Originator Product. A Generic Product that meets those criteria is described as the bioequivalent of the Originator Product. Where the Sponsor of a Generic Product can demonstrate that the Generic Product is the bioequivalent of a relevant Originator Product, the Sponsor of the Generic Product can rely on the information supplied to the TGA by the Sponsor of the Originator Product in support of its application for listing of the Generic Product on the Register.

[406]

Under s 99ACB of the National Health Act 1953 (Cth) (the Health Act), once a generic medicine is listed on the Benefits Schedule, there is a 12.5% reduction in the subsidised manufacturer's price for the Originator Product and all the bioequivalent Generic Products listed on the Benefits Schedule. That reduction will be 16% from 1 February 2011." [130]

[407]

111. The Secretary refused access to any document fitting the description in iNova's requests, without informing iNova whether any such document existed. The Tribunal set aside the Secretary's decision and remitted the matters with a direction that she inform iNova whether the documents sought in its requests existed.

[408]

112. The case turned on the interpretation of s 26(2) which provides that a statement of reasons "... is not required to contain any matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document." Justice Emmett decided that the Secretary's response to iNova's request was permitted under s 26(2):

[409]

"Section 26(2) makes it clear that a non-informative response is authorised in appropriate cases where documents exist. There is nothing in the FOI Act that precludes the making of a response in similar terms, when the documents do not exist. ...

[410]

I consider that it was open to the Secretary, or her delegate, in giving a notice under s 26(1), to decline to state whether a document existed if to do so would cause the notice of the decision to be an exempt document by reason of the operation of any of the provisions in Part IV of the FOI Act. Accordingly, the Tribunal erred in concluding that the Secretary could not make a decision declining to say whether or not documents of the categories requested by iNova exist."[131]

[411]

113. Having made this decision, Emmett J did not need to consider the Secretary's final submission but thought it "...desirable to make some observations in relation to the Tribunal's determination."[132] The first part of that submission was to the effect that the Tribunal had considered the exemptions in light of what iNova knew and would, or could reasonably be expected to do rather than what any person would or could reasonably be expected to do. His Honour accepted that submission but

[412]

" The second step considered by the Tribunal was whether iNova would take consequent action on discovering the identity of the Sponsor. The Tribunal in part relied upon evidence from iNova that it would not have taken action because it was not aware of the action that could be taken to cause delay. The analysis of the Tribunal in relation to the second step is flawed in the same way as its analysis of the first step. That is to say, the question is not whether iNova would have taken a particular step. The question is whether, considered objectively, disclosure would or could reasonably be expected to prejudice the enforcement or proper administration of the law. The Tribunal did not consider that question objectively and, to that extent, the Tribunal misdirected itself."[133]

[413]

114. Justice Emmett had no need to consider when the enforcement or proper administration of the law would be prejudiced or what was meant by the expression "enforcement or proper administration of the law". In saying that the Tribunal had not considered the "question objectively", Emmett J would seem to be saying that it was possible that disclosure under the FOI Act could prejudice the enforcement or proper administration of the law when that disclosure could damage the integrity of the operation of the Pharmaceutical Benefits Scheme established under statute. He did not go so far as to make a decision on this aspect and did not need to do so but confined himself to what he called "observations". Although his observations are not binding on me, I have looked to them to find the principles that underpin them and particularly the notions of "enforcement or the proper administration of the law". Justice Emmett has not set them out and that is understandable for, as I have said, he did not need to do so. I do need to do so for, if administrative decisions are to be made consistently, they must be made by first identifying the law that applies, working out what that law means and then applying it to the facts found to exist in the particular case. If I were to try to make decisions in particular cases without taking that initial step, I would end up with a series of decisions that may, or may not, be consistent with one another or with what the law requires.

[414]

115. That brings me to two previous cases decided by the Tribunal. The first, decided in 1984 by Davies J, President, Sir Ernest Coates and Mr Sinclair, Members, was Re Murtagh and Commissioner of Taxation.[134] Ms Murtagh had asked the Australian Taxation Office for access to documents relating to the income tax returns she had lodged and those lodged by a partnership of which she was a member. Ms Murtagh had also made a complaint on a related matter to the Ombudsman.

[415]

116. The Tribunal decided that the documents were not exempt under s 36 as claimed. With respect to the exemption under s 37(1)(a), it noted that the decision-maker had never suggested that there had been any failure to comply with the law. Therefore, the first part of s 37(1)(a) was irrelevant. The argument was that disclosure would prejudice the enforcement or proper administration of the law. The Tribunal stated the issue in dispute and its answer:

[416]

"... The arguments were directed to showing the prejudice to the 'administration' of the law rather than to its 'enforcement'.

[417]

If the disclosure of the documents would hinder the proper conduct of the proceedings before the Taxation Board of Review, then such disclosure would 'prejudice the ... proper administration of the law'. Section 37(1)(a) is the appropriate provision to deal with such a case. But such prejudice must be shown. In the present case, disclosure of the documents would not, we think, have a prejudicial effect upon the proceedings before the Taxation Board of Review. The granting of access would not hinder the respondent in the presentation of his case or unfairly assist the applicant in the presentation of hers. The documents in issue do not disclose names of witnesses or statements of witnesses or the like. Nor would the grant of access subvert the application of discovery rules in the Taxation Board of Review proceedings. There are no such rules.

[418]

In our opinion, the prejudicial effect postulated by s 37(1)(a) has not been shown and the documents are not exempt under this head. We should also mention under this head that it has not been shown, nor indeed claimed, by the Ombudsman, that disclosure of the Ombudsman's documents would prejudice the Ombudsman's investigation."[135]

[419]

The Tribunal's reasoning suggests that it has taken a view of the meaning of the expression "proper administration of the law" that it encompasses a proceeding of a quasi judicial body and an investigation by the Ombudsman. On what basis it reached that decision is not apparent from its reasons. Did the Tribunal take the view that the reference to the "proper administration of the law" is a reference to the administration of justice? Did it then take the view that the Taxation Board of Review and the Ombudsman are to be equated with courts in order to draw them within that concept? Did it base its decision on a broader understanding of what amounts to the "administration of the law"?

[420]

118. The same observation can be made about the reasons for decision of O'Connor J when she was President of the Tribunal but the factual circumstances were more confined. Ms Altman had been a party to a proceeding in the Family Court. A Judge had given an ex tempore judgment and, after settling a transcript of it, later gave the parties a written and copy of it. Ms Altman asked the Commonwealth Reporting Service (CRS), which was then an agency for the purposes of the FOI Act, for access to a copy of the ex tempore judgment. The CRS transferred the request to the Family Court which claimed exemption for it under ss 37(1), 40(1) and 46(a).

[421]

119. When the reasons of O'Connor J regarding the first two exemptions are read together, it becomes apparent that her Honour considered that the reference to the "proper administration of the law" is a reference to administration of the "the law in general".[136] There was no prejudice in a particular instance and so the exemption under s 37(1)(a) was not applicable.

[422]

120. Since these cases were decided, the Full Court of the Supreme Court has decided Sobh v Police Force of Victoria[137] (Sobh). It applied a much narrower interpretation of the expression "administration of the law" when used in s 31(1)(a) of the Freedom of Information Act 1982 (Vic) (FOIVIC). That section is the equivalent provision of s 37(1)(a) but no mention was made of the earlier Federal Court and Tribunal cases. I have considered this case in greater detail below[138] where I have also considered earlier authority on the meaning of the expression "enforcement of the law" and "administration of the law".

[423]

Given ordinary meaning of the word "enforcement", the "enforcement ... of the law" would seem to refer to "the act or process of enforcing" and so to what is done to "compel obedience to" the law[139] or "to cause (a law or decision) to be carried out".[140]

[424]

122. This is the conclusion reached by French J in Kunakool v Boys.[141] A magistrate had committed Mr Kunakool to stand trial on two counts of conspiracy under s 86(1)(b) of the Crimes Act "to prevent or defeat the execution or enforcement of a law of the Commonwealth" being the Migration Act. The evidence at the committal hearing was to the effect that Mr Kunakool had conspired with two Australian citizens that each would go through a form of marriage with a Thai citizen, sponsor his migration to Australia and, in the course of making that sponsorship application, make false statements to staff at the Australian Embassy in Bangkok.

[425]

123. Justice French considered the meanings of both "execution" and "enforcement" saying:

[426]

" Read according to the ordinary meaning of its words, para (b) protects the 'execution' and 'enforcement' of laws of the Commonwealth. The word 'execution' can be taken to bear the primary meaning given to it in the Shorter Oxford English Dictionary_, namely: 'The action of carrying out or carrying into effect.' Applied to a law, this term will include the conduct of an official discharging a statutory duty._

[427]

It is well established that if the occasion for the exercise of a statutory discretion arises, a failure to exercise it will constitute a failure on the part of its repository to discharge a statutory duty: ... [citations referred to].

[428]

It follows that, when the discretion is exercised, the official exercising it discharges a statutory duty. In doing that, he carries out the law in a sense which is within the primary meaning of the term 'executes'.

[429]

In particular, an official exercising the discretion under s 11A of the Migration Act 1958 to issue or refuse to issue a visa is executing the provisions of that Act.

[430]

The word 'enforcement' refers to the action of compelling fulfilment of the law (Shorter Oxford English Dictionary), a definition which includes compelling compliance with obligations imposed by law.

[431]

It does not seem apposite to the exercise of a discretion to grant or withhold the grant of a statutory privilege. I note, however, that it was thought to be appropriate in the somewhat analogous case of R v Corak_,_ supra_. That case was concerned with an agreement to arrange sham marriages to enable Chinese men, who were otherwise obliged to leave Australia at the expiry of their temporary entry permits, to apply for and obtain permanent entry permits._

[432]

Absent the grant of permanent permits they would have been compelled to leave Australia. In that context it can be understood why the charge was framed in terms of a conspiracy relating to the 'enforcement' of the Act.

[433]

Isaacs J in that case was of the view that the words 'execution' and 'enforcement' as used in s 86(1)(b) [of the Crimes Act 1914] are not mutually exclusive, but may and do overlap in their scope and meaning. I respectfully agree. It may be that the term 'execution' is the larger of the two and incorporates enforcement as a special case."[142]

[434]

124. His Honour referred to an unreported judgment of the New South Wales Court of Criminal Appeal in R v Corak[143] (Corak), in which Mr Corak had been charged under s 86(1)(b) of the Crimes Act 1914 with the offence of conspiring wth another "to prevent or defeat the execution or enforcement of a law of the Commonwealth". The judgment in Corak was explained by Barr J, with whom Sully J agreed, in Regina v L T Hardy:[144]

[435]

"... R v Corak_, Court of Criminal Appeal, New South Wales, 24 November 1967, unreported, concerned charges under s 86(1)(b) of conspiring to prevent the enforcement of the Migration Act. There was a scheme by which a number of foreign nationals present in Australia under temporary permits and liable to be deported contracted 'marriages of convenience' with Australian women for the purposes of applications for resident status. Two of the marriages were strictly unlawful, being bigamous, but I think that nothing turns on that fact for present purposes because the substance of the conspiracy was not the marriages themselves but telling lies about them in order to mislead officers administering the provisions of the Migration Act. The Court held that there was a conspiracy to prevent the enforcement of the Act. Nothing turns, I think, on the difference between preventing the enforcement of the Act, as in_ Corak_, and defeating its execution, as in the present appeal. The former formulation of s 86(1)(b) was appropriate in_ Corak_, since the appellants were attempting to prevent officers deporting them. In his judgment at page 5 McClemens J, with whom the other members of the Court agreed, said, referring to s 6 of the Migration Act and to certain other sections, particularly those dealing with deportation of prohibited non-citizens -_

[436]

'All those sections are directed to one thing, namely the enforcement of the Act. It may be that s.18 (which deals with deportation) is the ultimate sanction, the act of forcible deportation but short of that there are other sanctions which are part of the enforcement provisions of the Act and it was to prevent these enforcement provisions from coming into existence, in other words to prevent the enforcement of the Act, that this plan on the evidence was entered into.'

[437]

125. In its ordinary meanings, the word "administration" is used to refer to "... the directing, managing or governing of a company's affairs etc. 2 a period of government by a particular party, etc ...".[145] In the context of s 37(1)(b), these meanings seem awkward. I have turned to the Macquarie Dictionary where the meanings include those of "... 2. The function of a political state in exercising its governmental duties. ...".[146] This is the meaning to which the trial judge, James J, had referred and which was approved on appeal by the New South Wales Court of Criminal Appeal in R v Einfeld:[147]

[438]

"142. On a literal interpretation, the expression 'the administration of the law' is apt to include the exercise by a government body of its functions in applying and enforcing the law of this State. See the definition of "administration" in the Macquarie dictionary (2nd ed)."[148]

[439]

126. The literal interpretation of the expression is not one that found favour with the Full Court of the Supreme Court of Victoria in either of two cases. In the first, Accident Compensation Commission v Croom[149] (Croom), Ms Croom had asked the Accident Compensation Commission (ACC) for access to a report prepared by investigators. She made her request under the Freedom of Information Act 1982 (Vic) (FOIVIC). The reports set out details of Ms Croom's employment, the nature of the work she had performed, statements from employees and opinions on liability for her injury. The ACC was a statutory body established to manage the Accident Compensation Scheme established under the Accident Compensation Act 1985. Its functions included its receiving, assessing and accepting or disputing claims for compensation, providing insurance for purposes of the Act and to defend actions against employers at common law. The ACC submitted that disclosure of the reports under FOIVIC would be reasonably likely to "prejudice the ... proper administration of the law in a particular instance" within the meaning of s 31(1)(a) of FOIVIC,[150] which is very similar to s 37(1)(b) of the FOI Act. Access would prejudice its proper administration because it would advantage Ms Croom as a potential claimant for compensation and disadvantage the ACC as a potential defendant.

[440]

127. Justice O'Bryan, with whom Young CJ and Vincent J agreed, said that:

[441]

" A careful examination of all the paragraphs in s 31 indicates to me that for a document to fall within one of the exemptions it should have a connection with the criminal law or with the legal process of upholding or enforcing civil law."[151]

[442]

His Honour did not elaborate upon why this is so in the context of s 31 or of the FOIVIC.

[443]

128. Young CJ used the case as an opportunity to comment on it as:

[444]

"... an example of the difficulty imposed upon the court by legislation which is couched in vague and imprecise language. ...

[445]

The difficulties are created largely by the fact that exempt documents ... are described in terms which admit of no very precise meaning. In such circumstances all that the court can do in any particular case is to attempt to give some meaning to the sections relied upon as exempting the documents in question from disclosure and in so doing make the law which Parliament failed to make. ..."[152]

[446]

Relying on ss 35(b)(i), 36(3) and 36(4), Young CJ referred to the heading to s 31(1)(a) while noting that:

[447]

"... it is necessary to avoid being diverted into attempting to construe the vague expression 'Law enforcement documents' rather than the equally vague provisions of s31(1)(a).

[448]

Approaching the section, however, under the influence of the heading and having regard to all of the paragraphs of subs(1) as well as to the exceptions prescribed by subs(2) and subs(3) which exempts any document created by the Bureau of Criminal Intelligence, I am clearly of the opinion that the reports here in question should not be held to be exempt documents pursuant to the section. Exemption was claimed under the 'administration of the law' but in my opinion that phrase in the context is quite inapt to protect what the appellant here seeks to protect. Disclosure of the documents could not prejudice the proper administration of the law for they are in no way concerned with that administration. It is sufficient to say that the reports are not concerned with the proper administration of the law. It is better not to attempt to define 'administration of the law' or to replace one vague word with another, but the administration of the law indicates something concerned with the process of the enforcement of legal rights or duties. I agree, with respect, in O'Bryan J.'s observation that to fall within s31 a document should have a connection with the criminal law or with the process of upholding or enforcing civil law. In so doing I have not overlooked the words 'in a particular instance' but those words cannot control the category or class of document intended to be exempted.

[449]

If 'the administration of the law' could be construed, as the appellant would have it construed, as including its conduct of its functions under the Accident Compensation Act, I would respectfully agree with O'Bryan J. that the appellant has not shown that disclosure of either document would prejudice the administration of the law in the relevant sense.

[450]

The claim of the appellant for exemption under s31(1)(c) is equally unsound and for similar reasons. Disclosure of the documents would not reveal a confidential source of information in relation to the administration of the law. Further, the evidence does not establish that the witnesses' statements were furnished in confidence. Disclosure of them would neither disclose, nor enable anyone to ascertain the identity of a confidential source of information."[153]

[451]

130. The Chief Justice seems to have assumed that the expression "administration of the law" has a particular meaning. I respectfully suggest that he has not explained why that particular meaning should be adopted in the interpretation of s 31(1)(a). When speaking some eight years earlier of another expression but one having some relationship with this expression - "administration of criminal justice" - Morling J said in Harper v Costigan[154] that "... the task in hand is to ascertain the meaning of the words ... in the particular context in which they appear ...".[155] In that case, Morling J considered the expression "administration of criminal justice" in the context of s 13(11) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). That section requires administrative decision-makers to give reasons in certain circumstances. Section 13(11) excludes from that obligation any decision included in any of the classes set out in Schedule 2 to the ADJR Act. Among the classes of decision excluded are those "decisions relating to the administration of criminal justice, and, in particular ..." five types of decision which were then described. Justice Morling decided that, in specifying the five types of decision, Parliament had given the words "administration of ... justice" "... a meaning much wider than they would otherwise have."[156] It was wide enough to include the activities of the Royal Commissioner on that occasion and so exclude them from the scope of the obligation to provide reasons under s 13 of the ADJR Act.

[452]

131. I have spent a moment on the expression "administration of justice" for that is an expression that had some prominence in the second of the two cases considered by the Full Court of the Supreme Court of Victoria. That is the case of Sobh v Police Force of Victoria[157] (Sobh). Section 31(1)(a) is very similar to s 37(1)(b) of the Commonwealth FOI Act. Mr Sobh had requested access to his file from the Victorian Police. That file included the police's brief of evidence. That brief included statements of witnesses.

[453]

"... the FOIA [FOIVIC] sustains the integrity of the prosecutorial process while at the same time making available all documents which will not impede or frustrate it. ... This is the context in which the exemption in favour of documents which 'would, or would be reasonably likely to prejudice the ... proper administration of the law in a particular instance' must be interpreted."[158]

[454]

133. His Honour then moved from the context to the words of s 31(1)(a):

[455]

" Prejudice is not a term of legal art. It means to impede or derogate from. Its content is governed by the matters which may be impeded or derogated from, which in this case is the administration of the law.

[456]

As to what the law may be, there is no doubt. It includes both the civil and criminal law of the State of Victoria, that law is expressed by statute, regulation and the case and common law. Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322, already referred to, acknowledges the width of the term in this section. Young CJ, at 324, said: 'but the administration of the law indicates something concerned with the process of the enforcement of legal rights or duties'.

[457]

More difficulty is encountered when dealing with 'the proper administration of the law'. By definition, this law includes the pre existing criminal law, which does not permit pre trial discovery, and the FOIA which permits everything to be discovered by everybody, except those documents which would impede or derogate from the administration of both of these laws. In my view the qualifying word 'proper' is not without meaning; it imputes the notion of being appropriate to ... the administration of the law. That is, the surrounding circumstances must be examined. In the light of that examination, that which is appropriate or fitting to them dictates the way the law should be administered. The phrase 'administration of the law' is not synonymous with 'the administration of justice'. Justice is a more abstract word encompassing morality, ethics and philosophy. The legislature has chosen to use a word of less abstract and of more mechanical import. The appropriate 'law' in any given situation is definable. Rather than the courts having to grapple with the concept of 'justice', or what ought to be the case, here the courts deal with the law, and what is the case.

[458]

_Mere mechanical steps in the prosecutorial process have not been considered to be part of the administration of justice (_R v Rogerson [1992] HCA 25; (1992) 174 CLR 268; 107 ALR 225), whereas once the process had commenced the courts have been held to have a part in administering the law: James v Robinson (1963) 109 CLR 693. Similarly, the distinction between 'maintaining the law' and the 'right to a fair trial' was considered to be significant in Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385, a case to which I shall refer later, but it underscores the notion that the proper administration of the law is not the same thing, although analogous to, the administration of justice."[159]

[459]

134. Ashley J initially appears not to have drawn the distinction between "administration of justice" and "administration of the law" in the same way as Nathan J has done. Like Nathan J, though, Ashley J found that investigative steps fell outside the scope of the "administration of justice":

[460]

"... There being authority for the proposition that police investigation is not part of the administration of justice - see Neilson v Laugharne [1981] 1 All ER 829 and R v Rogerson [1992] HCA 25; (1992) 66 ALJR 500 - it may reasonably be concluded that police investigation is not part of the 'administration of the law'. That conclusion is reinforced by the fact that, for the purposes of s 31(1)(a), the two matters are dealt with discretely."[160]

[461]

135. If considered only in the context of an investigation that leads to criminal charges, this interpretation is all very well in the context of s 31(1)(a) of the Victorian FOI Act and even of s 37(1)(b) of the Commonwealth Act. The distinction between an investigation and the administration of the law would not cause a dilemma for investigative agencies in most circumstances. As Ashley J said in relation to this matter when considering an ongoing investigation after charges have been laid:

[462]

"... It is, I think, beyond argument that an investigation may continue notwithstanding the laying of charges. Laying of charges implies only that the informant believes that there is sufficient evidence available to justify that course. It does not mean investigation concerning those matters is at an end; or that investigation relating to other possible breaches of the law by the defendant may not be in train. It may very well be that in many instances a police file would be exempt from disclosure, notwithstanding that charges had been laid, by reason of apprehended prejudice to investigation of a breach or possible breach of the law. The mere fact that there appeared to be sufficient in the file to lay those charges or secure a conviction thereon would not gainsay the prospect of successful use of that ground of exemption."[161]

[463]

136. Later in his judgment, Ashley J went back to consider what is encompassed within the "administration of the law":

[464]

" The next step in the resolution of the problem, in my opinion, is to consider the significance or otherwise of the adjective 'proper' (qualifying the 'administration of the law') and the significance of the verb 'prejudice'.

[465]

The Oxford English Dictionary, 2nd ed, offers somewhat different possible meanings of the word 'proper', thus: 'strictly belonging to or applicable; that is, in conformity with rule; strict, accurate, exact, correct'; and 'such as a thing of the kind should be; excellent, admirable, commendable, capital, fine, goodly, of high quality'.

[466]

With some hesitation I have concluded that the first of these alternative meanings is presently applicable. It seems to me that Parliament should be taken to have intended that there be a consideration of prejudice in the context of the status quo rather than in the context of what should ideally be the case. The latter concept would likely involve considerable uncertainty. The conclusion I have reached is consistent with the opinion of the learned judge at first instance, which I accept, that the 'administration of the law' required to be considered is the administration of the law unaffected by any right to access of documents given by the Act. It remains, however, a discrete question, to be resolved hereafter, whether any disturbance of the status quo will necessarily constitute prejudice thereto.

[467]

To say that 'the proper administration of the law' is inclusive of its practices and procedures does not, in my opinion, exhaust the content of that imprecise phrase. It should be considered to extend to the conduct of litigation generally, the object of which is to achieve justice between the parties; not abstract 'justice', but justice achieved within the framework of the law - a framework encompassing both substantive law and practices and procedures both pre-trial and during trial. In Croom's Case_, at 324, Young CJ, referring to s31(1)(a) said this: '. . . the administration of the law indicates something concerned with the process of the enforcement of legal rights or duties. I agree, with respect, in O'Bryan J's observation that to fall within s31 a document should have a connection with the criminal law or with the process of upholding or enforcing civil law.'_

[468]

The documents whose production was resisted in that case were unrelated to any pending proceedings. The context makes the point of his Honour's observation very clear. The passage cited does not, in my opinion, support a conclusion that 'the ... proper administration of the law' is concerned only with matters of practice and procedure. I should note, for sake of completeness, that O'Bryan J (see at 328), with whom Vincent J agreed, did not decide the matter on the basis of the passage referred to by the learned Chief Justice.

[469]

Practices and procedures should be seen not as ends to themselves but as aids to the achievement of 'justice' in the sense that I have used that word. Because the 'proper administration of the law' is, in my opinion, constituted by more than its practices and procedures, it seems to me that it is wrong to ask whether disclosure of a document would (be reasonably likely to) prejudice the application of presently existing rules of practice and procedure. The question to be answered is, in my opinion, a broader one: would disclosure of a document (be reasonably likely to) prejudice 'the proper administration of the law' giving that phrase its full meaning? Or, if (contrary to the view I have expressed) the 'administration of the law' refers to no more than its practices and procedures, would disclosure of a document (be reasonably likely to) prejudice the existing rules of practice and procedure? In answering either of those questions consideration would need to be given to the impact of disclosure, if permitted, upon existing rules of practice and procedure. But the mere fact that disclosure cut across any such rule or rules would not, in my opinion, be decisive of relevant prejudice. To so conclude would be to render the status quo sacrosanct and it would require very clear words in an Act such as that presently under consideration to produce such a conclusion. In my opinion the words used do not compel such an outcome. If the rule(s) infringed were regarded as of far reaching significance relevant prejudice could the more readily be concluded to exist."[162]

[470]

137. I respectfully suggest that the judgment in Sobh is better understood when regard is had to cases such as The Queen v Rogerson[163] (Rogerson), to which Ashley J referred. It was a case that required consideration of the words "administration of justice". Mason CJ said:

[471]

"... that the expression 'course of justice' is synonymous with the 'administration of justice'. In no relevant sense do the police administer justice, notwithstanding that they investigate crime, institute prosecutions (where appropriate) and assist in bringing prosecutions. As Lord Blackburn pointed out in Coomber v Justices of Berks ... [(1883) 9 AC 61 at 67] ' the administration of justice, both civil and criminal, and the preservation of order and prevention of crime by means of what is now called police' are separate functions and not one single function. ...

[472]

... The fact that police investigation stands outside the concept of the course of justice does not mean that, in appropriate circumstances, interference with a police investigation does not constitute an attempt or a conspiracy to pervert the course of justice."[164]

[473]

138. Brennan and Toohey JJ reached the same conclusion as Mason CJ saying that "The course of justice does not begin until the jurisdiction of some court or competent judicial authority is invoked."[165] Their Honours had earlier described "justice" and the "course of justice":

[474]

" Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case ...."[166]

[475]

139. McHugh J identified the beginning and end of the "course of justice" in the context of the offence of perverting the course of justice:

[476]

"It follows that for the purpose of the offence of perverting the course of justice, the course of justice does not commence in criminal proceedings until the laying of an information against or the arrest of an accused person .... In civil proceedings it does not commence until the institution of the civil proceedings. In both criminal and civil proceedings, the course of justice ends when the rights and liabilities of the parties have been finally determined and declared after 'an inquiry concerning the law as it is and the facts as they are determined' ..."[167]

[477]

140. It is apparent from The Queen v Rogerson that the expression "administration of justice" is an expression that has acquired a particular and quite confined meaning at common law. It is a meaning that:

[478]

"... would not extend to cover the activities of a Royal Commissioner charged with the responsibility of inquiring into possible breaches of the law. The functions of a Royal Commissioner are to investigate and report ... . A Royal Commissioner has no power to find a person guilty of an offence, or to convict a person of an offence. This being so, ... a Royal Commissioner is not concerned with the administration of justice in the ordinary sense."[168]

[479]

D.3 "enforcement or proper administration of the law"

[480]

141. Although I am considering s 37(1)(b), I will begin with s 37(1)(a) where the words "enforcement or administration of the law", rather than "enforcement or proper administration of the law" (emphasis added) appear. It provides:

[481]

"A document is an exempt document if its disclosure under this Act would or could reasonably be expected to:

[482]

(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or of a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance; ..."

[483]

142. When I look to the cases to which I have referred, s 37(1)(a) appears to me to have been carefully drafted with the principles they establish firmly in mind. Certainly, those cases were decided after the FOI Act was drafted and passed in its initial form but the common law relating to the offence of trying to pervert the course of justice has not changed.

[484]

143. Those cases have discussed the various concepts of the "course of justice", the "administration of justice" and the "administration of the law". In doing so and adapting the words of Brennan and Toohey JJ in Rogerson, those concepts have been clearly limited to the exercise by a court or competent judicial authority of its jurisdiction, be it civil or criminal, to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. They encompass the practice and procedure of the courts in the exercise of their jurisdiction but are not limited to it.

[485]

144. There are limits, though, and those limits are determined by the commencement of proceedings in a court or judicial body. In a criminal court, they begin with the laying of an information or summons, as the case may be, and in a civil court with the lodgement in the court of an originating process. Nothing preceding the commencement of the proceedings comes within any of the concepts. Therefore, investigations do not come within them. Whether criminal or civil proceedings are considered, anything that comes after the conclusion of those proceedings is not regarded as being in the "course of justice", the "administration of justice" or the "administration of the law". While it is the fact, and not the means, of conclusion that is the relevant thing, it must be remembered that a court's powers do not necessarily come to an end with, for example, its delivering a judgment in a civil matter. A superior court has powers that it may exercise when the administration of justice demands that it do so not only to prevent its processes from being abused but to protect the integrity of its processes once they have been set in motion.[169] This was adopted by the majority in Cardile v LED Builders Pty Ltd:[170]

[486]

"... The integrity of those processes extends to preserving the efficacy of the execution which would lie against the actual or prospective judgment debtor .... The protection of the administration of justice which this involves may, in a proper case, extend to asset preservation orders against third parties to the principal litigation. This appeal concerns the identification of such proper cases.

[487]

In Jackson v Sterling Industries Ltd,[[171]] Deane J referred to the armoury of a court of law and equity to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction. By this means, the risk of the stultification of the administration of justice is diminished. ..."[172]

[488]

145. Those drafting s 37(1)(a) appear to have had these principles firmly in mind. They expressly drew within the exemption an investigation of a breach or possible breach of the law, or a failure or possible failure to comply with a law relating to taxation. On the ordinary understanding of the concepts of "administration of the law", whether qualified by the word "proper" or not, investigations of that sort would otherwise have fallen outside the exemption established under s 37(1)(a). The fact that an investigation of that sort was expressly included suggests that Parliament intended the expression "administration of the law" to have the meaning given to it in cases such as Sobh and not its ordinary meaning.

[489]

146. That means that steps that are taken by an agency administratively when it finds a failure to comply with the law do not come within the notion of the "administration of the law". Therefore, administrative actions such as cancelling a visa under the Migration Act or recovering overpaid moneys through deductions from an ongoing social security payment are not regarded as part of the "administration of the law". They will, however, be regarded as "compelling compliance with obligations imposed by law" and so as part of the "enforcement ... of the law" in the sense understood in Corak and approved in Regina v L T Hardy and Kunakool v Boys. They represent acts that can be described as acts or processes of enforcing the law.

[490]

147. The indicators of when the enforcement of the law begins and ends would not seem to be so clearly defined as they are in the case of the "administration of the law". Cancellation of visas and recovery of overpaid monies may come far nearer the end of enforcement of the law than the beginning. Just where they start is open to question. Finding the start becomes relevant when considering whether investigative processes come within it. If it were proper to draw an analogy between the "enforcement of the law" and the "administration of the law", an investigation into whether a person had not complied with the law would not be regarded as encompassed within the notion of the "enforcement of the law". It would precede enforcement action of the sort I have described but not be part of it.

[491]

148. The analogy is not sound. Whereas the concept of "administration of the law" refers to matters that are connected with the judicial process, that of the "enforcement ... of the law" refers to administrative matters connected with enforcement. What is understood by the "administration of the law" has acquired a confined technical meaning but that of the "enforcement ... of the law" is much broader. It includes the act or process of compelling compliance with the law. Having regard to Kunakool v Boys, it extends to actions that precede what might be regarded as the final act of compulsion or enforcement. Those final acts might include cancellation of a right or entitlement or the recovery of monies but they may also extend to an act that may follow such an act. Deportation, for example, may follow the act of cancellation of a visa. It also extends to those acts that precede the final acts of enforcement. In Kunakool v Boys, for example, the marriages found by French J to be perverting the enforcement of the law, long preceded any final act of enforcement by the Department of Immigration and Citizenship. Given that acts preceding any investigation may be encompassed within the concept of the "enforcement of the law", it would seem to follow that acts amounting to the investigation in a particular case would come within s 37(1)(a).

[492]

149. On this interpretation, the exemption would not apply to documents whose disclosure would, or could reasonably be expected to prejudice the way in which an agency or Minister exercises discretions and makes decisions generally to grant or withhold the grant of rights and privileges under legislation for which it or he or she has responsibility. If the decision-making processes relating to, for example, whether a person has a particular entitlement under legislation were to be prejudiced in this way, exemption could not be claimed under s 37(1)(a). Those processes could be described as neither enforcement nor as proper administration of the law.[173] I emphasise that I have not referred to s 40(1)(d) in any way to construe the scope or operation of s 37(1)(a) and so of 37(1)(b). Rather, I have referred to it as an illustration of the pattern formed by the exemptions established under Part IV of the FOI Act. In so far as matters affecting the proper administration of an agency are concerned, I could just as easily refer to the exemptions created by s 36 in relation to internal working documents and by s 38 in relation to secrecy provisions. None limits the scope or operation of another. Each has its role to play. Looking at just the exemptions established by ss 36, 37, 38 and 40, it can be seen that Parliament has sought to achieve a balance between open government and the confidentiality necessary to ensure that Ministers and agencies can carry out their functions, ensure the enforcement of the law and the judicial administration of the law.

[493]

150. I note that s 37(2) refers to disclosure that would, or could reasonably be expected to, prejudice the fair trial of a person or the impartial adjudication of a particular case, or disclose certain investigations. I have paid no regard to that provision in interpreting the meaning of s 37(1)(a) (and so of s 37(1)(b) below) because of the provisions of s 32. Both sections are included within Part IV of the FOI Act. Section 32 provides:

[494]

"A provision of this Part by virtue of which documents referred to in the provision are exempt documents:

[495]

(a) shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents; and

[496]

(b) shall not be construed as not applying to a particular document by reason that another provision of this Part of kind mentioned in paragraph (a) also applies to that document."

[497]

D.4 "in relation to the ... enforcement or proper administration of the law"

[498]

I have considered the meanings of the words "enforcement or proper administration of the law" in the context of s 37(1)(a) because it is to be expected that their meaning will be consistent between ss 37(1)(a) and (b). There is a difference, of course, and that arises from the difference in the outcome that disclosure under the FOI Act would, or could reasonably be expected to have on, or in relation to the either. Beyond that, there is no difference.

[499]

152. Having decided that disclosure under the FOI Act would have the outcome described in s 37(1)(b), the exemption does not extend to all of the information that has come from the confidential source. Section 37(1)(b) exempts only the information, whether it came from that source or another, that would enable a person to identify that confidential source or, in an appropriate case, the existence or otherwise of such a source. To the extent that the information does not do that, it is not exempt under that provision.

[500]

153. I am satisfied that the investigations generally known as Operation Dachshund have been carried out in relation to the enforcement of a law. The law that is being enforced is that under the Migration Act as well as that under the Crimes Act. The investigations comprise various administrative steps that are directed to enquiring whether there has been, or is continuing to be, a breach of the law. Whether those investigations lead to a view that there has, or has not, been a breach of the law does not matter. It is the process of enquiring whether the law has been properly carried out or put into effect, and not any particular outcome, that comes within the concept of "enforcement ... of the law" in s 37(1)(b).

[501]

154. It is not only the formal investigations that come within Operation Dachshund that amount to enforcement of the law. The unsolicited receipt of information regarding possible breaches or failures to comply with the law is related to that enforcement. The use that is made of that information is not to the point provided that it has the necessary relationship to law enforcement. Analysis of information may have that necessary relationship. I will deal with examples of the various scenarios that arise when considering the application of the exemption to the documents below. I am satisfied that each document has been prepared and the information in it obtained in relation to the enforcement of the law.

[502]

155. It is apparent from those parts of Documents 798, 853 and 977, which are PPQs and which have been released to Mr Lobo, that the information for which exemption is claimed under s 37(1)(b) contains some type of information that identifies a person or persons who has or have given a witness statement and/or has been interviewed by FCIS. I am satisfied that they have given a statement or been interviewed in relation to the investigation that was Operation Dachshund. As that operation was an investigation into allegations of fraud under the GSMP, the statements were given and interviews conducted in relation to the enforcement of the law as I have explained that term.

[503]

156. That, however, is not enough to turn those who made the statements or who were interviewed from witnesses or potential witnesses or those who were simply making statements or being interviewed into "confidential sources". While each could be regarded as "... a person ... that can be used to provide information, evidence, etc ...",[175] there is nothing in the evidence that satisfies me that the statement was given under an express pledge of confidentiality. The context in which the information appears on folio 38 of document 798 and 18 of document 853 satisfies me that no such pledge can be implied. I have accepted that witnesses were interviewed on the understanding that the interviews were confidential.[176] That may have been the understanding at the start of the interview but it does not necessarily mean that it continued to be the understanding. Ms Pettit's evidence is to the effect that some of the witnesses did not want their names disclosed to Mr Lobo. No mention is made of disclosure to the wider world but I am left with the inevitable conclusion that there were some who either did not mind whether their names were disclosed or did not express an opinion on the subject. I have no way of knowing which is which and there is nothing in the documents that points me in one direction or the other. As the decision-maker carries the burden of proof, I am not satisfied that the persons identified in these documents provided information under an implied pledge of confidentiality. Therefore, they are not exempt under s 37(1)(b).

[504]

157. I note that my conclusion is consistent with the view expressed by O'Bryan J, with whom Young CJ and Vincent J agreed, in Croom when he said of

[505]

s 31(1) of FOIVIC:

[506]

"... The plain meaning one might ascribe to this paragraph is that it is concerned with protection of the 'informer' and not with the protection of a potential witness who would prefer not to be identified. Public interest has dictated for a long time that need to protect the true 'informer' but a reluctant witness has never attracted immunity at common law. ...

[507]

... The sources were confidential because they gave the information contained in their statements after being given (or offered) a promise of confidentiality.

[508]

In my opinion, the words 'confidential source of information' do not apply to a potential witness in a civil proceeding who would prefer to remain anonymous for the time being. A potential witness cannot clothe himself with secrecy in relation to the administration of the law unless he is able to invoke 'informer' immunity. Nor may an investigator confer upon a potential witness 'confidential' status until it is convenient to his principal to reveal the name of the witness."[177]

[509]

158. Documents 798, 853 and 977 each identify a place at which warrants were executed on 25 June 2007. Exemption is claimed under s 37(1)(b) in relation to that information where it appears in documents 798 and 853. The same information appears in document 977 but exemption is not claimed for it under this provision. A place cannot be a "source of information" in the sense in which that expression is used in s 37(1)(b). Unlike a "... person, book or document that can be used to provide information, evidence, etc ..." and so can be regarded as a source of information, a place at which a warrant is executed is a place from which information is obtained or collected. It does not provide information. Furthermore, even if a place could be regarded as a source of information, it cannot be regarded as a confidential source of information. "Confidential" in s 37(1)(b) does not mean private to the investigators or to the Department. The Full Court of the Federal Court decided in Jephcott that a reference to a "confidential source" is a reference to "... information ... provided under an express or implied pledge of confidentiality ...". That means that the information has to be provided by a human source for a pledge, whether express or implied, can only be given and received by humans to other humans and not by humans to inanimate places. Even if it could be said to provide information, the fact that the investigators or the Department may want to keep confidential the place from which any information was taken or sought, cannot confer confidentiality on the place. It cannot be a confidential source of information.

[510]

159. I do not accept that exemption under s 37(1)(b) has been properly claimed for these documents.

[511]

Category 5 documents: 152, 153, 238, 728, 737, 745, 762, 991

[512]

160. Exemption is claimed for a two line passage on folio 202 of Document 152. I am satisfied that it is exempt under s 37(1)(b). Given the content of the two paragraphs that precede it, the content of the passage could reasonably be expected to enable a person to ascertain the identity of a person who has given the Department information. It is clear from the passage in which it appears that it is a human source. There is no express pledge of confidentiality and there is nothing to suggest that it came to the Department by way of the Dob-In Line which holds out the promise of confidentiality. I am, however, satisfied from the text of the passage claimed to be exempt and its context that the source would want his or her identity to be confidential. He or she is a confidential source and has that role in relation to an alleged breach of the Migration Act. The two line passage on folio 202 for which exemption is claimed under s 37(1)(b) in relation to Document 152 is exempt under that provision.

[513]

161. Exemption is also claimed for the second half of folio 202 and the first third of folio 201 of Document 152. I am satisfied that this passage refers to an informant or informants and the information provided by him, her or them. I am satisfied that the name or names and details, including contact details, of the informant or informants appearing on folios 202 and 201 could reasonably be expected to enable a person to ascertain the identity of a source of information. Again, there is no express pledge of confidentiality but the content of the passage satisfies me that he, she or they would not want his, her or their identity to be known outside the confines of the Department. I am satisfied that he, she or they is or are confidential sources and that, as consequence, the second half of folio 202 and the first third of folio 201 of Document 152 are exempt under s 37(1)(b).

[514]

162. I am not satisfied that the remaining content of folios 202 and 201 could be used to enable a person to identify the identity of that confidential source or those confidential sources. There is nothing in the content that suggests that to me and there is no evidence to that effect. I have accepted Ms Pettit's evidence that witnesses were reassured that what they said would be confidential. Although he or she may do so, I am not satisfied on the evidence that I have that the person comes within that category. That content is not exempt under s 37(1)(b).

[515]

163. In so far as the passage might refer to information conveyed to the Department by one person but coming from a third party, that third party is not a confidential source of information in relation to the enforcement of the law. There is no suggestion that any information that might have come to the Department in that way is from a "confidential source". It is not exempt under s 37(1)(b).

[516]

164. For the reasons I have given in relation to folios 202 and 201 of Document 152, I am satisfied that the name or names and details, including contact details, of the informant or informants appearing in document 153 other than the name and other identifying details of a Departmental officer already released to the applicant is exempt under s 37(1)(b). For the same reasons, I am not satisfied that the remaining material claimed to be exempt under that document is exempt under

[517]

s 37(1)(b).

[518]

165. I am not satisfied that the passage on folio 19 of Document 238 is exempt under s 37(1)(b). There is nothing on the face of the passage to suggest that the information has any connection with a confidential source of information even though it is in relation to the enforcement of the law. The passage contains information obtained in various ways. In so far as it identifies persons giving information, those persons have provided that information in response to questions asked of them. That is not enough to make them a "confidential source of information" within the meaning of s 37(1)(b). I am not satisfied that they have given information on an express or implied understanding that it would be confidential. Their situation is not that of witnesses or potential witnesses but it is far closer to that than that of a "confidential source" protected by s 37(1)(b).

[519]

166. Exemption is claimed for most of folios 17 and 16 of Document 153. For the reasons I have given in relation to folios 202 and 201 of Document 152, I am satisfied that the name or names and details, including contact details, of the informant or informants appearing on folios 17 and 16 are exempt under s 37(1)(b). Apart from that, I am not satisfied that the remainder of the passage for which exemption is claimed could be used to enable a person to identify the identity of that confidential source or those confidential sources. There is nothing in the content that suggests that to me and, on the evidence, I am not satisfied that an implied pledge of confidentiality arises.[178] That content is not exempt under s 37(1)(b).

[520]

167. I have come to the same conclusions in relation to the same or similar passages found in Documents 728, 737, 745, 762 and 991. They are exempt under

[521]

s 37(1)(b) in so far as they show the name or names and details, including contact details, of any informant or informants appearing in them. That is the information in relation to which the exemption has been claimed.

[522]

168. The Department's solicitors have kindly colour coded the documents according to the exemption or exemptions claimed. No passage has been coloured on Document 346 in the colour allocated to a claim for exemption under s 37(1)(b) but it appears from the Schedule of Documents attached to Ms Creaner's affidavit that the exemption is claimed. That Schedule states that the excluded information concerns an unrelated court proceeding involving a departmental informant, the name of the migration agent under investigation and the name, address and signature of the Departmental informant. When document 346 is read in its entirety, it would seem that the claim for exemption relates to the whole of the document.

[523]

169. If it were the case that an unrelated court proceeding were used as the source of the information, it is not a confidential source for the purposes of s 37(1)(b). As the information on the first page of Document 346 released to Mr Lobo shows, the information appears to have been obtained from allegations contained in an affidavit lodged by, or on behalf of, the unnamed person in the course of litigation. That cannot be described as a "confidential source" and Document 346 is not exempt under s 37(1)(b).

[524]

Category 7: Documents 139 and 597 and Documents 509, 596 and 1019

[525]

170. Category 7 contains documents concerning various allegations about SICB. The first is Document 139. It is a letter addressed to the Department and it is clear from the small amount released to Mr Lobo that it complains about someone for his "criminal conduct" and asks that the conduct be investigated. A complaint does not mean that a person is automatically a confidential source of information. There must be something more. On its face, there is nothing to suggest that the author has made the complaint in confidence. The fact that the author has complained does not raise that suggestion by itself. No reference is made to the Dob-In Line and, in the absence of even an oblique reference, it is difficult to find that the writer of the letter was relying on the Department's undertaking to treat allegations in confidence. Having regard to all of these matters, I am not satisfied that the author is either a source of information or a confidential source of information. I am not satisfied that any part of Document 139 is exempt under s 37(1)(b).

[526]

171. For the same reason, I am not satisfied that Document 597, which is a letter of complaint to the Department, is exempt in any respect under s 37(1)(b).

[527]

172. Exemption is claimed for the entirety of Documents 509, 596 and 1019. Document 509 is a chain of two emails between Departmental officers attaching photographs obtained from a third party as a result of Operation Dachshund. There is a name appearing on the email that does not belong to either of the officers and it would be reasonable to expect that the subjects in the photographs would be identifiable. I am not satisfied, though, that the photographs come from a confidential source of information within the meaning of s 37(1)(b) or that they identify such a source. The fact that the photographs were obtained during Operation Dachshund does not of itself lead to that conclusion. If, for example, they were obtained during an interview of a person, that does not necessarily make the person a confidential source. Witnesses were offered confidentiality but, as I have explained above, some wanted their identity protected, at least from Mr Lobo but, presumably, others did not, did not mind one way or the other, or had no view. In the absence of anything on the face of the material that leads me to the conclusion that there was an implied, let alone an express, pledge of confidentiality, I am not satisfied that the person can be regarded as a confidential source of information. I am not satisfied that Document 509 is exempt under s 37(1)(b).

[528]

173. Document 1019 is the first email in the chain that continues in Document 509. For the same reasons, it is not exempt under s 37(1)(b).

[529]

174. Document 596 is a chain of emails between the Department and an individual. It is a source of information in one sense but the document raises the question as to where the line is drawn between a complaint and a source of information. I have decided that I do not need to address this issue. If the individual is regarded as a source of information, he or she would be regarded as that in relation to law enforcement. The material relates to matters of the sort under investigation in Operation Dachshund. He or she is not, however, a confidential source. There is nothing in the text that suggests that the information was proffered on the understanding that he or she and the Department had a relationship of confidentiality. Although the classification of a document is not determinative of whether there is such an understanding, I note that the chain of emails has been classified as "Unclassified". I am not satisfied that it is exempt under s 37(1)(b).

[530]

Category 9: Documents 564, 570, 571, 577, 620 and 723

[531]

175. Document 564 is a receipt issued by SICB to a person for a payment made by that person. Documents 571 and 577 are receipts issued by the Department. Exemption is claimed for the names of the third parties. This is not a situation in which it can be said that those persons have provided information in the sense of being a confidential source of information. That is certainly the case in relation to Document 564 where the manner in which the document came into the hands of the Department is not clear to me. It might be that it was ceased under the warrant but, if that were the case, it would not make the recipient of the receipt a confidential source of information. If the person gave the Department a copy of the receipt, it would not, without more, make that person a confidential source of information. On the information I have, I am not satisfied that it was provided under an express or implied pledge of confidentiality. Documents 564, 571 and 577 are not exempt under s 37(1)(b).

[532]

176. Documents 570 and 620 comprise handwritten notes by a Departmental investigator with a third party. Each names a person described either as a witness or as an informant and Document 620 identifies migration agents or a migration agent under investigation. Again and in so far as the documents reveal information given to the Department by any person, I am not satisfied that the persons were giving information on the basis of an implied or express pledge of confidentiality. There is nothing on the face of the document to suggest that. I am not satisfied that they are exempt under s 37(1)(b).

[533]

177. Document 723 differs from Document 596 in that it is classified as "DIMA-IN-CONFIDENCE". It is a chain of emails between Departmental officers regarding SICB and allegations of fraud that had been made about it. It reveals the name of a person described as the "original informant". It is the name in relation to which exemption is sought. The material at the beginning of folio 166 leads me to conclude that the person approached the Department with information and was concerned lest that fact became known to SICB. I am satisfied that the person is a "confidential source of information". The subject of the allegations was in relation to law enforcement in the sense that it raised issues whether the applications were being made and, therefore, decided on proper bases as permitted by the Migration Act. Document 723 is exempt under s 37(1)(b).

[534]

178. Exemption is claimed under s 37(2)(b) for a passage at the end of the second page, of folio 75, of Document 112. This document is described in the Schedule of Documents provided by the Department as a minute from one of the Department's investigators in Operation Dachshund regarding a third party. Exemption is claimed for the passage I have identified on the basis that it is information provided by a Departmental informant which is likely to identify the informant. Exemption is claimed for similar passages appearing in Documents 962 and 963.

[535]

179. I am not satisfied that the person identified in the passage can be regarded as a confidential source of information. Persons who are approached during an investigation for information, whether they are asked to provide witness statements or not, do not become sources of information as understood by s 37(1)(b) on that basis alone. The document in which the information appears is marked "IN-CONFIDENCE". On its own that would not be enough to satisfy me that the person providing the information wished to be regarded as a confidential source. The subject matter of the passage does not assist me. There is nothing in it that suggests that the person wished to give information on a confidential basis. On the evidence, I do not know whether this is a person who expressed a wish to have his or her identity kept from Mr Lobo. I might speculate that a person might prefer that but it would be mere speculation. I am not satisfied that the passage for which exemption is claimed would be reasonably expected to disclose the identity of a confidential source of information. Therefore, none of Documents 112, 962 or 963 is exempt under s 37(1)(b).

[536]

180. Document 1018 comprises a chain of emails among officers of the Department. It is headed "Re: audit on Sydney International College of Business". A passage at the bottom of folio 117 and the top of folio 118 is said to contain information disclosed to investigators by confidential sources. It is said that disclosure of the passage is likely to identify those confidential sources.

[537]

181. I am satisfied that the passage contains information that might identify the person or persons who gave it. I say "might" because it would need to be taken with other information in order to come to a precise identification. That other information would not necessarily be known to anybody other than a select circle. I do not need to consider that matter further or try to reach a decision whether disclosure of the identity of the person or persons would be reasonably likely because I am not satisfied that the person or persons can be regarded as confidential sources of information. He, she or they have been interviewed by investigators in the course of the investigation. That alone does not make a person a confidential source of information.

[538]

182. There is nothing that states that the interview was conducted on the basis of an express pledge of confidentiality. I note that the document has an "unclassified" classification but that reference is made in the document itself to a person's or persons' not wanting to be identified. In view of that, I am satisfied that the information was obtained under an implied pledge of confidentiality. As it was a confidential source in relation to Operation Dachshund, it was a confidential source in relation to the enforcement of the law. I am satisfied that Document 1018 is exempt under s 37(1)(b).

[539]

183. Document 956 is a series of emails among officers of the Department and of State education authorities. It names a person and exemption is claimed on the basis that it reveals a Departmental informant. I do not accept that claim. It certainly names a person but that is a person who has made a statement and who, as appears from the face of the document, has spoken with journalists and provided those journalists with a copy of that statement. If this person was a confidential source of information, I am not satisfied that he or she remains so. The person has renounced any relationship of confidentiality was lost when the person interacted with the media as he or she did. There is nothing wrong with doing that but the Department cannot protect confidentiality when the person whom s 37(1)(b) may be able to protect casts confidentiality aside. I am not satisfied that Document 956 is exempt under s 37(1)(b).

[540]

184. If it should be that my analysis is incorrect in the previous paragraph, I arrive at the same conclusion by a different route. The attachment referred to in the email is not attached to Document 956. I have no basis on which I can find that the statement was given on that basis of an implied relationship of confidence between the person and the Department. I do not know whether the person was one to whom the Department made express statements regarding confidentiality. In any event, the person's subsequent actions make it clear that he or she does not wish to preserve any relationship of confidence between him or her and the Department. It seems to me that I can take account of his or her actions subsequent to speaking with officers of the Department in order to determine whether he or she is a confidential source at the date of my decision. The exemption provided in s 37(1)(b) is intended to ensure that the enforcement or administration of the law is not prejudiced. It is not framed in terms of prejudice but in terms of a particular prejudice i.e. the protection of confidential sources from which public administration may gain information that it requires for the enforcement or proper administration of the law. If a person, who has given information to an agency, chooses to forego confidentiality at some time in the future and to disclose that he or she has given information to that agency, how can it be said that the person remains a confidential source? He or she has revealed him or herself as a source and there is no longer a place for the operation of the exemption.

[541]

Category 17: Documents 286, 287 and 997

[542]

185. The colour coding system has not quite worked on Documents 286, 287 and 997. Therefore, I have no indication of the passage claimed as exempt under s 37(1)(b). I know from the Schedule of Documents that exemption is claimed on the basis that the name and other identifying information about a visa applicant under investigation appears in the passage together with the name of a migration agency and agency also under investigation. None of this is exempt under s 37(1)(b). The passage to which the claim for exemption may relate appears at the foot of folio 297 and top of 296 of Document 286, the bottom of folio 294 and top of 293 of Document 287 and the bottom of folio 46 and top of folio 45 of Document 997. The passages refer to information that has come to the Department from a person or persons. From their content and context, I am not satisfied that it is information that identifies a confidential source or sources of information. Even if it were, there is nothing to suggest that the information was given in confidence. The fact that information was given does not raise that suggestion by itself. I am not satisfied that the author is or the authors are either a source or sources of information or a confidential source or sources of information. I am not satisfied that any part of Documents 286, 287 or 997 is exempt under s 37(1)(b).

[543]

186. Document 140 is a Minute from one officer of the Department to another and assesses allegations made in relation to certain persons and the SICB. Exemption is claimed for the document under s 37(1)(b) in relation to the passage beginning at the bottom of folio 237 and extending to the top of folio 237. This passage contains information about certain persons. In so far as any person or persons are recorded as having provided information, none has done so as a "confidential source of information". That is not an apt description to apply to persons who provide information because, for example, they are being interviewed, making a witness statement or making a complaint. For the reasons I have given earlier, there has to be something more; something on which I can find an express or implied pledge that the information was given on a confidential basis. As the passage comprises information of this sort, I am not satisfied that it is exempt under s 37(1)(b).

[544]

187. Document 285 is a document prepared by the Department and is headed "Complaints against Sydney International College of Business". Exemption is claimed for that part of the document appearing at folio 299 and summarising allegations made to VETAB concerning possible breaches to the ESOS Act. Exemption is claimed under s 37(1)(b) on the basis that the information, when received from VETAB, was treated by the Department as confidential and not disclosed other than for the purposes of investigation and enforcement purposes.[179]

[545]

188. While I accept that the Department has treated the information as confidential, I am not satisfied that the information would disclose a confidential source. Other than the fact that the information was initially given to VETAB, there is no evidence of the way in which that information came to it. It might have come as an allegation or as a consequence of a person's approaching VETAB for another matter. There is no evidence that the information was received on the basis that it would be treated in confidence so that the person supplying it could be regarded as a "confidential source of information". I am not satisfied that Document 285 is exempt under s 37(1)(b).

[546]

189. Document 140 is described as a Departmental document entitled "Investigation Plan for SICB and third party". It contains information identifying persons who have made allegations to the Department about the conduct of migration agents as well as other information. There is nothing on the face of the document that suggests that those persons gave the Department information on the basis of an express undertaking that it would be treated in confidence. There is nothing on the face of that information from which I can imply that it was given on the basis that it would be kept confidential. Some might want to give information on that basis and others might not. On the evidence, I am not satisfied that the persons are confidential sources within the meaning of s 37(1)(b). Document 140 is not exempt under that provision.

[547]

190. Document 399 is a Ministerial Intervention Request made in relation to a visa held by a person described as a "Departmental informant". It includes a number of attachments. I am not satisfied that the person is a confidential source of information of the sort described in s 37(1)(b). The fact that the Department has obtained information from a person or gleaned information about that person is not sufficient without something more from which I can find that the information was given on the basis of an express or implied basis of confidence. I am unable to make that finding in this instance for the reasons I have given in relation to earlier documents.

[548]

191. Document 1001 is not referred to in the Schedules to Ms Creaner's second affidavit and is not referred to in the Schedules of Documents that are no longer in contention for one reason or another. The reasons I have given in the previous paragraph apply equally to this paragraph. It is not exempt under s 37(1)(b).

[549]

192. Document 523 is an email from what is described in the Schedule as a "third party" to an investigator working on Operation Dachshund. Exemption is claimed for the name and contact details of a person described as a "departmental informant". From the information in the document, I cannot tell how that person came to give the information to the department but I do find that the person states that information is given in confidence. In view of that, I am satisfied that the person is a "confidential source of information" within the meaning of s 37(1)(b). I am satisfied that the information claimed to be exempt is exempt under s 37(1)(b).

[550]

193. Document 1016 has a chain of emails between the Department and another person regarding teachers at the SICB. Exemption is claimed for the name and contact details of the person communicating with the Department on the basis that the person is a "departmental informant". The person has specifically asked that his or her name not be used. In light of that and against the background of the investigation that was ongoing at the time, I am satisfied that the person is a confidential source and that the document is exempt under s 37(1)(b) in respect of that information.

[551]

Category 9: Documents 53, 469, 472, 482, 483, 485, 527, 547, 549, 550, 570, 650, 692, 693, 1017, 1020

[552]

194. Document 53 is a file note written as part of Operation Dachshund regarding a telephone conversation with a person said to be a "confidential informant". Again, I am not satisfied that the document is exempt under s 37(1)(b) in respect of that information. I am not satisfied on the material that it was given under any express or implied pledge of confidentiality

[553]

195. Document 469 is a facsimile message from a person to the Department attaching a copy of a document belonging to SICB. Exemption is claimed on the basis that it names a departmental informant and the document itself is likely to identify that person. From the document, I may be able to identify the person said to be the departmental informant and the nature of the information conveyed to the Department. I have been unable to glean on what basis that information came to be passed. I am, however, able to imply from its text that it was given in confidence but that is not enough to satisfy me that the person was a confidential source of information. I am satisfied that the document is exempt under s 37(1)(b) in respect of that information. My reasons are the same as those I have given in relation to Document 523.

[554]

196. Documents 472, 482, 483, 485, 527, 547, 549, 570, 650, 692 and 693 are file notes by a Departmental officer made during Operation Dachshund and recording conversations with witnesses. Exemption is claimed under s 37(1)(b) on the basis that the note contains information likely to identify the witnesses. For the reasons I have given earlier, a witness cannot be regarded as a confidential source of information simply by virtue of being a witness. There must be something more and there is not. They are not exempt under s 37(1)(b).

[555]

Document 550 is a file note setting out the names and contact details of teachers at SICB. A list of names does not amount to a list of confidential sources of information. All that it amounts to is a list of names of teachers compiled from some source or other. It is not exempt under s 37(1)(b).

[556]

198. Documents 1017 and 1020 are emails between officers of the Department summarising information that has been given by a person or persons who has or have given information to the Department and that is likely to identify that person or those persons. I agree that the information in the documents is reasonably likely to identify the person or persons who provided some or all of the information. On the evidence I have, I do not know the basis on which that information was given. Was it given by a witness, as a result of an interview or was it given after being given an undertaking that confidentiality would be maintained? I am unable to answer these questions and so am not satisfied that the person is a confidential source of information. Documents 1017 and 1020 are not exempt under s 37(1)(b).

[557]

Category 18: Documents 25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76 and 60, 64, 65, 70, 78, 81, 82, 83, 84, 85, 261 and 263 and 1023, 1074, 1083, 1084 and 1089

[558]

I have divided the documents in Category 18 into four groups.

[559]

(i) Documents 25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76

[560]

Each of the documents in this group is a document from SICB which has been attached to a witness statement prepared during the course of Operation Dachshund. The text of the witness statement and any other attachments to it are not included in the document. The documents, which are described in the Schedule of documents include Class Attendance Registers, Practical Tests, Program Guides, Results Registers, Performance Registers and a cleaning roster. I have no evidence as to the manner in which these documents came into existence, were used and stored. If I had, it might be possible to say that they could only have come to the Department in one way. I do have evidence that warrants were executed. That is a possible means by which the Department obtained the documents. Investigators interviewed a number of people including staff at the SICB. That is another avenue. It may be that some were given to it by "informants". It may be that they were given to the Department on a confidential basis. It may be that they were not. On the evidence, I can only speculate. An examination of the documents takes me no further. I am not satisfied that they are exempt under s 37(1)(b).

[561]

(ii) Documents 60, 64, 65, 70, 78, 81, 82, 83, 84, and 85

[562]

201. Each of these documents sets out notes of conversations with persons described as witnesses in Operation Dachshund. For the reasons I have given earlier, the fact that a person is a witness does not of itself make them a confidential source of information. There is nothing in the text of the notes that suggests to me that any of the persons interviewed was such a source. I am not satisfied that the documents are exempt under s 37(1)(b).

[563]

202. Document 261 is a computer printout from a website. It contains information about a person whom it identifies. It is claimed to be exempt on the basis that it contains information that may identify a witness. The fact that it is a document that comes within the terms of Mr Lobo's request may indeed lead to that conclusion. That does not make the person a confidential source of information within the meaning of s 37(1)(b). As there is nothing more to show how the person came to be a witness in Operation Dachshund and to give information, if he or she did, I am not satisfied that the document is exempt under s 37(1)(b).

[564]

203. Document 263 is an email between officers of the Department discussing a forthcoming interview with a person who has, or will, give a statement. Exemption is claimed on the basis that disclosure may identify the person who is described as a witness. For the reasons I have given above in relation to persons who are described in that way and in the absence of anything in the document itself that persuades me that the person is a confidential source of information, I am not satisfied Document 263 is exempt under s 37(1)(b).

[565]

(iv) Documents 1023, 1074, 1083, 1084 and 1089

[566]

204. Document 1023 is a chain of emails between an officer of the Department and a third party. They are entitled "SICB". I am not satisfied that it would identify a confidential source as that term is used in s 37(1)(b). There is no express statement that the information contained within it is confidential or that the exchange is being conducted on the basis of confidentiality. The classification given to the chain of emails is "unclassified". The subject matter does not contain anything that satisfies me that there was an implicit understanding of confidentiality. Reference is made to an attachment but it does not appear as part of Document 1023. I am not satisfied that the document is exempt under s 37(1)(b).

[567]

205. Documents 1074, 1083, 1084 and 1089 are internal emails referring to information that would identify third parties who have, or might help, the Department in its investigations. I am not satisfied that any of them would, or could reasonably be expected to, disclose a confidential source. There is no evidence that any of the third parties has given information on the basis of an express pledge of confidentiality or that they will or may do so. The emails are marked "unclassified" and the subject matter does not lead me to find that such a pledge is, or would be, implicit in their giving information to the Department. Therefore, I am not satisfied that the documents are exempt under s 37(1)(b).

[568]

"A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

[569]

(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; ...

[570]

"would, or could reasonably be expected to" disclose certain matters that "would, or would be reasonably likely to" have the stated consequence

[571]

207. I have already set out general principles in relation to when a defined outcome "would, or could reasonably be expected to" follow from disclosure under the FOI Act. They are equally applicable to the interpretation of s 37(2)(b) where the defined outcome is disclosure of the methods or procedures it describes.

[572]

208. Where s 37(2)(b) differs from exemption provisions such as s 37(1)(b) or even ss 33(1)(a)(ii) and (b) is that the defined outcome is not itself defined in what might be thought to be absolute terms. The defined outcome is first defined by reference to methods or procedures that have two qualities. The first is that they are methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law. If they are, the exemption does not apply unless the second quality is also present. The second is that they are methods or procedures whose disclosure "would, or would be reasonably likely to" prejudice their effectiveness.

[573]

209. Whether something "would" have a certain outcome is the same whether that word appears in other company in the expression "would, or would be reasonably likely to" or "in the expression "would, or could reasonably be expected to" have that outcome. It signifies that the outcome is probable as I have explained above so that the evidence establishes that disclosure must as a logical or necessary consequence have the ability to (and so "would") bring about that outcome.[180] As for whether the outcome "would reasonably be expected to" or "could be reasonably likely to" follow from disclosure, the word "reasonably" carries the same meaning. It derives from the word "reasonable" whose ordinary meanings are those of "sensible; rational; showing reason or good judgment ..."[181].

[574]

210. There is little to choose between the words "expect" and "likely". As I have said, it means "to think of something as likely to happen or come ..." and the ordinary meanings of "likely" include that of "probable",[182] "... having an appearance of truth or fact; seeming as if it would happen, or prove to be as stated; probably ..."[183] and ".... probably or apparently going or destined (to do, be, etc): likely to happen. ... seeming like truth, fact or certainty, or reasonably to be believed or expected; probable ..."[184]

[575]

211. When analysed, it seems to me that the expressions "would, or could reasonably be expected to" and "would, or would be reasonably likely to" lead to little practical difference. Whether disclosure of the lawful methods or procedures referred to in s 37(2)(b) "would, or would be reasonably likely to" prejudice their effectiveness must be decided on the basis of whether, when considered on a rational, as distinct from irrational, absurd or ridiculous basis, it is probable that disclosure under the FOI Act will prejudice their effectiveness.

[576]

212. "Prejudice" to the effectiveness of the methods or procedures would, or would be reasonably likely to follow disclosure under the FOI Act before the exemption in s 37(1)(b). The meaning of "prejudice" in this context is that of "... harm; detriment; disadvantage ...".[185] The harm, detriment or disadvantage is to the ability of the methods or procedures to prevent, detect, investigate or deal with matters arising out of breaches or evasions of the law.[186]

[577]

213. The way in which the exemption has been applied appears in the reasons for decision by two differently constituted Tribunals. The earlier reasons were prepared by The Hon GD Clarkson QC, Senior Member, Mr Wilkins and Dr Billings, Members in Re Mickelberg and Australian Federal Police.[187] They said:

[578]

"... in the public interest it is essential that law enforcement agencies have speedy, accurate and secure systems of communication, both within an agency and between agencies especially where agencies have different fields of responsibility. Secondly, it is one thing for observers to deduce, with varying success from everyday experience media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agencies (sic), own documents or in the proceedings of a Tribunal such as this what those methods and procedures are. The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them."[188]

[579]

214. A similar approach was taken by Senior Member Beddoe in Re Murphy and Australian Electoral Commission[189] when he considered a request for access to documents setting out what the Australian Electoral Commission (AEC) considered to constitute valid and sufficient reasons for a person's failure to vote in a Federal election. In finding that the documents were exempt under s 37(1)(b), Senior Member Beddoe referred to the AEC's having guidelines so that its divisional returning officers might make consistent decisions as to whether or not an elector had a valid and sufficient reason for failure to vote at an election. He continued:

[580]

"... [T]he divisional returning officers are required to rely primarily on the responses to their Penalty Notices. It is clear, on the material that they do not conduct face to face investigations with each defaulting voter and that they rely, to a large extent, on the honesty of the responses. That procedure depends upon those responses being a frank and factual statement of the facts rather than an excuse which is known to be an acceptable excuse to the electoral office. ... The techniques adopted by the electoral office in the administration of s 245 of the Electoral Act are, in my view, lawful methods or procedures for detecting investigating or dealing with matters arising out of breaches of s 245 of the Electoral Act and the disclosure of those methods or procedures would or would be reasonably likely to prejudice the effectiveness of those methods or procedures. ..."[190]

[581]

Category 9 documents: 267, 271, 290, 322 and 1009 and 486, 662 and 1009

[582]

215. Each of these documents is said to discuss or disclose methods of investigation used by FCIS or TRA to investigate breaches of the Migration Act. I am satisfied that those methods are lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the Migration Act. I am satisfied that disclosure of the documents under the FOI Act would disclose those methods let alone "could reasonably be expected" to do so.

[583]

216. Section 37(2)(b) is not concerned with prejudicing the conduct of a particular operation. If any of the documents raises concerns about persons' becoming aware of Operation Dachshund, that would not be a relevant consideration under this provision as a matter of law. Apart from that, it would not be a relevant consideration as a matter of fact. The existence of the operation is known and, in any event, it has come to an end.

[584]

217. In her affidavit, Ms Creaner said that the methods or procedures referred to in these documents are not commonly known to visa applicants, migration agents or members of the public. They are methods commonly used by FCIS and other agencies to investigate possible breaches of the Migration Act.[191] Ms Creaner was referring in particular to the documents in Category 16 but she has given the same evidence in relation to the documents in the other categories.[192]

[585]

218. The difficulty that I have with the application of s 37(2)(b) in a case such as this always turns on whether disclosure will prejudice the effectiveness of those methods or procedures. The very fact that they must be lawful methods or procedures means that they may be regulated in some way or, if not regulated, would be generally available. It may be that they are not thought about by members of the general public but, against that, it can be said that they can easily be ascertained as can those who may use them. After all, everyone is, subject to certain qualifications, presumed to know the law.[193] Those qualifications have no place in this context.

[586]

219. On my reading of it, there is nothing in the information sought to be exempted that could be said to fall outside the realm of methods of procedures that could be readily contemplated by a person wishing to act in breach of the Migration Act. Reference is made to them from time to time in the various forms of news reporting, in the theatre, at the cinema, on the television and in books, both fiction and non-fiction. They are all known. Given that context, I am not satisfied that their disclosure under the FOI Act will prejudice their effectiveness. What could reasonably be expected to prejudice their effectiveness would come about if those who intend to act in breach of the Migration Act or who in fact do so turn their minds to what is publicly available and believe that it is possible that they could come under suspicion. Disclosure under the FOI Act cannot be reasonably expected to play any part in their coming to that point of view.

[587]

220. For these reasons, I am not satisfied that the documents, or parts of them for which exemption is claimed, are exempt under s 37(2)(b).

[588]

In so far as it is relevant in this case, s 40(1) provides:

[589]

"Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

[590]

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; ...

[591]

Section 40(2), which qualifies s 40(1)(d) provides:

[592]

"This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest."

[593]

"would, or could reasonably be expected to"

[594]

222. I adopt my discussion of this expression at [207]-[211] of Attachment E above.

[595]

223. The words "substantial adverse effect" have been considered in a number of cases. Beginning with the word "substantial", its ordinary meanings include that of "... considerable in amount, extent, importance, etc ...".[194] In considering the meaning of the expression "substantial loss or damage", Bowen CJ said in Tillmanns Butcheries Pty Ltd v. Australasian Meat Employees Union & Ors[195]:

[596]

"The word 'substantial' would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable (see Palser v. Grinling [1984] 1 ALL Er 1; [1984] AC 291 at 316-7). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word imports a notion of relatively, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business."[196]

[597]

"The word 'substantial' is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision. In the phrase 'substantial loss or damage', it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size ... As at present advised, I incline to the view that the phrase, substantial loss or damage, in s45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal. It is, however, unnecessary that I form or express any concluded view in that regard, since the ultimate conclusion which I have reached is the same regardless of which of the alternative meanings to which reference has been made is given to the word 'substantial' in s45D(1)."[197]

[598]

224. In Harris v Australian Broadcasting Corporation and Others,[198] Beaumont J considered whether reports of an independent review of the Legal Department of the respondent were exempt within the meaning of s 40(b) of the FOI Act as it was then enacted.[199] His Honour found that it was possible that the reports could embarrass those charged with supervising or reviewing the operations of the Legal Department but went on to say:

[599]

"However, I am not persuaded that any such effect, even if adverse, could fairly be described as 'substantial' in its impact. In my view, the insertion of a requirement that the adverse effect be 'substantial' is an indication of the degree of gravity that must exist before this exemption can be made out."[200]

[600]

Muirhead J has also considered the expression "substantial adverse effect" as it appears in s 40 in the case of Ascic v Australian Federal Police.[201] He made specific reference to Beaumont J's use of the word "gravity" which caused him some difficulty. In Muirhead J's view:

[601]

"'Substantial' is a word of common usage which can stand on its own feet and the work ascribed to it in statutory interpretation will depend on the statute and of course the issues under consideration. Deane J gave detailed consideration to the word in Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union (1979) 27 ALR 376 at 382. Whilst the court there was considering an application under s. 45D of the Trade Practices Act 1974 which refers to 'substantial loss or damage' his Honour's words that 'substantial loss or damage ... includes loss or damage that is in the circumstances, real or of substance and not insubstantial or nominal' appear to me to be appropriate to most circumstances and closer to the plain meaning of the word and its dictionary interpretations."[202]

[602]

226. In the same year as Muirhead J published his judgment in Ascic, the Tribunal reached the conclusion that a "substantial adverse effect" "connotes an adverse effect which is sufficiently serious or significant to cause concern to a properly informed reasonable person".[203]

[603]

227. Deputy President McMahon summarised the effect of these authorities when he considered the same expression, "a substantial adverse effect", when used in the context of s 39 of the FOI Act. He did so in Re Connolly and Department of Finance[204] when he said:

[604]

"_... There must be a degree of gravity before this exemption can be made out (_Harris v Australian Broadcasting Corp ...); the effect must be 'serious' or 'significant': Re James ... Normally a value judgment has to be made as to whether an adverse effect is or is not substantial when considering exemptions claimed under other sections. ..."[205]

[605]

"proper and efficient conduct of the operations of an agency"

[606]

228. If a claim under s 40(1)(d) is to succeed, the substantial adverse effect that would, or could reasonably be expected to occur must be on the "proper and efficient conduct of the operations of an agency". The ordinary meaning of the word "operations" in this context is:

[607]

"...4a An act of a practical or technical nature, esp. one forming a step in a process. ... b ...Also, a business concern or enterprise..."[206]

[608]

229. In Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another,[207] Davies, Wilcox and Einfeld JJ rejected a submission that the "conduct of an agency" could be limited to matters related to the internal administration of an agency such as a report by an outside agency or a consultant on its operations. They adopted the view of Deputy President Hall in Re James and Australian National University[208] that the expression extends "to the way in which an agency discharges or performs any of its functions".[209] The issue for the Tribunal in Re James and Australian National University was considered in the context of a request for documents recording lecturers' comments in student record sheets together with the names of examiners of honours theses and their tentative grades. Deputy President Hall said that:

[609]

" The question, in the present case, therefore, is whether the expression 'the conduct of the operations of an agency', when applied to the University, extends not only to the way in which it carries out its 'administrative' operations, but also its 'academic' operations. ...

[610]

As a matter of ordinary English I think that the expression 'the conduct of the operations of an agency' is capable of extending to the way in which an agency discharges or performs any of its functions. So construed, I agree with Mr Toper that it is capable of extending to the discharge by the University of its academic functions in relation to the awarding and conferring of degrees and diplomas (see s. 6 of the Australian National University Act 1946 (Cth))."[210]

[611]

230. The occurrence of the substantial adverse effect does not have to be proved as an absolute. The Secretary need only establish that disclosure under the FOI Act "would, or could reasonably be expected" to lead to the designated outcome i.e. a substantial adverse effect on the proper and efficient conduct of the Department's operations. I have already set out the meaning of this expression in relation to s 37 above.[211]

[612]

231. The onus of proof imposed on an agency by s 61(1) of the FOI Act is not irrelevant in considering a claim for exemption. That is an onus imposed on an agency to establish that a decision it has given in respect of a request was justified. Taking a decision that a document is an exempt document, the practical consequence of the onus is that, if the agency is to succeed in those proceedings, it must ensure that the Tribunal has sufficient evidence to establish its claim on the balance of probabilities. Generally, an agency will want to produce that evidence itself to the Tribunal. There is, however, nothing to prevent it from relying on evidence produced during the proceedings by the applicant for review or any party joined to the proceeding. When it makes its initial decision, the agency's position is no different. Rather than satisfying the Tribunal, the decision-maker must satisfy him or herself on the balance of probabilities that the document is an exempt document. That will mean that the decision-maker must look to the evidence before making a decision. If the decision is not supported by the evidence, the decision should not be made. A decision to refuse access on the basis that a document is an exempt document without a proper evidentiary basis, for example, would be a decision that would seek to diminish the right that Parliament has given to every person by means of s 11(1) i.e. the right, subject to the other provisions of the FOI Act to obtain access in accordance with this Act to a document of an agency or an official document of a Minister other than an exempt document.

[613]

232. The evidentiary basis on which a decision is made in applying the exemption provisions in the FOI Act underpins the comments made by the Tribunal in Re Williams and Registrar of the Federal Court of Australia[212] of the difficulties faced by an agency when there is no proper evidentiary basis in the first place. The Tribunal was considering a claim that assessments of the work capacity of the four most highly-rated applicants for a position in the Registry of the Federal Court and a document showing the order of merit of five of the applicants were exempt under

[614]

" As has been mentioned, it is possible that s 40(1)(c) of the Act could justify the refusal of access in the present circumstances. However, in my opinion, no case has been made out here for the application of that provision. No attempt was made here to demonstrate, by evidence or otherwise, that the 'substantial' adverse effect contemplated by s 40(1)(c) would or could reasonably be expected to occur (see Harris v Australian Broadcasting Corp [1983] FCA 242; (1983) 50 ALR 551 at 545; [1983] FCA 242; 5 ALD 545; Public Service Board v Scrivanich (1985) 8 ALD 44; cf Re Witheford v Department of Foreign Affairs _(1983) 5 ALD 534 at 544). The difficulties in now establishing such a case are formidable (_Science Research Council v Masse [1980] AC 1029 at 1065, 1070-1, 1080-1, 1085; cf Sankey v Whitlam (1978) 142 CLR 1 at 40, 62-3, 97). It follows, in my view, that the documents now in question are also not protected by this provision."[213]

[615]

233. In Sankey v Whitlam,[214] to which the Tribunal referred in this passage, Stephen J spoke of the difficulties of relying on evidence that was directed to a class of document rather than to the particular document under consideration. That case concerned, in part, a claim that certain documents were privileged from disclosure in criminal proceedings on the basis that their disclosure would be prejudicial to the public interest. The evidence in support of the claim for privilege was in the form of affidavit evidence sworn by members of the then ministry and senior public servants. It was evidence directed to the class to which the particular documents could be characterised rather than to their contents. It was not suggested that disclosure of their contents would itself result in detriment to the public interest. The:

[616]

"... detriment perceived is, rather, that generalized form of apprehended harm which, it is said, will flow from a realization by Cabinet Ministers and by public servants that what they conceived to be confidential communications can, in the event of appropriate curial proceedings being instituted, become public knowledge.

[617]

Those who urge Crown privilege for classes of documents, regardless of particular contents, carry a heavy burden. As Lord Reid said in Rogers v Home Secretary[[215]] the speeches in Conway v Rimmer[[216]] have made it clear 'that there is a heavy burden of proof' on those who make class claims. ...".[217]

[618]

"disclosure under this Act would, on balance, be in the public interest"

[619]

234. Section 40(2) provides that the section "... does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest." The public interest is relevant in a number of provisions of the FOI Act. They take two forms. A provision such as s 36(1)(b) sets out one of the two criteria that a document must satisfy in order to be exempt as what is colloquially described as an internal working document. It provides that the disclosure of the document under the FOI Act would be contrary to the public interest. Section 40(2) provides an example of the second form. It requires me to consider whether disclosure under the FOI Act "would, on balance, be in the public interest." Whichever form is adopted, identification of what is the public interest is common to both. As the leading cases have considered the matter in the context of s 36(1)(b), I will refer to them.

[620]

235. What is meant by "contrary to the public interest" was considered by the High Court in McKinnon v Secretary, Department of the Treasury (McKinnon).[218] A conclusive certificate had been issued in relation to a claim that disclosure of certain documents would be contrary to the public interest within the meaning of s 36(1)(b). Although focused in the main on the conclusive certificate and the Tribunal's task, some mention was made of the general notions of public interest in their Honour's judgments. There were three different approaches in the three judgments in McKinnon.

[621]

236. Gleeson CJ and Kirby J examined the object of the FOI Act, the structure of s 36 and its place in the legislation. They continued:

[622]

" A conclusion that disclosure of an internal working document would be contrary to the public interest may or may not turn upon contestable facts: either primary facts, or inferences to be drawn from those facts. It may or may not turn upon contestable matters of opinion. Inevitably, it will involve a judgment as to where public interest lies. Such judgment, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object described above, which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests (s 3(1)(b))."[219]

[623]

237. Their Honours' reference to the fact that "judgment" is required in determining where the public interest lies and to that judgment's being made in a particular context found expression in a later passage in their judgment:

[624]

"... This is a concept that assumes prominence in a different context, in which courts are required to deal with claims of public interest immunity advanced in opposition to the production of documents, or example under subpoena, in civil or criminal litigation. There, it is the public interest in the administration of justice, and considerations of fairness to litigants, that may need to be weighed against aspects of the public interest put at risk by disclosure of the documents .... The image of the scales of justice is pervasive in legal thinking, and it is natural to talk of taking account of competing considerations in those terms. Under the FOI Act, however, the matter of disclosure or non-disclosure is not approached on the basis that there are empty scales in equilibrium, waiting for arguments to be put on one side or the other. There is a 'general right of access to information ... limited only by exceptions and exemptions necessary for the protection of essential public interests [and other matters not presently material]' (s 3(1)(b)). That is the context in which a minister makes a decision under s 36(3), and in which such a decision is reviewed under s 58(5). References to 'balancing' create a danger of losing sight of that context. ..."[220]

[625]

238. Gleeson CJ and Kirby J were in the minority on the final result but their views are not incompatible with those of Hayne J, who was a member of the majority. Hayne J made the following observations on the meaning of "public interest":

[626]

" It may readily be accepted that most questions about what is in 'the public interest' will require a consideration of a number of competing arguments about, or features or 'facets' of, the public interest. As was pointed out in O'Sullivan v Farrer ...[[221]]:

[627]

'[T]he expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects of the legislature could have had in view" ...[[222]].

[628]

That is why a question about 'the public interest' will seldom be properly seen as having only one dimension."[223]

[629]

239. In contrast to these expressions of the public interest, Callinan and Heydon JJ made the following observations regarding the public interest:

[630]

" Nor are we by any means certain that it is apt to describe the public interest as multifaceted. Neither the fact that different people will see it through different prisms, nor the fact that an all-encompassing definition of it for all occasions is not possible, means that the public interest is multifaceted. ... Judges have usually not found it necessary to direct juries at length as to the meaning of the expression, except to warn them that it is not enough that the matter might be of some personal or prurient interest, or merely something about which they may be curious."[224]

[631]

240. Callinan and Heydon JJ went on to consider the various grounds of public interest that had been claimed by the respondent in that case and said:

[632]

" ... The reference to 'ongoing sensitivity' in the first place is not entirely clear. We would be inclined ourselves to think that the fact that the documents have continuing sensitivity, are controversial and affect a minister's portfolio would not alone provide a reasonable ground for continuing confidentiality. The use of the word 'ongoing' strongly suggests currency, and the use of the word 'controversial' might well at least imply public interest.

[633]

The second ground, which speaks of jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed, and it seems to us that this is a matter upon which a minister's opinion and experience are likely to be well informed and valuable as those of anyone else, including senior officials.

[634]

The third ground raises an issue of tentativeness; that is to say, that the documents were concerned with matters that were not settled and recommendations that were not adopted. This too, on its face, is a cogent ground. It is difficult to see how it would not be reasonable for a minister to take the view that the release of the material of that kind would not make a valuable contribution to public debate.

[635]

The fourth ground has so much in common with the third that nothing further need be said about it.[[225]]

[636]

The fifth ground is far less persuasive. It claims that the difficulty of putting financial data into context provides reason for the non-disclosure of otherwise relevant documents. It is, we think, unrealistic for any minister to believe that he or she can control, or dictate the context in which matters of public interest are debated. All that a minister can do is seek to explain the data and to provide as accurate a context for it as possible.

[637]

The sixth ground takes the point that such documents as are prepared for possible responses to questions in Parliament should remain confidential because their exposure would threaten the Westminster system of government, that is to say, responsible government to which we have earlier referred. This cannot be said to be an unreasonable view. The minister is the one who is responsible for an answer given in Parliament, within the practical modern limits to which we have referred. It is his or her answer itself which is a, or the, matter of public interest, and not the various documents which may have canvassed that answer, or other possible answers. It will be in respect of the answer that the minister actually gives that any political price will have to be paid, just as there may well be a political price to be paid for any claim of conclusiveness, whether it is well-based or not.

[638]

The seventh ground is at least arguably not reasonable, in effect, that the public may not be trusted to understand the technicalities of, and the jargon used in otherwise revealable documents. It is not as if the public is unaided by experts and others who can, including, for example, an informed journalist ....

[639]

The grounds taken did not clearly articulate something that the oral evidence suggested, namely that the respondent was concerned that what might be disclosed could well be misrepresented, abbreviated or distorted, or at least not presented in a balanced way. Indeed, cross-examination of the appellant's witnesses certainly did go some way towards demonstrating lack of balance, indeed, lack of balance even in the reporting of the particular issue with which the Tribunal was concerned. That would not however be a ground that we would regard as reasonable, for the same reasons we would not reject a ground based upon an asserted lack of technical expertise, or inability to understand jargon on the part of each and every member of the public."[226]

[640]

241. The discussion by Callinan and Heydon JJ of the seventh ground needs to be read with their observations regarding their third ground. It would seem to be consistent with other observations they made earlier in their judgment regarding the opinion evidence given by Mr Dennis Rose, who has formerly been Secretary of the Attorney-General's Department and President of the Australian Law Reform Commission, and Professor Peter Dixon, who is an applied economist. Mr Rose had expressed an opinion that disclosure of documents that were provisional in nature or that were superseded would make a very useful contribution to the public debate. Callinan and Heydon JJ said:

[641]

"... Contrary to Mr Rose's opinion that the exposure of these would make 'a very useful contribution to the public debate', in our opinion documents of that kind are more likely to mislead or confuse, or to make no contribution to any useful, or currently relevant debate.

[642]

Some of Professor Dixon's evidence made the point, incontestable we think, that the topics were of public interest, as to the way in which, for example, 'bracket creep' adversely affected many taxpayers. But a distinction that he too did not make in his evidence was the distinction between provisional or superseded documents, and current ones. The former could do little to advance the analyses which Professor Dixon and other economists would wish to do, of 'the Treasury's apparent concern with the number of people who move from one tax bracket to another in any given year'."[227]

[643]

242. Hayne J also appears to support the proposition that there could, on the evidence in that case, be a public interest in refusing disclosure of documents in circumstances where they would be likely to mislead. He said:

[644]

"... In the case of those particular documents, the relevant grounds for the claim were grounds asserting that release of the material shown in the documents had 'the potential to lead to confusion and to mislead the public'. The appellant did not assert that this could not constitute a reasonable ground for the claim that had been made."[228]

[645]

243. I will refer finally to an earlier decision of Davies J as President of the Tribunal in Re Howard and Treasurer of Commonwealth of Australia.[229] His reasons for finding that there existed reasonable grounds for a claim that disclosure of certain documents would be contrary to the public interest were summarised in the head note. Mr Howard had requested documents provided to the then Government by an Australian Council of Trade Unions' (ACTU) Task Force during the formulation of the 1984/85 Budget. When in opposition, the Government had forged an Accord with the ACTU regarding economic policy. In particular, the Government had agreed to consult with the ACTU regarding income and prices policies including taxation. Access was refused to a minute to the Treasurer and a telex to the ACTU. Both documents advised the Treasurer on the implications and estimated cost of certain taxation options. Davies J referred to previous authorities from which he gleaned that the whole of the circumstances needed to be examined. Those circumstances included any public benefit perceived in their disclosure.[230] As general propositions, he drew five propositions to which I referred in Re McKinnon and Secretary, Department of Prime Minister and Cabinet.[231]

[646]

244. Mr Howard had framed his submissions around three points. First, the Accord was a political document. Second, the ACTU had not produced any evidence as to whether maintaining the confidentiality of their discussions was important to them. Third, there is a clear public interest in not only the reality, but the appearance, of equal treatment of claimant groups and their representatives in the Australian community. The Government of the day had appeared, Mr Howard submitted, to have treated the ACTU in a special manner. Davies J dealt with these submissions and analysed the evidence in a way consistent with the approach that appears to underpin the judgments of the High Court in McKinnon:

[647]

" _In the present case, I think there were and are reasonable grounds for concluding that disclosure of the documents would be contrary to the public interest. In the preparation of the Budget, the Treasurer and officers of his Department would have given consideration to a wide range of options. Some options would have been noted and not further considered, others may have been given scant attention. Some options may have been given serious consideration but not adopted for one reason or another. In the course of the development of the Budget, new options may have come to light. In the end, the Budget would have been formulated. The authorities to which I have referred recognize a public interest in protecting from disclosure such a process of deliberation. Protection of the deliberative process encourages 'creative debate and candid consideration of alternatives', to use the words of Wilkey J (_Jordan v Department of Justice, supra, [591F (2d) 753 (1978)] at 772). It prevents premature disclosure of possible options and confusion arising between options considered and options adopted. And lastly it protects the integrity of the decision-making process by enabling the government to be judged by what it has decided to do rather than by material it has taken into account. These elements of the public interest are as significant in this country as they are in the United States or in the United Kingdom."[232]

[648]

245. As I have said, s 40(2) requires a consideration of what would, on balance, be in the public interest as does s 33A(5). That section qualifies the exemption specified in s 33A(1) in relation to matters of Commonwealth/State relations and information communicated by a State to the Commonwealth. The relationship between ss 33A(1) and (5) was considered by the Federal Court (Woodward, Wilcox and Burchett JJ) in Arnold (on behalf of Australians for Animals) v. Queensland and Anor[233] (Arnold). Wilcox J said:

[649]

"Finally, it is important to bear in mind the significance of sub-s(5) in the scheme of s33A. Sub-section (5) assumes that, as a general principle, there is a public interest in the non-disclosure of a document falling within sub-s(1). But it contemplates that, nonetheless, it may, on balance, be in the public interest for matter in that document to be disclosed. The sub-section does not specify criteria for consideration in the making of that judgment. All relevant circumstances must be taken into account. One of those circumstances will

[650]

always be the principle enshrined in s3 of the Act.

[651]

It will be noted that Parliament was not content merely to espouse a policy of extending access to information, as stated in s3(1). The legislature went further by requiring the implementation of that policy, as far as possible, in the exercise of the discretions conferred by the Act. Although it would not be correct to regard s33A(5) as conferring a discretion, the command of s3(2) is an indication that Parliament regarded the principle constituting a weighty

[652]

factor to be taken into account in making a judgment as to the public interest in any decision whether to disclose particular documents. In a particular case, especially where the degree of public disadvantage caused by disclosure is small, or the prospect of any public disadvantage is comparatively remote, that principle may itself be enough to tip the balance in favour of disclosure, notwithstanding that the information falls within s33A(1)."[234]

[653]

246. Burchett J (with whom Woodward J agreed) said:

[654]

"Reference has also been made to sub-s(5) of s33A which provides: 'This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.' That sub-section does not confer a discretion upon anyone. It requires a determination of a matter of fact, albeit a matter upon which different minds might well, in a particular case, reach different conclusions. Where either branch of sub-s(1) is found to apply, what sub-s(5) does is raise the question whether nevertheless it can be affirmed of matter in the document that its disclosure under the Act would, on balance, be in the public interest. In reaching that determination, it is clear that the tribunal would have regard

[655]

to the object of the Act expressed in s3, but it would also have regard to the provision by Parliament of the exemption. It might be expected in practice to look for special features of the instant case which might indicate where, in that particular case, the balance lay. Parliament having provided an exemption, and an escape route from that exemption, I do not think it is very profitable to put a gloss upon the terms which Parliament has itself laid down as a test to be applied - it is for the decision maker to decide whether he can affirm on balance that disclosure would in the public interest."[235]

[656]

247. At the time Arnold was decided, the second of the three objects of the FOI Act (which is the only object relevant to the right of access to information) was expressed in this way:

[657]

"The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

[658]

(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; ...

[659]

248. It remained in this form until recently amended by the FOI Amendment Act. Section 3 now makes no reference to the limitations imposed by the "exceptions and exemptions necessary for the protection of essential public interests and private and business affairs of persons ...". Despite that, they remain in the form of the exceptions in Parts II and III of the FOI Act and in the exemptions in Part IV. The right to access to a document of an agency or an official document of a Minister is not read down in light of the exceptions and exemptions. Rather, it is defined by them. Therefore, an exemption is not read down by reason of a person's having a right of access. It remains part of the context defining that right and part of the context in which a decision whether disclosure under the Act would, on balance, be in the public interest.

[660]

Applying the principles to s 40(2), I must make a finding of fact whether disclosure under the FOI Act would, on balance, be in the public interest. It is not a matter of discretion. I need to have regard to the basis of the exemption provided in s 40(1). That is to say, I need to have regard to the fact that, in broad terms, Parliament has considered that documents are not accessible under the FOI Act if their disclosure in that context would, or could reasonably be expected to affect the operations of an agency in a manner specified in ss 40(1)(a) to (e). Also relevant is the use that will, or may, be made of the documents if they were disclosed. Their proposed use may be for a purpose that favours disclosure but regard must be had to the degree of disadvantage that will, or may, flow to the public.

[661]

250. Mr Rebikoff submitted that the evidence establishes that the documents for which exemption is claimed under s 40(1)(d) contain information obtained from witnesses and Departmental informants on the basis that it would be used solely for the purposes of the Department's investigation. It was also obtained on the understanding that it would not be used for any purposes other than those connected with the investigation or any subsequent prosecution. basis on which this information is claimed to be exempt. He referred to [20] to [21] and [55] to [56] of Ms Pettit's affidavit in support of his submission. I have made findings of fact on the basis of those paragraphs at [43] above.

[662]

251. Ms Pettit referred in her affidavit evidence to matters to which the Department must have regard in dealing with allegations. The first is the Privacy Act 1988 (Privacy Act), which limits the collection and disclosure of personal information about individuals. The second is s 336E of the Migration Act, which provides that a person commits an offence if his or her conduct causes disclosure of identifying information in circumstances in which that disclosure is not a permitted disclosure. The third is the Department's National Fraud Investigation Guidelines, which provide that, where possible, confidentiality must be maintained in relation to the receipt of an allegation and that, when receiving allegations from the public, officers should explain that allegations will be managed in accordance with "privacy provisions".[237]

[663]

252. While I accept that these are all very relevant considerations for the Department in managing the information it gathers during an investigation and generally, their relevance in reviewing a decision under the FOI Act is a little different. I will begin with the Privacy Act. Information Privacy Principle 11 (IPP11) set out in s 14 is the relevant IPP. It applies to a record-keeper in possession or control of a record containing personal information. That record-keeper may not disclose that personal information to a person, body or agency unless certain circumstances exist. Among those circumstances is that "the disclosure is reasonably necessary for the enforcement of the criminal law ...".[238] That circumstance, among others set out in IPP11.1, will be relevant to the Department when it is engaged in activities that may be described as "law enforcement". It may authorise disclosure by the Department of personal information that it would otherwise be obliged to protect. Consideration of this sort are not directly relevant to the Tribunal in reviewing a decision under the FOI Act for the effect of IPP11.1(d) is that personal information may be disclosed where "the disclosure is required or authorised by or under law". Where a request for access to a document is made under the FOI Act and it is neither irrelevant to the request nor exempt and workload considerations do not arise, access, and so disclosure, is required or authorised under the law.

[664]

253. Where the Privacy Act may be relevant is in providing part of the background in which the Department conducts its operations including its investigations. So too is s 336E, which relates to "identifying information". The first meaning of that expression is that of "any personal identifier provided under section 40, 46, 166, 170, 175, 188, 192 or 261AA".[239] As its remaining three meanings derive from the first, I have looked at the circumstances in which personal identifiers are required. In general terms, they are required in relation to those who seek visas, whose visas are liable to cancellation, who are detained or who enter or leave the country. Personal identifiers that may be prescribed in respect of those sections vary but may include fingerprints or handprints, photograph of face and shoulders, an audio or video recording of the person, an iris scan, the person's signature, personal identifiers contained in the person's passport or travel document and any other type prescribed by regulation.[240] Information of this sort is permitted for limited purposes set out in ss 336E to 336FD of the Migration Act. A permitted disclosure is made if disclosure is reasonably necessary for the enforcement of the criminal law of the Commonwealth or of a State or Territory.[241] The reference to the "enforcement of the criminal law" would seem to be directed to something narrower than "law enforcement". That it is narrower would seem to gain some support from which provides that disclosure is not a permitted disclosure if it is for the purpose of ""

[665]

254. Again, these provisions provide the background to the Department's operations but are not directly relevant to the Tribunal in reviewing a decision under the FOI Act. Section 336E(2)(eb) provides that a permitted disclosure is disclosure that "is required by or under a law of the Commonwealth or of a State or Territory". Where a request for access to a document is made under the FOI Act and a particular document is neither irrelevant to the request nor exempt and workload considerations do not arise, access, and so disclosure, is required or authorised under a law of the Commonwealth being the FOI Act.

[666]

255. Ms Pettit referred also to the Department's National Fraud Investigation Guidelines (DNFI Guidelines) and their requirement to maintain the confidentiality of the source of allegations. I have not been given a copy of those guidelines but presume that they have been made in order to satisfy the Secretary's obligation to implement a fraud control plan for the Department. That obligation arises under s 45 of the Financial Management and Accountability Act 1997 and assistance in the preparation of the guidelines is to be found in the Commonwealth Fraud Control Guidelines issued by the Minister for Home Affairs under r 16A of the Financial Management and Accountability Regulations 1997.[242] Clause 7.3 of that document requires each agency to include protocols setting out how, in its particular circumstances, it will handle allegations/suspicions of fraud, including assessment of allegations, establishment of investigations and options for resolution of incidents (such as referral to police and when/how to initiate recovery action). Again, these guidelines provide background to the Department's operations but I have not been given a copy of them.

[667]

256. Documents 798, 853 and 977 are PPQs relating to the probe into the SICB over allegations that it had sold qualifications to overseas students so that those students could obtain visas to remain in Australia. It is apparent from the text of the documents that has been released under the FOI Act that the information claimed to be exempt under s 40(1)(d) refers to the names of migration agents and agencies under investigation, addresses of a third party or parties and information identifying potential witnesses.

[668]

257. On the evidence that I have been given, I understand that Operation Dachshund is at an end. The essence of the Department's argument in support of exemption is that the Department does not have coercive powers to gather evidence and relies on the cooperation of witnesses and members of the public to give it information on a voluntary basis. If information were to be released regarding the identity of a witness or a potential witness or of a person making an allegation, others would be less willing to come forward in the future.

[669]

258. I accept that evidence. Both the offer of confidentiality to intending informants and the maintenance of confidentiality of those with whom it obtains information through more formal ways is clearly an important part of the Department's strategy in ensuring compliance with the Migration Act. That is clear from what I have been told of the DNFI Guidelines and their requirement regarding the way in which the confidentiality of allegations is to be maintained. It is also clear from Ms Pettit's evidence, which I have accepted, that the statements made by witnesses were to be confidential and disclosed only for the purposes of the investigation or any consequent prosecution.

[670]

259. It might be said that Operation Dachshund is at an end and that maintaining the confidentiality no longer matters. Section 40(1)(d) is concerned not only with the proper and efficient conduct of a particular operation of an agency being, in this case, the Department. It is concerned with the proper and efficient conduct of the "operations of an agency" and so with the way in which it discharges or performs any and all of its functions.

[671]

260. If Mr Lobo were to be given access to the information in Documents 798, 853 and 977 about a witness and a person who was to be interviewed by FCIS, that information would have to be given to any other person who made a request for access to that document under the FOI Act. Potentially, everyone could have access to it and the exemption under s 40(1)(d), as with all of the other exemptions apart from ss 41 and 43, must always be viewed in that way. If, potentially, everyone could have access to it, everyone will potentially know that the Department's assertions that it will treat information given to it in confidence in relation to its law enforcement activities counts for nought.

[672]

261. That is not to say that everyone would request the document and that everyone would potentially come to that realisation but, given the ease and speed of modern communication, it could reasonably be expected that it would become reasonably well known that the Department is unable to honour its undertaking of confidentiality. Even if that knowledge were not known throughout the community, the fact that it is likely to be known or to become known is reasonably likely to have a substantial adverse effect on the Department's ability to obtain information in the future. As it has no powers of coercion and is dependent upon information that is volunteered to it, I am satisfied that disclosure would have a substantial adverse effect on the proper and efficient operations of the Department.

[673]

262. That finding means that Documents 798, 853 and 977 meet the criteria specified in s 40(1)(d) of the FOI Act but does not automatically lead to the conclusion that the documents are exempt under s 40. They will only be exempt if

[674]

s 40(2) does not apply. That means that I must ask whether disclosure of the matter in Documents 798, 853 and 977 would, on balance, be in the public interest. If it would be, they are not exempt under s 40.

[675]

263. I have decided that disclosure would not, on balance, be in the public interest. There is a public interest in the proper an efficient operation of the Department, in its being able to detect fraud and non-compliance with the law it administers and to investigate behaviour suspected of being fraudulent or illegal and in its being able to prevent or minimise that type of behaviour. There is also a public interest in the community's knowing of the Department's activities but that does not necessarily equate with its being privy to every aspect of those activities in a particular investigation. In this instance, I am satisfied that the degree of adverse effect on the proper and efficient operations of the Department outweighs any benefit to the public or to members of it that may follow upon disclosure. Therefore, this is not an instance in which disclosure of Documents 798, 853 and 977 would, on balance, be in the public interest. Section 40(2) does not arise and the documents are exempt under s 40(1)(d).

[676]

Category 5 documents: 152, 153, 238, 728, 737, 745, 762 and 991

[677]

Category 7 documents: 139, 509, 596, 597 and 1019

[678]

Category 9 documents: 475, 564, 570, 571, 577,620 and 723

[679]

264. I will deal with these as a group for exemption is claimed under

[680]

s 40(1)(d) in relation to one or more of three types of information. The first type relates to the name, contact information and other information that identify a person who has given information to the Department. I am satisfied that this is the nature of the information for which exemption is claimed. For the reasons I have given in relation to Document 798, I am satisfied that the passage in each of Documents 152, 153, 238, 728, 737, 745, 762 and 991 (Category 5), 346 (Category 6), 139, 509, 596, 597, 1019 (Category 7), 564, 570, 571, 577 and 620 (Category 9) 962 and 963 (Category 12), 1018 (Category 15), 956 (Category 16) and 140 and 321 (Category 23) specifying this type of information for which exemption is claimed meets the criteria specified in s 40(1)(d). Also for the reasons I gave in relation to Document 798, this is not an instance in which disclosure of Document 798 would, on balance, be in the public interest. Section 40(2) does not arise and the document is exempt under s 40(1)(d).

[681]

The second type of information for which exemption is claimed is information which identifies, or may identify, the name of a migration agent or migration agents or of an agency or of agencies under investigation. The investigation has come to an end. It is difficult to see how either it, or an unrelated investigation or enforcement action against those under investigation or those who may be investigated in the future, will be prejudiced by disclosure of their identities. Therefore, it is difficult to see how the Department's operations will be prejudiced by granting access to information of this type in Documents 152, 153, 238, 728, 737, 745, 762 and 991 (Category 5), 346 (Category 6), 139 (Category 7), 577, 620 and 623 (Category 9) and 140 and 321 (Category 23). I am not satisfied that they are exempt in respect of that information under s 40(1)(d).

[682]

266. The third type of information that some of these documents contain is that identifying visa applicants who were under investigation. Now that Operation Dachshund is at an end and administrative action has been undertaken in relation to some and charges laid in respect of four others, I am not satisfied that disclosure under the FOI Act would have a substantial adverse effect on that investigation or on any other future investigation. I am not satisfied that it would have a substantial adverse effect on the proper and efficient conduct of the operations of the Department. Therefore, I have decided that Documents 152, 153, 238, 728, 737, 745 and 762 (Category 5) are not exempt in so far as exemption is claimed for that type of information.

[683]

267. Document 399 is a facsimile communication between officers of the Department attaching a Ministerial Intervention Request as I have described above at [188]. Exemption has been claimed for three types of information. The first is said to identify a person described by the Department as an informant but not accepted by me as a confidential source of information within the meaning of s 37(1)(b). The second is described as likely to identify a person who is a Departmental witness. The third is described as information for the purposes of criminal proceedings.

[684]

268. For the reasons I have given in [257]-[263] in relation to Document 798 in Category 1 of Category A and in relation to the first type of information in the documents I have described in Categories 5, 6, 7, 9 and 23 of Category A, I am satisfied that Document 399 is exempt under s 40(1)(d).

[685]

269. Document 1001 is not referred to in the Schedules to Ms Creaner's second affidavit and is not referred to in the Schedules of Documents that are no longer in contention for one reason or another. The reasons I have given in the previous paragraph apply equally to this paragraph. It is exempt under s 40(1)(d).

[686]

270. To the extent that Documents 523 and 1016 contain the name and contact details of a person providing information to the Department about SICB, I am satisfied that they are exempt under s 40(1)(d) for the reasons I have given at [257]-[263] in relation to Document 798 in Category 1 of Category A and in relation to the first type of information in the documents I have described in Categories 5, 6, 7, 9 and 23 of Category A.

[687]

271. The remaining text of those documents contains information that was provided in confidence to the Department. I am satisfied that this information could be used to identify the person who gave it. That could reasonably be expected to dissuade persons from volunteering information in the future just as much as disclosure of the person's name. For the same reasons, therefore, I am satisfied that both documents are exempt in their entirety under s 40(1)(d) of the FOI Act.

[688]

Category 9: documents 53, 469, 472, 482, 483, 485, 527, 534, 547, 549, 550, 570, 650, 692, 693, 1017 and 1020

[689]

272. Document 53 is a file note made by a Departmental officer of a telephone conversation or conversations with a person regarding the SICB. I do not agree with the description in the Schedule that it contains allegations provided by a Departmental informant. It would be more accurately described as a conversation about the ins and outs of providing information regarding SICB. It discloses the identity of the person with whom the conversation was held. To the extent that it does that, and those passages are marked in colour on the copy I have been given, they are exempt under s 40(1)(d). To know that the fact that such a preliminary conversation might be disclosed could reasonably be expected to dissuade others from contemplating engaging in a conversation at all. That would have the adverse effect prescribed in s 40(1)(d) and it is not a case in which disclosure under the FOI Act would, on balance, be in the public interest. Therefore, I am satisfied that Document 53 is exempt under s 40(1)(d).

[690]

273. As for the rest of the text of folios 158 and 157 of Document 53, I am also satisfied that it is exempt. The document contains information of the fact that the conversation occurred and it is that fact that is itself confidential. It is clear from the content of that information that the person wanted any involvement with the Department kept on that basis. I am satisfied that this brings the information in Document 53 into the same category as Document 798 and related documents. For the same reasons, it is exempt under s 40(1)(d) in relation to those parts for which it is claimed.

[691]

(ii) Documents 469, 472, 482, 483, 485, 527, 534, 549, 570, 650, 692, 693, 1017 and 1020

[692]

Each of these documents contains information that includes the name of a person who has given information to the Department. I am satisfied that the entire content of these documents is exempt under s 40(1)(d) for the reasons I have given in relation to Document 798 at [257]-[263].

[693]

275. Document 550 is described in the Schedule of documents as a record of the names and contact details for teachers at SICB. Standing alone, I do not accept that disclosure of the list under the FOI Act could reasonably be expected to have an adverse effect on the proper and efficient conduct of Operation Dachshund. It is at an end. As for the conduct of future operations, I am of the same view. There had been media reports that SICB was under investigation. It is reasonable to expect that a list of the staff at SICB would be compiled during the course of that investigation.

[694]

276. There is no evidence that the names of the staff were publicly available but that does not mean that there disclosure would have any adverse effect on the Department's operations in the future. The information might well be available to the Department through other means. I refer in particular to the ESOS Act. Sections 33 and 34 require the Minister responsible for that legislation to make a national code providing nationally consistent standards for the registration and conduct of registered providers and the conduct of those who deliver educational services on their behalf. The National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (National Code) commenced operation on 1 July 2007.[243] Part D sets out the standards that registered providers must meet in order to comply, and to continue to comply, with their registration under the ESOS Act. Standard 14 requires that:

[695]

"The staff of registered providers are suitably qualified or experienced in relation to the functions they perform for students. The educational resources of registered providers support the delivery of courses to students. The premises of registered providers, including the floor space available for each student, support students to achieve their course outcomes."

[696]

277. In order to ensure compliance with Standard 14, it might be expected that a list of the staff of a registered provider and their qualifications would be made available to the relevant Department. Section 175 of the ESOS Act provides that:

[697]

(c) promoting compliance with the conditions of a particular student visa or visas, or of student visas generally; or

[698]

(d) facilitating the monitoring and control of immigration;

[699]

the Secretary may give information obtained or received for the purposes of this Act to:

[700]

(e) an agency of the Commonwealth, or of a State, that is responsible for or otherwise concerned with immigration or the regulation of providers; or

[701]

The Department is such an agency of the Commonwealth to whom the Secretary might give information regarding the staffing of a registered provider under the ESOS Act.

[702]

278. Having regard to all of these matters, I am not satisfied that Document 550 meets the criteria set out in s 40(1)(d) of the FOI Act. Therefore, the question under s 40(2) does not arise and Document 550 is not exempt under s 40(1)(d).

[703]

Category 18: Documents 25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76 and 60, 64, 65, 70, 78, 81, 82, 83, 84, 85 and , 261 and 263 and 1023, 1074, 1083, 1084 and 1089

[704]

(i) Documents 25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76

[705]

279. The information for which exemption is claimed in these documents is described in the Schedule as either the "Attendance roll for SICB class", a "Summary of test results for SICB exam", "SICB class roster" or "Attendance roll for SICB exam". The reasons I have given for my not being satisfied that Document 550 is exempt under s 40(1)(d) apply equally to these. I am not satisfied that they are exempt under that section.

[706]

(ii) Documents 60, 64, 65, 70, 78, 81, 82, 83, 84 and 85

[707]

280. Exemption is claimed for each of these documents on the basis that they contain information which might identify a witness. For the reasons I have given for being satisfied that Document 798 is exempt under s 40(1)(d), I am also satisfied that each of these documents is exempt. I would add that, apart from the use of any person's name, it is reasonable to expect that the identity of the person providing information could be ascertained from the information recorded by the Department.

[708]

281. Document 261 is a computer printout from a website. It contains information about a person whom it identifies. It is claimed to be exempt on the basis that it contains information that may identify a witness. The fact that it is a document that comes within the terms of Mr Lobo's request may indeed lead to that conclusion or at least to the conclusion that the person is a person of interest to the Department in the context of Operation Dachshund.

[709]

282. On the evidence, I am not satisfied that disclosure of Document 261 would, or could reasonably be expected to have a substantial adverse effect on the proper operations of the Department. Its disclosure would show that the Department has downloaded information from the internet for some reason in the course of Operation Dachshund. Given the ease of access to the internet by most members of the Australian community and the seemingly increasing resort to it in order to find out information, what would be so unusual about the Department's having a look at what is on the internet? Surely, it would be expected to be the normal behaviour by a considerable cross-section of the community. In view of that, I am not satisfied that Document 261 meets the criteria set out in s 40(1)(d) and find that it is not exempt.

[710]

283. Document 263 is an email between officers of the Department discussing a forthcoming interview with a person who has, or will, give a statement. Exemption is claimed on the basis that disclosure may identify the person who is described as a witness. For the reasons I have given above at [257]-[263] in relation to Document 798, I am satisfied that the document is exempt under s 40(1)(d).

[711]

284. Document 1023 is a chain of emails between an officer of the Department and a third party. They are entitled "SICB". Documents 1074, 1083, 1084 and 1089 are internal emails referring to information that would identify third parties who have, or might help, the Department in its investigations. Exemption is claimed for each of these documents on the basis that they contain information which might identify a witness. For the reasons I have given at [257]-[263] for being satisfied that Document 798 is exempt under s 40(1)(d), I am also satisfied that each of these documents is exempt.

[712]

"A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person)."

[713]

The expression "personal information" is defined in s 4(1) to mean:

[714]

"... information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion."

[715]

"Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person."

[716]

The qualification to s 41(2) found in s 41(3) is concerned with a request for a document containing information provided by a qualified person acting in his or her capacity as a qualified person. A "qualified person" is a "... person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well-being ...".[244] The qualification is not relevant in this case.

[717]

The expression "personal information" is defined to mean:

[718]

[719]

288. I considered this definition in an earlier case of Re Callejo and Department of Immigration and Citizenship[246] (Callejo). In that case, I looked also to the authorities interpreting the expression "personal affairs" as that had been the expression used in s 41(1) in earlier times. I concluded that, in its current form, s 41(1) should not be read with any added gloss and I adopt my conclusion and my reasons for it are part of these reasons. Therefore, the personal information protected from access by s 41(1) is simply information or an opinion about an individual whose identity is apparent or can reasonably be ascertained. It is not information or an opinion about a particular part of a person's life. Consequently, the information protected from disclosure by the exemption is not limited to information about their private or domestic affairs. The protection extends, for example, to information or an opinion about their work or employment. Provided the information or opinion is "about an individual" and the identity of that individual is "apparent or can reasonably be ascertained", it is protected from disclosure under the FOI Act. It matters not whether it is true or not.

[720]

289. When is information "about an individual"? Among the ordinary meanings of the word "about" are those relating to its use in reference to time, distance, quantity and position. Another meaning relates to substance or quality and that is the meaning in which it is used in s 41(1). The meaning is that of "... concerning or relating to someone or something; on the subject of them or it. ...".[247]

[721]

290. The identity of the person must either be "apparent", and so "easy to see or understand; obvious",[248] or can be "reasonably ascertained" from the information or opinion. As I said in Callejo:

[722]

" In Kristoffersen v Department of Employment Workplace Relations and Small Business_,[249] Kiefel J queried whether the definition required not only that the information identify the person but whether it had to go further and say something about them.[250] Private telephone numbers and addresses of individuals working for a Commonwealth agency have been held to be personal information.[251] I have not been able to find any cases that refer to the extent to which regard can be had to what might be matters of general public knowledge in deciding whether an individual's identity is apparent, or can reasonably be ascertained, from the information or opinion. That is not an issue that arises in this case._"[252]

[723]

291. I remain of the same view but these are matters that do require some further consideration in this case. That has occurred in the Victorian Civil and Administrative Tribunal (VCAT) in a case called WL v La Trobe University (General).[253] Deputy President Coghlan considered a complaint that had been referred to VCAT by the Privacy Commissioner under s 29(5) of the Information Privacy Act 2000 (Vic) (IPA). The complaint had been made by WL against the La Trobe University (La Trobe) to the effect that neither WL nor WL's partner had given their informed consent to their participating in, and being interviewed in respect of, a longitudinal study known as the Australian Longitudinal Study of Health and Relationships (the study). On receiving the complaint after WL's partner had been interviewed as part of the pilot for the study, La Trobe ordered that the information gathered during the interview be deleted and it was deleted.

[724]

292. Section 25 of the IPA provides:

[725]

"An individual in respect of whom personal information is, or has at any time been, held by an organisation may complain to the Privacy Commissioner about an act or practice that may be an interference with the privacy of the individual."

[726]

The expression "personal information" is defined in s 3 of IPA to mean:

[727]

"... information or an opinion (including information or an opinion forming part of a database), that is recorded in any form and whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion but does not include information of a kind to which the Health Records Act 2001 applies".

[728]

293. Deputy President Coghlan recorded that the "... gravamen of the applicant's case is that a cross-match of answers to questions which isolate so many personal characteristics of the applicant, such as to distinguish the applicant from other individuals, with a cross-matching of telephone numbers, would identify the applicant with certainty."[254] La Trobe had submitted that the identity must be able to be reasonably ascertained from the information collected by taking moderate steps. They developed their submissions but I will set out only the primary submission made by each and summarised by Deputy President Coghlan:

[729]

"35 The applicant submits that the ability of modern information systems to ascertain information held in databases puts the word 'reasonably' in a practical context. It is submitted that words should not be read in a vacuum, and the Second Reading Speech paid particular attention to the capacity of technology 'to compile, manipulate and match data'. Further, the use of modern information systems by HVRF allows that organisation to ascertain the identity of the applicant with certainty and this process of ascertaining the applicant's identity should be considered 'reasonable' in the circumstances of the case.

[730]

_36 The respondent submitted that a plain reading of the definition of 'personal information' does not support such a view. The definition is not unqualified, it is limited by the requirement that an individual's identity can reasonably be ascertained '_from the information'. The submissions continued -

[731]

No effort should be required in order to understand the person's identity; it should arise from the information. The definition is reflexive: whether information is 'personal information' depends on its capacity, alone, to yield an individual's identity in the context of the particular circumstances. In the context of the present case, the applicant's identity must be able to reasonably be ascertained from the information collected and recorded during the interview. There is no ambiguity about the words in the definition."[255]

[732]

294. She referred to Irish Data Protection Act 1988 (Ireland) and to the Commonwealth's Privacy Act 1988 and found no assistance before turning to the case of Bailey v Hinch.[256] She drew from that case support for her conclusion that regard could be had to sources other than the information in the document under consideration to decide whether an individual's "identity is apparent, or can reasonably be ascertained, from the information or opinion" expressed in the document.

[733]

295. I have looked at Bailey v Hinch to understand the basis of her argument. Justice Gobbo considered whether Mr Derryn Hinch, a journalist and the broadcaster of his programme, had been properly convicted of an offence under s 4(1) of the Judicial Proceedings Reports Act 1958 (Vic) (JPR Act) which provided that:

[734]

_"A person shall not in relation to any proceedings in any court or before justices in respect of an offence of a sexual or unnatural kind publish or cause to be published in any newspaper or document or in any broadcast by means of wireless telegraphy or television - _

[735]

_(a) the name address or school or any other particulars likely to lead to the identification of - _

[736]

against or in respect of whom the offence is alleged to have been committed (whether or not such female or male is a witness in the proceedings); or

[737]

_(b) any picture purporting to be or to include a picture of any such female or male - _

[738]

unless the court or justices order that all or any such particulars or such picture may be so published and the particulars or picture are published in conformity with the order."

[739]

296. Judge Dyett of the Victorian County Court had first ordered that the publication of a report of the proceedings in a trial of a man accused of sex offences against his wife be prohibited. Later on the same day, he ordered that:

[740]

"... no person shall publish or cause to be published in any newspaper or broadcast by means of wireless, telegraphy or television a report of these proceedings containing the locality or any particulars likely to lead to the identification of this Court or the name, address or any particulars likely to lead to the identification of any person concerned in these proceedings either as being the person against whom or in respect of whom the proceedings are taken or as being a witness therein, nor shall any person publish or cause to be published in a newspaper or by television or otherwise any picture as being or including a picture of any person concerned in these proceedings."[257]

[741]

297. A Magistrate convicted Mr Hinch and the broadcaster of an offence under s 4 of the JPR Act on the basis that he had named the Judge. The Magistrate convicted them on the basis that the naming of the Judge would enable the name of the accused to be identified from the Law Lists and so the name of the victim in contravention of s 4(1).

[742]

298. On appeal, in considering whether publication of the name of the Judge was likely to lead to the identification of the victim, and the interpretation of those words, Gobbo J asked whether the publication of the Judge's name was "likely to lead" to the identification of the victim:

[743]

" This argument concerned the interpretation of the words 'likely to lead'. This was of crucial importance since the learned Magistrate had found as a fact that the publication of the Judge's name was a particular likely to lead to the identification of the victim. It was argued that the purpose of the section was to prevent the physical identification of the victim. The fact that in the words of the learned Magistrate, a 'better informed member of the community' can look up the Judge's name in the law list and find out the name of the accused and thus discover the name of the victim does not necessarily mean that the victim has been identified. Identifying a victim, it was said, must go beyond merely knowing the victim's name; the phrase 'likely to lead to the identification of the victim' refers to the likelihood of a particular person being identified, not merely by a name or description but as a person.

[744]

There is much force in the argument that a publication that leads or is likely to lead to the name of the victim does not necessarily mean that this is equivalent to identification of the victim. This would seem to be so, for example, where the name of the defendant is John Smith and nothing more is revealed or likely to be revealed. In such a case, where it is known that the accused was alleged to have raped his wife, all that would be known was that the victim's name was Mrs. John Smith. As a matter of construction, I am of the view that the mere surname of the victim cannot automatically be equated with identification. In the John Smith type of example, it is difficult to see how it could, though it could amount to identification if the case took place in a small town where there was only one or there were very few Smiths residing. With a less common name, it may be that the mere name is enough. Further, I do not accept that publication of particulars likely to lead to ascertainment of only the name of the victim cannot amount to identification.

[745]

In my view, the operation of the words in question is a matter of fact in each case. It is not open to me to decide this matter as though I can reconsider this issue and then replace the Magistrate's decision with my own if my view of the facts differs from his view.

[746]

... The learned Magistrate held that there were circumstances about the case that were unusual, namely, the controversial subject matter of the issue of whether a husband could in law be guilty of the offence of raping his wife; and secondly, in the considerable notoriety and public interest surrounding the case. These circumstances, according to the learned Magistrate, meant that the publication of the name of the Judge was likely to lead to the identification of the victim. That was a question of fact that he had to decide.

[747]

It is not open to this Court on an order to review to interfere with a finding of fact by the learned Magistrate unless it can say that the finding was one that no reasonable tribunal could have come to. I could not so find and I was not really asked to so find."[258]

[748]

299. His Honour's judgment is helpful but I note that it was given in the context of "likely to lead to the identification of" the victim rather than that of whether the identity of an individual "is apparent, or can reasonably be ascertained, from the information or opinion." The use of the word "from" indicates that the "information or opinion" is the "source or origin"[259] from which the information is apparent or can reasonably ascertained. That is a different test from that which applied under JPR Act. On its face, it is a test that is limited to the information or opinion in the requested document. If, on the facts of any particular case, that turns out to be so, then the test is satisfied.

[749]

300. If it turns out not to be so, the question then becomes whether the test is limited in that way. I do not think that it is. If access is given to the document under the FOI Act, then, potentially and provided it is not information about the personal or business affairs of the person requesting the document, it becomes part of the information that is available to the public. If the identity of an individual is apparent or can reasonably be ascertained by reading both the information in the document and that which is already available in the public arena, the "information or opinion" in the requested document is no less the "source or origin" of the identification. It is the source or origin of information that gains its meaning from the context in which it is disclosed. As the definition of "personal information" requires that an individual's identity is apparent or can reasonably be ascertained from the information or opinion, the context in which that is ascertained must also be defined by reference to the information that is apparent in the public arena or can reasonably be ascertained from it.

[750]

301. To illustrate, I will mention a couple of examples. If, for example, information in the wider context were only available from a private source, that would not be in the public arena and could not be used to decide whether the information enabled the identity of an individual to be identified as required by the definition of "personal information". If that information were in the public arena but could only be obtained after complicated and tedious searches, that would be a factor in determining whether the individual's identity "can reasonably be ascertained" (emphasis added) from the information or opinion.

[751]

302. A further question arises in relation to information that is available to some members, or even one member, of the public but is not available to all. This arises below in relation to the academic transcripts showing the names and student numbers of students at SICB and their results. Document 734 in Category 9 is an example.[260] Exemption is claimed under s 41(1) for the academic results. In an age in which records are computerised and search engines increasingly sophisticated, it would not be unreasonable to expect that a person who had access to SICB's records could use the subjects and their codes, the dates of study and the results and marks for each subject to identify the person who is the subject of the academic transcript. It seems to me that regard should be had to all resources that may be available to a member of the public in deciding whether an individual's identity can reasonably be ascertained from the information or opinion. That may be information that is available to all members of the public or may be available only to a limited number of them. The existence or nature of the information cannot be a matter of conjecture or speculation for the individual's identity must be something that "can reasonably be ascertained, from the information or opinion". The word "reasonably" effectively eliminates conjecture or speculation.

[752]

"unreasonable disclosure" unqualified by s 41(2)

[753]

303. The qualification found in s 41(2) to the exemption in s 41(1) is a qualification which I have considered in previous cases. It does not arise in the circumstances of this case. Therefore, I have considered what is meant by the expression "unreasonable disclosure" without regard to it.

[754]

304. In Wiseman v The Commonwealth,[261] the Full Court of the Federal Court said of s 41(1) that "whether or not disclosure would be 'unreasonable' is a question of fact and degree which calls for a balancing of all the legitimate interests involved". The Court did not elaborate on the "legitimate interests" that were involved.

[755]

305. Earlier, Deputy President Hall had explored the issue in Re Chandra and Minister for Immigration and Ethnic Affairs[262] (Chandra) when he said:

[756]

"51. ... [I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what

[757]

s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

[758]

52. However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document."[263]

[759]

306. The legitimate interests inherent in this passage from Chandra are twofold. Both are public interests. One is the public interest in the disclosure of information held by government. The other is the public interest in protecting personal privacy of a third party. The balance between the two is achieved by determining whether the personal privacy of that third party might reasonably be disclosed by granting access under the FOI Act. The reasons in Chandra did not take the matter further.

[760]

307. Lockhart J adopted a similar course in Colakovski v Australian Telecommunications Corporation[264] (Colakovski) when he said:

[761]

" Before parting from the case there is a final observation I wish to make. The FOI Act is, as its preamble states, 'an Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies'. The object of the Act is stated in s 3 as being to enable Australians to have access, as far as is possible, to information in the possession of the Federal Government by making available to the public, information about the operations of Departments of the Commonwealth and its public authorities and by creating a general right of access to information in documentary form in the possession of ministers, departments and public authorities. But, as s 3 itself recognises, there are limitations upon these rights of the Australian community which are expressed as being 'necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities'".[265]

[762]

308. This passage underlines what is clear from s 3(1)(b) itself. The FOI Act seeks to achieve a balance among several public interests. On one side of the scales is the public interest in the public's having a right of access to official documents of the Commonwealth and of government. On the other side are several public interests. One is the public interest in protecting other public interests such as the efficient operation of government, Commonwealth/State relations and Australia's security and international relations. Another is the public interest in protecting from disclosure the private and business affairs of those who deal with agencies. In some instances, Parliament has defined the public interest it seeks to protect by reference, in part, to the public interest. Section 40, which is one of the sections in issue in this case, is an example and I will return to that below.

[763]

309. This is the point that Lockhart J made in Colakovski when he said:

[764]

"... The exemptions necessary for the protection of 'personal affairs' (s 41) and 'business or professional affairs (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights; rather it is in the furtherance of the public interest that information of this kind is excepted from the general right of public access, provided the other conditions mentioned in ss 41 and 43 are satisfied. An examination of the other provisions of Pt IV of the Act concerning exempt documents confirms this approach."[266]

[765]

310. Therefore, the exemption in s 41 encapsulates an existing public interest as did all the exemptions in Part IV at the time the FOI Act was enacted. Encapsulation of a public interest does not equate with the incorporation of a public interest consideration as the Tribunal in Re Marshall and Department of Defence and Heath (Joined Party)[267] has concluded. After quoting the definition of "personal information" in s 4(1) and referring to the requirement that the disclosure must be unreasonable, it said:

[766]

"... The test of unreasonable disclosure requires, essentially, a public interest consideration [Colakovksi v Australian Telecommunications Corporation (1991) 29 FCR 429, per Lockhart J at 437-8] in which regard must be had to all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance [Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257 at [51]]."[268]

[767]

311. The Tribunal then applied these principles to documents relating to the evaluation of certain tenders that had been submitted to the Department of Defence. The Inspector-General of Defence had conducted an enquiry into that evaluation and into allegations of misconduct. The Tribunal concluded:

[768]

"... In the circumstances the public interest in the protection of personal privacy and the public interest in the proper investigation of alleged misconduct weigh against disclosure. Considering the terms of the section and all the particular circumstances, we accept that the disclosure of personal information that has not been properly tested or obtained in the course of an investigation by the Inspector-General, and that is likely to be prejudicial, may well be unreasonable."[269]

[769]

312. The factors to which the Tribunal referred in stating the general principles are taken, as it acknowledges, from the passage at [51] of Deputy President Hall's reasons for decision in Chandra. That passage has long been taken to be a classic statement of what is "unreasonable" as it is used in s 41(1). No reference is made in Chandra to weighing competing public interests and none is made in the later case of Colakovski. Neither is authority for that proposition and, for the reasons I have given above, s 41(1) does not incorporate a public interest test or a weighing of one public interest against another. The test is cast in terms of what is an "unreasonable" disclosure of personal information. Protecting personal information about a person from unreasonable disclosure is the public interest that is protected. It should not be recast in terms of a "public interest in protecting personal privacy"[270] for, while that may be a relevant consideration under the Privacy Act 1988, it is not the public interest encapsulated in s 41(1) of the FOI Act. The public interest is in restricting access to documents where their disclosure under the FOI Act would involve the unreasonable disclosure of personal information, as that term is defined, about any person.

[770]

313. Apart from specific instances such as s 40, the FOI Act does not contain any provision requiring or encouraging access to be given when the agency, Minister or Tribunal is of the opinion that the public interest requires disclosure. Provided there is no other law preventing it, the agency or Minister may give access even if exemption could be claimed under the FOI Act. Although not specifically stated in the FOI Act, it is clear from a reading of ss 58(1) and (2) that this is the case. Section 58(1) provides that, subject to the section itself, the Tribunal has power to decide any matter that could have been decided by an agency or Minister in relation to a request under the FOI Act. Section 58(2) immediately qualifies the Tribunals' power by providing that "... the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted."

[771]

314. This express denial of power is to be contrasted with s 50(4) of VicFOI. Subject to four exceptions, that section provides that VCAT:

[772]

" ... shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document ...where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act."

[773]

No similar power is to be found in the FOI Act. Consequently, I can have regard to the public interest only in the context of the particular exemptions in which it is expressed to be a criterion.

[774]

315. The right of access to documents is not given pre-eminence over the exemptions and exceptions to it so that the right of access is construed liberally and the exception and exemptions narrowly. The right of access is subject to the exceptions and exemptions necessary for the protection of the public, personal and private interests identified in the FOI Act and delineated in Parts III and IV.

[775]

316. Had Parliament given the right of access a pre-eminence of some sort, the correlative duty imposed on the Minister or agency would have mirrored that right. As it is, the duty mirrors a right that is qualified. It follows that the exceptions and exemptions to the right of access should not, as a matter of principle, be construed narrowly and the right of access more liberally. Each must be given its meaning according to its terms and the context in which it appears and not artificially narrowed or extended.

[776]

317. The interest of a person in requesting access is the subject of s 11(2) when it provides:

[777]

"Subject to this Act, a person's right of access is not affected by:

[778]

(a) any reasons given by the person for seeking access; or

[779]

(b) the agency's or Minister's belief as to what are his or her reasons for seeking access."

[780]

318. The words "Subject to this Act" has taken me on a search of the FOI Act to consider the circumstances in which a person's right of access would be affected by the person's reasons for gaining access. Arguably, an example could arise under exemptions requiring consideration of whether disclosure would be contrary to the public interest. The use that the person might want to make of the information could be relevant.[271]

[781]

319. What s 11(2) does not refer to is the identity of the person. That does not mean that it is irrelevant for the right of access is formulated in terms that are also "Subject to this Act". The identity of the person requesting access is clearly relevant in the qualification appearing in s 41(2) and in the similar qualification found in s 43(2) in relation to the business affairs exemption.

[782]

320. The question remains whether either reasons for seeking access or the identity of the person doing so are relevant in deciding whether disclosure is unreasonable within the meaning of s 41(2). I have looked also to s 27A of the FOI Act for some guidance. It is the means by which an agency can find out the thoughts of the person whose personal information is the subject of a request under the FOI Act. In general terms, it applies if an agency receives a request in respect of a document containing personal information about a person and it appears that the person might reasonably wish to contend that the document is an exempt document in so far as it contains that information.

[783]

321. In deciding whether that person might reasonably wish to contend that a document is an exempt document under s 41, the agency must have regard to:

[784]

"(a) the extent to which the personal information is well known;

[785]

(b) whether the person to whom the personal information relates is known to be associated with the matters dealt with in the document;

[786]

(c) the availability of the personal information from publicly accessible sources;

[787]

(d) such other matters as the officer, Minister or reviewer, as the case requires, considers relevant."[272]

[788]

322. Each of the first three of these criteria is determined by reference to objective factors all of which are focused on the public availability of the information. None is determined by reference to the person's relationship with the person requesting the information. That this is so is underlined by the lack of any suggestion in s 27A that the agency must reveal the name of the person making the request. Applying Principle 11 of the IPPs established under s 14 of the Privacy Act, the agency would not be permitted to reveal that name unless the person requesting access consented to the disclosure. The emphasis of the first three factors influences and constrains those matters that the officer, Minister or reviewer might consider relevant under the fourth criterion. The emphasis is one of public availability of the information.[273] That genus is consistent not only with the first three criteria but with the absence of any limitation in the FOI Act upon the use that a person might choose to make of information received in documentary form under it.

[789]

323. There are three matters that favour my concluding that s 41(1) must be assessed on an objective basis. They are the balance that s 41 seeks to achieve between two public interests, the specific exceptions to the general principle that a person's reasons for seeking access are irrelevant and the criteria to which an agency must have regard. They are persuasive but I have also had regard to whether there are any limitations that can be placed on the use of personal information in a document to which access has been given. If there are limitations that can be imposed in particular instances by reference to the particular identity of the recipient of the information, they could be relevant in considering whether identity is relevant.

[790]

324. On its face, the FOI Act contains no restrictions on the use that may be made of a document to which access is given under it. It does, however, recognise that there may be restrictions under the general law. Section 91(2) expressly provides that the grant of access under the FOI Act is not to be taken as an authorisation or approval for the purposes of the law relating to defamation or breach of confidence or for the purposes of the law of copyright. That means that there is no protection from an action should the person to whom access is given choose to publish the document or its contents or do anything that would amount to a breach of copyright. Protection is available to those who give access under the FOI Act as the giving (as distinct from the dissemination by those to whom it is given) does not amount to a publication of the document or of its contents or to the doing of anything that would otherwise be a breach of copyright.[274]

[791]

325. In his judgment in Colakovski, Jenkinson J reached the same conclusion:

[792]

"... [N]o provision is made in the Act for restricting dissemination of information contained in a document to which access is granted. I say nothing as to whether in this case the use of such a provision, if it had existed, might have been appropriate. But it is not difficult to imagine circumstances in which the recipient of telephone calls of the kind made in this case would be thought to have a strong moral claim to access to information about the caller's personal affairs which it would be unreasonable to disclose to other members of what s 3 of the Act calls 'the Australian community'. But nothing in the Act except s 91(2) qualifies the recipient's freedom to disseminate throughout that community information contained in a document to which he has been granted access. The second is that, in determining what is to be considered 'the unreasonable disclosure of information' for the purposes of s 41(1), the provisions of s 14 of the Act should in my opinion be kept in mind. That section provides:

[793]

'Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.'

[794]

Again I say nothing as to whether in this case reference to that provision would have been useful. But it may, in my opinion, be in some cases a consideration relevant to the determination of the reasonableness of a disclosure under the Act, a disclosure which may result in general public dissemination of the information, that disclosure may properly be made otherwise than under the Act to him who has a particular interest to receive the information, or some part of the information."[275]

[795]

326. It follows both from the principles applied in Colakovski and from the provisions of the FOI Act that the right of access given to every person is a right that does not change its nature according to the person who seeks to exercise that right. The right remains constant and the way in which the provisions of the FOI Act delineate that right must be interpreted and applied consistently. Consistent application means that what is unreasonable disclosure in terms of s 41(1) must be judged by reference to an objective standard and not by reference to the interests, knowledge or reasons of the person requesting access or by reference to the identity of that person. If it were otherwise, s 27A would require the agency to disclose the identity of the person requesting access to the person whose personal information appears in the requested document. It would require the agency to have regard to matters that are relevant to the reasons for seeking access and to reasons for refusing access to the particular person. Section 27A requires no regard to be had to matters of that sort.

[796]

327. The FOI Act imposes no restriction on the dissemination of the information that is obtained in documentary form under it. That is also a relevant consideration. Any restrictions that are imposed upon it are to be found in laws other than the FOI Act be they embedded in other legislation or in practical restrictions that flow from laws such as those regulating defamation, breach of confidence and copyright.

[797]

328. I realise that this conclusion leaves me at odds with that reached by the Victorian Court of Appeal in Victoria Police v Marke[276] (Marke). The Court of Appeal considered s 33(1) of the Freedom of Information Act 1982 (Vic) (VicFOI) which provides that a document is an exempt document if "... its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person)." The issue was whether the decision-maker had to, or could, consider the likelihood that Mr Marke would publish the document or information to any other person. The Court of Appeal decided that possible publication was an irrelevant consideration. It also decided that the decision-maker would need to take account of a number of matters including whether, and to what extent, the personal information was known to the applicant and the nature of any interest which the applicant could demonstrate in the information in the document be it personal information or other information.[277] The decision as to whether:

[798]

"... disclosure would be unreasonable is to be arrived at by examining matters peculiar to the applicant, the document and the personal information in question. ... [W]hat s 33(1) requires is the making of a judgment, based on a synthesis of the relevant features of the case at hand, about whether the disclosure of the personal information to the applicant would be unreasonable."[278]

[799]

329. The Court of Appeal also rejected the proposition that disclosure of a document under VicFOI is disclosure to the world at large. I have described the same proposition above when I said that the FOI Act imposes no restriction on the dissemination of the information that is obtained in documentary form under it. In rejecting the proposition, Maxwell P said:

[800]

"... The concern of s 33(1) is with 'disclosure under this Act', that is, with disclosure to the applicant and, critically for present purposes, with what that disclosure involves. As counsel for Mr Marke submitted, disclosure to the applicant is not disclosure to the world. It is disclosure to a person who can, if he/she chooses, communicate the information selectively, or generally, or not at all. Disclosure to the applicant does not involve - that is, entail or have as its necessary corollary - disclosure by the applicant to any other person."[279]

[801]

330. The judgments of Weinberg JA and Pagone AJA were to similar effect. While Weinberg J referred to the judgment of Lockhart J in Colakovski, he did not refer to the passages which I have touched upon above. Instead, he limited himself to the passage in which Lockhart J considers the disclosure of personal information which is already regarded as notorious.[280]

[802]

331. This is a case I considered in Callejo and distinguished. I did not do so lightly for, although not bound by judgments of a Court outside the federal jurisdictional hierarchy, they should be regarded as very persuasive. I distinguished it on two bases. The first is that it is not consistent with Colakovski, which is a judgment of the Federal Court by which I am bound. The second is that the structures of the FOI Act and that of VicFOI are a little different. I adopt my reasons in Callejo[281] in addition to those I have given above.

[803]

332. Documents 798, 853 and 977 each contains information identifying a person or persons who has or have given a witness statement and/or has been interviewed by FCIS. I am satisfied that the information that is contained in the documents is information about an individual or individuals whose identity is apparent. Therefore, it is "personal information" as defined in s 4(1) and as referred to in s 41(1). I am also satisfied that the personal information was given by each person or persons when making a statement or giving information in relation to the investigation that was Operation Dachshund.

[804]

333. I am satisfied that the disclosure of each would be unreasonable within the meaning of s 41(1) of the FOI Act. If access were to be granted, disclosure would not, and could not, for the reasons I have given be conditional or be regulated in any way. That means that use may be made of the whole of the information about any individual or any part of it. Reference could be made to the fact that the personal information has been obtained as a result of an FOI request for access for documents relating to Operation Dachshund without reference to the reason for its being kept on Departmental files associated with that investigation or the way in which the personal information came to be kept on the Department's files. Disclosure would permit an association to be drawn between the individual or individuals and a Departmental investigation into allegations of fraud. That, in turn, could reasonably be expected to lead to a question regarding the role of the individual or individuals in the fraud alleged to have been perpetrated.

[805]

334. This is not a case in which the person or persons who gave the information contained in the documents has or have been charged. Had charges been laid, that would have been a relevant consideration for that takes a certain amount of personal information into the public domain. There is no suggestion that the person or persons have been the subject of any publicity, that they are known to be associated with matters relating to Operation Dachshund or that the information is already publicly available. On the face of the information contained in the documents, I am satisfied that the individual or individuals would be unlikely to consent to its being disclosed even though the investigation has now been completed.

[806]

335. Having regard to all of these matters, I am satisfied that disclosure of Documents 798, 853 and 977 would involve an unreasonable disclosure of personal information about the person or persons identified in them. They are exempt under

[807]

Category 5 documents: 152, 153, 238, 728, 737, 745, 762 and 991

[808]

336. These documents contain the names and contact details of persons who have given information to the Department. For the reasons I have given in [332] to [334] above, I am satisfied that the information is exempt under s 41(1).

[809]

337. These documents also contain information relating to the names and contact details of migration agents and agencies under investigation. It is personal information. I do not have any evidence whether the Department's recommendations to charge two migration agents with offences under the Migration Act was ever acted upon by the CDPP. Whether they have been would be a relevant consideration. Section 59A(3) of the FOI Act obliges the Department to take all reasonable steps to inform persons such as the migration agents when it had refused access to the documents under s 41 and Mr Lobo had applied to the Tribunal for review of its decision. Its obligation is to do that "as soon as practicable". On the material that I have, I do not know whether it has done so yet. Whether it is still within the time limit defined by what is "as soon as practicable" is not important for the moment. What is important is that they be informed now. They need to have the opportunity to exercise their rights under s 59A if they wish to do so but, at this stage of the proceedings, they need to have the opportunity to have their views heard. I propose to adjourn further consideration of the exemption in so far as it relates to information regarding those migration agents to enable the Department to ascertain whether charges were laid. If they have not been laid, I will find the relevant parts of the documents exempt. If they have been laid, I will consider the information that has been disclosed in the charges and in the subsequent prosecution together with any other information that relates to the interests of the migration agents.

[810]

338. My reasons for finding the information exempt if the migration agents have not been charged are these. The investigations into the activities of the migration agents were considered in the context of Operation Dachshund. Even if the Department recommended that charges be laid, there is a considerable difference between charges' being recommended and being laid. The laying of charges takes a matter into the public arena of the criminal courts. The proceedings are conducted in public and those charged answer the charges in public. To disclose personal information relating to an investigation when those under investigation were not charged and have no opportunity to answer any allegations made against them is unreasonable.

[811]

339. Document 152 also contains the names and other information that might reasonably be expected to identify visa applicants. It is personal information. I have found that the CDPP laid charges against four visa applicants. If the information in this document relates to one or more of those four visa applicants, that will be a relevant consideration in considering whether disclosure would be an unreasonable disclosure of his, her or their personal affairs. If it does not, I am of the view that the document is exempt under s 41(1) in so far as it contains personal information of that sort. My reasons would be the same as those I have given in relation to the migration agents. As with the migration agent information, I will adjourn further consideration of whether the documents are exempt under s 41(1) in relation to this information and for the reasons I have given at [336] to [337].

[812]

340. For these reasons, I have adjourned further consideration of the claims for exemption made in respect of Documents 152, 238, 762 and 991.

[813]

341. Each of these documents contains information I have found to be personal information about two classes of persons. One class comprises those who have given information to the Department. For the reasons I have given in relation to Documents 152, 728, 737 and 745, these documents are exempt under s 41(1). The other class comprises personal information about migration agents under investigation. For the reasons I have given at [336]-[337], I have adjourned further consideration of that claim for exemption.

[814]

342. The name, address and signature of a person who has given information to the Department is personal information.

[815]

343. The information that Document 346 contains regarding the court proceeding is unrelated to Operation Dachshund but it is related to a person who has given the Department information in relation to that operation. I have said that the fact that charges are laid in a court against a migration agent is a relevant consideration in deciding whether or not it is unreasonable to disclose that migration agents' personal information gathered during Operation Dachshund. That does not mean that court proceedings are always a relevant consideration and the information in Document 346 provides an illustration of a situation in which it is not. The fact that the proceedings have occurred is publicly available as are the nature of the documents lodged in the proceeding and the outcome of the proceedings. The content of the documents is not publicly available. To disclose the information would, for the reasons I have given in relation to Documents 798, 853 and 977 at [333] to [334] above be an unreasonable disclosure of the personal affairs of the person identified in Document 346.

[816]

Category 7 documents: 139, 333, 344, 597, 636, 739, 741, 763, 864, 865 and 998 and 509, 596 and 1019

[817]

344. Document 139 contains information, that I am satisfied is personal information, regarding a migration agent and a person who has provided information to the Department. For the reasons I have given in relation to Documents 798, 853 and 977 at [333] to [334] above, it is exempt under s 41(1) in relation to the personal information of the person who has provided information. In relation to the information relating to a migration agent, I have adjourned further consideration for the reasons I have given at [336] to [337] in relation to Document 152, 238, 762 and 991.

[818]

345. Documents 333, 344, 597, 636, 763 and 864 each contains information relating to a migration agent and agency under investigation and a visa applicant under investigation. I do not know whether any of the migration agents or visa applicants were charged. Therefore, for the reasons I have given at [336] to [337] (Document 152, 238, 762 and 991) in respect of the investigations of migration agents and at [339] (Document 152) in respect of the investigations of visa applicants, I adjourn further consideration of the exemption claims under s 41(1) in relation to these documents.

[819]

346. Documents 509, 596 and 1019 each contains information that might identify a person providing information to the Department. I am satisfied that it is personal information. For the reasons I have given at [333] in relation to Documents 798, 853 and 977, I am satisfied that the documents are exempt under s 41(1) in relation to that information.

[820]

347. Documents 739, 741, 865 and 998 contain information that identifies visa applicants who were under investigation in Operation Dachshund. It is personal information. For the reasons I have given at [339] above in relation to Document 152, I am satisfied that the information would be exempt under s 41(1) of the FOI Act if it does not relate to any of the four visa applicants who were charged. If it does relate to them, I would need to consider the matter further in light of the information revealed on the charges and after considering any further information. For the reasons I gave at [336]-[337], I adjourn further consideration of this claim for exemption.

[821]

Category 9 documents: 475, 564, 577, 608, 620, 640, 643, 644, 723 and 1029 and 87, 209, 553, 556, 579, 635, 695, 725, 731, 734, 760, 898 and 900

[822]

(i) Documents 475 and 608 and 209, 695, 725, 760, 898 and 900

[823]

348. Each of the documents in this sub-category contains the name, birth date and other information identifying a visa applicant under investigation. Documents 475, are emails between officers of the Department. Documents 608 are computer printouts of the Department's records of the courses in which visa applicants under investigation have enrolled. Documents 209, 898 and 900 list the names and personal and contact details of visa applicants under investigation. Documents 725 and 760 are similar to Documents 209, 898 and 900 in that they list the personal details of visa applicants under investigation together with information such as that relating to the date on which they arrived in Australia. Both Documents 725 and 760 are AIB reports. Document 695 is an incoming passenger card that has been annotated by the Department and contains the name and personal information about a visa applicant under investigation.

[824]

349. The information for which exemption is claimed is personal information. For the reasons I have given at [339] above in relation to Document 152, I am satisfied that the information would be exempt under s 41(1) of the FOI Act if it does not relate to any of the four visa applicants who were charged. If it does relate to them, I would need to consider the matter further in light of the information revealed on the charges and after considering any further information. For the reasons I gave at [336]-[337] I adjourn further consideration of this claim for exemption.

[825]

350. Document 564 is a receipt issued by the SICB containing the name of a student at SICB and other information identifying that student. Document 644 is a Diploma of Hospitality - Management that shows a student's name and other identifying information. Document 734 is made up of academic transcripts and certificates prepared by SICB and showing the name of a student together with other identifying information. Documents 87 and 635 are lists of the names of students at SICB.

[826]

351. I am satisfied that the information for which exemption is claimed is personal information. The identity of individuals is apparent from the students' names themselves. The student identification numbers are means by which their identity could be reasonably ascertained if access were had to SICB's records. These are not records that are available to the public but they are records that are likely to still be in existence and available to some person or persons. That leads me to conclude that the student number is personal information. The marks and results awarded for each subject do not themselves identify the individual. They are more problematic than the student numbers but the same reasoning leads me to conclude that they are also personal information about an individual. They express an opinion about the standard that individual met on being assessed for each subject. They express a fact about the mark or result that was awarded on being assessed. If SICB's records were searched for the mark or result in conjunction with the subjects and the dates they were undertaken, all of which have been disclosed, it is likely that the identity of the person to whom they were awarded could reasonably be ascertained. Therefore, I have concluded that the names, student numbers and marks and results are personal information as that term is defined in s 4(1) of the FOI Act.

[827]

352. To disclose that personal information in response to a request under the FOI Act would be an unreasonable disclosure of that information. Disclosure would not, and could not, for the reasons I have given be conditional or be regulated in any way. That means that use may be made of the whole of the information about any individual or any part of it. Reference could be made to the fact that the personal information has been obtained as a result of an FOI request for access for documents relating to Operation Dachshund without reference to the reason for its being kept on Departmental files associated with that investigation or the way in which the personal information came to be kept on the Department's files. Disclosure would permit an association to be drawn between the individual or individuals and a Departmental investigation into allegations of fraud. That, in turn, could reasonably be expected to lead to a question regarding the role of the individual or individuals in the fraud alleged to have been perpetrated.

[828]

353. This is not a case in which the person or persons who gave the information contained in the documents has or have been charged. Had charges been laid, that would have been a relevant consideration for that takes a certain amount of personal information into the public domain. There is no suggestion that the person or persons have been the subject of any publicity, that they are known to be associated with matters relating to Operation Dachshund or that the information is already publicly available. On the face of the information contained in the documents, I am satisfied that the individual or individuals would be unlikely to consent to its being disclosed even though the investigation has now been completed.

[829]

354. Having regard to all of these matters, I am satisfied that Documents 564 and 644 and 87, 635 and 734 are exempt under s 41(1) to the extent to which exemption has been claimed.

[830]

355. Document 577, contains the name of a person described by the Department as its witness together with other information that identifies that person. It also contains details of documents that the person has given to the Department. Those documents include some relating to migration agents under investigation. Document 620 is a file note prepared by a Departmental officer. It records a telephone conversation with a person described as a Departmental witness. The note identifies that person by name and through other information and records the name of a migration agent under investigation. Document 731 is a statement by a visa applicant under investigation. Documents 723 and 1029 are similar in the type of information it records but takes the form of a chain of emails between Departmental officers.

[831]

356. I am satisfied that the information for which exemption is claimed is personal information within the meaning of the FOI Act. I do not know whether the migration agents were ever charged with offences. For the reasons I have given at [352]-[353] in relation to the personal information of the person giving material or information to the Department, I am satisfied that its disclosure under the FOI Act would be an unreasonable disclosure. Documents 570 and 620 are exempt to the extent that they contain that information. For the reasons I have given at [336] to [337] above, (Document 152, 238, 762 and 991) in respect of the investigations of migration agents and [339] in relation to the investigation regarding the visa applicant named in Document 152, I adjourn further consideration of the exemption claims under s 41(1) in relation to these documents.

[832]

357. Documents 640 and 643 contain the name of a migration agent under investigation and that of a visa applicant under investigation. They are file notes kept by Departmental officers. Again, the information is personal information but I do not know whether the migration agent has been charged. The same applies to the visa applicant.

[833]

358. For the reasons I have given at [336] to [337] (Document 152, 238, 762 and 991) in respect of the investigations of migration agents and at [339] (Document 152) in respect of the investigations of visa applicants, I adjourn further consideration of the exemption claims under s 41(1) in relation to these documents.

[834]

359. Document 553 is a table compiled by the Department It summarises documents received from a witness and includes receipts, academic transcripts and other documents from SICB. Some of the information is personal information in the sense that it is information about a person or persons. Only some of that information is about a person or persons whose identity is apparent. It is only that information that is personal information within the meaning of s 4(1) and so of 41(1) of the FOI Act. A receipt number, for example, can identify a person who already has the receipt records of SICB. As those records are not in the public arena, a receipt number does not identify an individual in any way. Comments recorded in the document are not necessarily directed at the person named in those comments. Rather, the name of the person is used as a means of identifying an issue of concern. The name is personal information but nothing from the context in which names appear in the document is of that nature.

[835]

360. Disclosure of the names in Document 553 would be an unreasonable disclosure of personal information within the meaning of s 41(1) of the FOI Act. It would take place in the context of a request for access under the FOI Act for information relating to Operation Dachshund. There is no suggestion that the person or persons have been the subject of any publicity, that they are known to be associated with matters relating to Operation Dachshund or that the information is already publicly available. To disclose in those circumstances would be unreasonable. On the face of the information contained in the documents, I am satisfied that the individual or individuals would be unlikely to consent to its being disclosed even though the investigation has now been completed.

[836]

361. Therefore I find that Document 553 is exempt to the extent that names appear in the document. None appears in the first column, one in the second in the seventh line, none in the third, fourth sixth and seventh columns. In the fifth column, a name appears in the 8th, 13th, 17th, 22nd (two names), 24th, 25th (two names), 26th, 27th and 29th lines. Each is exempt under s 41(1) but the document is not otherwise exempt. Having regard to s 22, the names should be deleted and access given to the remainder.

[837]

362. Document 579 is a computer printout showing extracts from a visa applicant's social networking website. The information contains text giving personal details and photographs. It identifies the visa applicant and other persons identifying themselves as friends of the visa applicant. The information is personal information in the sense that it is information about a person or persons whose identity is apparent. To disclose it in response to a request under the FOI Act for information regarding an investigation of alleged fraud and in circumstances in which there is no evidence in the material to suggest that the visa applicant has been charged with an offence is unreasonable. It suggests an association between the person and allegations of fraud that does not necessarily have any foundation in fact. It is exempt in its entirety under s 41(1) of the FOI Act.

[838]

363. Document 556 is a Departmental document entitled "Application for Assessment of Trade Training and Expertise". It contains information from a visa applicant who was under investigation for the purposes of a skill assessment by the TRA. For the reasons I have given at [339] above in relation to Document 152, I adjourn further consideration of the exemption claims under s 41(1) in relation to this document. I do not know whether the visa applicant has been charged or not. Without that information and without taking steps to give the person an opportunity to express a view, I am not in a position to decide whether or not disclosure of the information in the document, which is personal information relating to a particular visa applicant would be unreasonable.

[839]

Document 112, 962 and 963 are copies of the same minute written by a Departmental investigator regarding the qualifications of a visa applicant who was under investigation. For the reasons I have given at [339] in relation to Document 152, I have adjourned further consideration of the exemption in relation to the personal information relating to the visa applicant.

[840]

365. The documents also include information about a person who has given information to the Department. I am satisfied that it is information that is personal information and that is reasonably likely to identify the person giving it. To disclose it under the FOI Act in response to a request of the sort made by Mr Lobo is unreasonable. The passage in which this information appears at folio 75 of Document 112¸ page 7 of Document 962 and page 12 of Document 963 also includes information that is not personal information. I have considered whether it is reasonably practicable to delete the personal information from the remainder so that Mr Lobo can be given access to the remainder in accordance with s 22(1) but have decided that it is not. The whole of the passage that appears at the end of folio 75 and for which exemption has been claimed is exempt under s 41(1).

[841]

366. Document 98 is an Academic Transcript issued by the SICB in respect of a student's course of study for Certificate III in Hospitality - Commercial Cookery. Only part of the information is claimed to be exempt under s 41(1). That information encompasses the student's name, student number, the subjects studied, the marks attained and the date on which the marks were awarded. I accept that all of this is personal information about an individual whose identity is apparent. For the reasons I have given at [350]-[352] above in relation to Documents 564 and 644 and 87, 635 and 734, I am satisfied that the information is exempt under s 41(1).

[842]

367. Document 99 confirms the enrolment of a student in a course at SICB and asks the student to lodge it with the Department when applying for a student visa. It sets out the name and date of birth of the student as well as other information identifying that student. For the reasons I have given in the previous paragraph, I am satisfied that it is exempt under s 41(1).

[843]

368. Document 1018 comprises a chain of emails among officers of the Department. It is headed "Re: audit on Sydney International College of Business". A passage at the bottom of folio 117 and the top of folio 118 is said to contain information disclosed to investigators by confidential sources. It is said that disclosure of the passage is likely to identify those confidential sources.

[844]

369. I am satisfied that the passage contains information that might identify the person or persons who gave it. I say "might" because it would need to be taken with other information in order to come to a precise identification. That other information would not necessarily be known to anybody other than a select circle but it would be known to those. For the reasons I have given above,[282] I consider that I can have regard to that fact in deciding whether the identity could reasonably be ascertained from the passage for which exemption is claimed. Given the context in which the personal information would be disclosed under the request, I am satisfied that its disclosure would be unreasonable. That part of Document 1018 is exempt under s 41(1).

[845]

370. Document 894 is a list showing the names of a number of persons and recording their names, migration status, nationality, addresses, courses they are studying and fees they have paid. Exemption is claimed for it in full. For the reasons I have given in relation to Documents 564 and 644 and 87, 635 and 734, I am satisfied that Document 956 is exempt under s 41(1) to the extent to which it has been claimed and that Document 894 is exempt in its entirety.

[846]

371. Documents 286, 287 and 997 are emails in the same chain between a VETAB officer and an officer of the Department. Each records the name of a migration agent and agency under investigation and the name and other information that identifies a visa applicant under investigation. That is personal information in relation to the migration agent and the visa applicant. As I do not know whether the migration agent and/or the visa applicant has been charged, I have adjourned further consideration of the exemption claim. If they have not, the documents are exempt under s 41(1) to the extent claimed. If they have, they are not exempt. My reasons are the same as those I have given in relation to Documents 152, 238, 762 and 991 at [336] to [339] above.

[847]

372. Exemption is claimed in part for Documents 140 and 321. The first is a minute between officers of the Department assessing the allegations made against certain migration agents and migration agencies. The second is a document called an "Investigation plan" relating to SICB and another. Exemption under s 41(1) is claimed in respect of the names of migration agents and migration agencies under investigation, of other information identifying them and of allegations made against them. I am satisfied that the information referred to is personal information but again adjourn further consideration for the reasons given in relation to Documents 152, 238, 762 and 991 at [336] to [337] above.

[848]

373. Documents 140 and 321 also contain information identifying persons who have made allegations to the Department about the conduct of migration agents. It appears at pages 2 and 3 of Documents 140 together with passages on pages 4, 5, 6 and 7. On Document 321, it appears at pages 4 to 9. This is information that is personal information in the sense that it is information about individuals whose identity is apparent. It is the personal information about both the persons making the allegation and the persons about whom the allegations are made. They are interwoven and it would not be reasonably practicable to separate them. Even if the migration agents about whom the allegations have been made have ultimately faced charges so that disclosure of their information might not be unreasonable, it would remain the case that disclosure of the personal information about those making the allegations would remain unreasonable. It is unreasonable that their personal information be disclosed under the FOI Act in response to a request that asks for all documents relating to certain persons in relation to whom the Department is conducting an investigation. Those passages of the document are exempt under s 41(1).

[849]

374. Document 285 is entitled "Complaints against Sydney International College of Business". Exemption is claimed for it in full. As with the passages in the two documents I have considered in the previous paragraph, the information relates to the affairs of both the persons making the allegations and those about whom they are made. Obviously, some of the information concerns SICB but that is not an individual. Consequently, any information that concerns it is not personal information and considerations that arise under s 41(2) are not relevant. They are also irrelevant in so far as Mr Lobo is concerned for none of the information relates to him. For the reasons I have given in relation to particular passages in Documents 140 and 321 for which exemption has been claimed, I am satisfied that the whole of Document 285 is exempt under s 41(1).

[850]

375. Document 399 is a Ministerial Intervention Request made in relation to a visa held by a person described as a "Departmental informant". It includes a number of attachments. Exemption is claimed under s 41(1) in relation to the whole of the document. I am satisfied that it contains information about a number of individuals including the person described as a Departmental informant. It is information about each of them and some information can be described as being information about more than one individual. All of it is information about the Departmental informant for it records his or her views on certain matters. That is personal information. I am satisfied that it would be an unreasonable disclosure of that person's personal information it if were disclosed under the FOI Act in response to a request that asks for all documents relating to certain persons in relation to whom the Department is conducting an investigation. That document is exempt under

[851]

376. Document 1001 is very similar. The reasons I have given in relation to Document 399 apply equally to it. I am satisfied that it is exempt under s 41(1).

[852]

377. Document 523 is an email from what is described in the Schedule as a "third party" to an investigator working on Operation Dachshund. Document 1016 has a chain of emails between the Department and another person regarding teachers at the SICB. I am satisfied that both are exempt in their entirety under s 41(1). Both contain information about individuals that is personal information within the meaning of s 4(1) of the FOI Act. It would be an unreasonable disclosure of that person's personal information if it were disclosed under the FOI Act in response to a request that asks for all documents relating to certain persons in relation to whom the Department is conducting an investigation.

[853]

Category 9: Documents 53, 469, 472, 482, 483, 485, 527, 534, 547, 549, 550, 570, 650, 692, 693, 1017, 1020

[854]

378. Document 53 is a file note written as part of Operation Dachshund regarding a telephone conversation with a person said to be a "confidential informant". Exemption is claimed for parts of the document under s 41(1). Some of those parts set out the names of those who have given information to the Department. That is personal information of the sort defined in s 4(1). For the reasons that I have given in the previous paragraph in relation to Documents 523 and 1016, those parts of Document 53 are exempt. That conclusion relates to those parts for which the exemption has been claimed in lines 1 to 10, 21, 28, 29 and 35 on the first page of the document. It also applies to those parts for which the exemption has been claimed in lines 1, 5, 13, 22, 29 and 31 on the second page.

[855]

379. Exemption is claimed for other passages on both pages of the documents. With the exception of two passages, I am not satisfied that the remainder are personal information within the meaning of s 4(1). It may be information about an individual or individuals but his, her or their identity is not apparent and cannot reasonably be ascertained. Taking as an example a passage that appears on the first page, access has been granted to a paragraph in the following form. It is written by an officer of the Department in a file note recording a telephone conversation:

[856]

"'I understand your concern, I will double check about the FOI Act and anything we know about [passage for which exemption claimed] by speaking to us. Are you still prepared to speak to us again next Friday as we'd planned?'"

[857]

Revelation of the subject matter of the officer's enquiries in this instance does not reveal the identity of the person when read by itself or in the context of the whole of the file note.

[858]

380. One exception to this is found in the penultimate paragraph on the first page. I am satisfied that, were the passage released, the identity of the persons to which it refers could, when taken with the rest of the document, be reasonably ascertained. I have reached the same conclusion in relation to the second passage that I have excluded from my general comment. That is found in lines 7 and 8 on page 2 of Document 53.

[859]

381. For the reasons I have given in relation to Documents 523 and 1016, disclosure of these two parts of Document 53 would be an unreasonable disclosure of personal information and are exempt under s 41(1).

[860]

382. Document 469 is a facsimile message from a person to the Department attaching a copy of a document belonging to SICB. It contains information that is personal information within the meaning of s 4(1). The identity of those to whom the information refers or concerns are identified. For the reasons I have given in relation to Documents 523 and 1016, disclosure of these two parts of Document 53 would be an unreasonable disclosure of personal information and are exempt under s 41(1).

[861]

(iii) Documents 472, 482, 483, 485, 527, 547, 549, 570, 650, 692 and 693

[862]

383. Documents 472, 482, 483, 485, 527, 547, 549, 570, 650, 692 and 693 are file notes by a Departmental officer made during Operation Dachshund recording conversations with witnesses. Exemption is claimed in full for each of them and each of them contains personal information. I am satisfied that each of the documents contains information that is information about an individual whose identity can be reasonably ascertained. Therefore, I find that it is personal information and am satisfied that its disclosure in the context of a request for access to documents having a connection with Operation Dachshund is an unreasonable disclosure of the personal information of those individuals. That personal information is exempt under s 41(1).

[863]

384. I have considered whether it is possible to make a copy of the document from which the exempt matter has been deleted so that it would no longer be exempt. I have decided that it would not be possible to do so. Any information that might be regarded as information about a subject[283] other than the individual remains that person's personal information for it is information of views held by that individual. Therefore, I have decided that s 22 does not impose any obligation to make such a copy. The whole of Documents 472, 482, 483, 485, 527, 547, 549, 570, 650, 692 and 693 are exempt under s 41(1).

[864]

385. Documents 1017 and 1020 are emails between officers of the Department summarising information that has been given by a person or persons who has or have given information to the Department and that is likely to identify that person or those persons. Exemption has been claimed for them in their entirety under s 41(1). Again, I am satisfied that they contain information about an individual or individuals whose identity is either apparent or can reasonably be ascertained. For the reasons I have given in relation to similar information, its disclosure would be unreasonable if it was the personal information of persons who have not been charged with offences as a result of Operation Dachshund and so would be exempt under

[865]

s 41(1). Its disclosure would not be unreasonable if they have been charged. I have adjourned further consideration of the exemption claimed under s 41(1) in relation to these documents so that I can be given further information on whether they have been charged.

[866]

Category 18: documents 25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76 and 60, 64, 65, 70, 78, 81, 82, 83, 84, 85, 261 and 263 and 1023, 1074, 1083, 1084 and 1089

[867]

(i) Documents 25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76

[868]

386. The information for which exemption is claimed in these documents is described in the Schedule as either the "Attendance roll for SICB class", a "Summary of test results for SICB exam", "SICB class roster" or "Attendance roll for SICB exam". I am satisfied that they contain personal information as that term is defined in s 41(1). It is information about a person or persons whose identity is apparent. If it were information about a person or persons who have been charged as a consequence of Operation Dachshund, I would not be satisfied that its disclosure under the FOI Act would be unreasonable and, to that extent, the document would not be exempt but the remainder would be exempt. In compliance with the obligation in s 22 and which I have considered in Attachment I, I would be satisfied that it would be both possible and reasonably practicable to prepare a document from which the exempt matter had been deleted and so give access to that which is not exempt. If the personal information is about a person or persons who have not been charged, I would consider its disclosure under the FOI Act to be unreasonable and the documents exempt in their entirety under s 41. As I do not have information of that sort, I have adjourned further consideration of the claim for exemption made in relation to them.

[869]

(ii) Documents 60, 64, 65, 70, 78, 81, 82, 83, 84, 85, 261 and 263

[870]

387. Exemption is claimed in their entirety for each of these documents under s 41(1). Each records notes taken by an officer of the Department of conversations with various witnesses. I am satisfied that each contains information about individuals whose identity is apparent from the documents. For the reasons I have given in relation to Documents 472, 482, 483, 485, 527, 547, 549, 570, 650, 692 and 693, I am satisfied that their disclosure under the FOI Act would be unreasonable and that it is neither possible nor reasonably practicable to prepare copies of the documents from which exempt matter has been deleted. Therefore, I am satisfied that Documents 60, 64, 65, 70, 78, 81, 82, 83, 84, 85, 261 and 263 are exempt in their entirety under s 41(1) of the FOI Act.

[871]

(iii) Documents 1023, 1074, 1083, 1084 and 1089

[872]

388. Document 1023 is made up of a chain of emails between an officer of the Department and a third party and entitled "SICB". Documents 1074, 1083, 1084 and 1089 are internal emails referring to information that would identify third parties who have, or might help, the Department in its investigations. I am satisfied that each of the documents contains personal information and that it is neither possible nor reasonably practicable to prepare copies of the documents from which exempt matter has been deleted. Therefore, I am satisfied that, for the reasons I have given in the previous paragraph they are exempt in respect of that information under s 41(1) of the FOI Act. I am also satisfied that that it is neither possible nor reasonably practicable to prepare copies of the documents from which exempt matter has been deleted. Therefore, the documents are exempt in their entirety under s 41.

[873]

"A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence."

[874]

This provision is qualified by s 45(2). Except in two situations, s 45(2) excludes from the exemption internal working documents of the sort that come within the description set out in s 36(1)(a) or that would be of that sort if it were not for the qualifications to s 36(1)(a) found in ss 36(2), (5) and (6). Those two situations arise if disclosure would constitute a breach of confidence owed to a person or body other than a person in the capacity of a Minister, member of staff of a Minister, a Commonwealth agency or an officer of an agency.

[875]

390. In an earlier decision, Re Callejo and Department of Immigration and Citizenship (Callejo),[284] I set out the history of s 45. I adopt that reasoning but, for the purposes of this case, it is enough to note that s 45 had been amended on several occasions before its latest amendment. The Full Court of the Federal Court considered s 45 in its original form in Corrs Pavey Whiting and Byrne v Collector of Customs of Victoria and Alphapharm Pty Ltd[285] (Corrs Pavey). Gummow J dissented in that case but it is his interpretation that is now regarded as the appropriate interpretation of s 45 as it was enacted immediately before 1 November 2010. His Honour considered that s 45 used the expression "breach of confidence" in the sense known to law. Consequently, he continued:

[876]

"... the case is to be approached in terms of the general law, not as a case of confidence protected by contract, but as one, if anything, of confidence protected in equity. It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge), (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence, and (iv) there is actual or threatened misuse of that information. Saltman Engineering Co Ltd v Campbell Engineering Co (1948) 65 RPC 203 at 215; Commonwealth v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 50-1; [1980] HCA 44; 32 ALR 485 at 491-2; O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 326-8; [1982] HCA 33; 41 ALR 255 at 266-8. It may be necessary, as Megarry J thought probably was the case (Coco v Clark (AN) (Engineers) Ltd [1969] RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax "

[877]

391. A little earlier in his reasons, Gummow J had noted that the Tribunal had found that the information sought by the appellant had been given to the respondent by another entity, which was an importer. It had not been given on the basis of a contract between them but on the basis that it had been given voluntarily but in a legislative context. Had the respondent required the importer to give the information by directing it under a statutory power, his Honour said that he:

[878]

"... would have some difficulty in seeing how from these circumstances any obligation of confidence could arise under the general law. The question in such a case would rather be one of finding a statutory restriction (if there be one) upon use by the service of the information in the documents, and then of measuring the terms of that statutory restriction against the terms of the exemption in s 38 of the FOI Act. ..."[287]

[879]

392. Some of the earlier authorities have suggested that the exemption under s 45 is not limited to disclosure which would found an action for breach of confidence in equity but extends to other such actions arising, for example, under contract. In the case of Re Callejo and Department of Immigration and Citizenship[288] (Callejo), I reviewed a number of authorities on this subject. I concluded that:

[880]

(1) Regard must be had to the terms in which the exemption in s 45 is expressed i.e. in order to be an exempt document, its disclosure under the FOI Act must be such that it "would found an action ... for breach of confidence". That action is an action in equity and would have to be by a person other than an agency or the Commonwealth for s 45(1) expressly excludes actions by an agency or the Commonwealth).

[881]

(2) under the general law, actions for a breach of confidence may be based on a number of bases including that of contract but that the distinctions between an If a document is to be an exempt document, its disclosure under the FOI Act must be such that it "would found an action ... for breach of confidence". That action would have to be by a person other than an agency or the Commonwealth for s 45(1) expressly excludes actions by an agency or the Commonwealth).

[882]

(3) Actions in contract, tort, negligence and for breach of statutory duty are not actions for breach of confidence known to the general law even though they may be based on disclosure, or threatened disclosure, of information claimed to be confidential.

[883]

I set out my reasons for these conclusions and others in Callejo adopt and make them part of these reasons but will not repeat them.[289]

[884]

The first four elements required to found an action for breach of confidence

[885]

393. As applied to s 45, the four elements identified by Gummow J in Corrs Pavey are that:

[886]

(1) the information must be identified specifically;

[887]

(2) that information must be capable of being confidential so that it is not, for example, already a matter of public knowledge;

[888]

(3) the information must have been communicated to and received in circumstances that imported an obligation of confidence; and

[889]

(4) there is an actual or threatened misuse of that information.

[890]

394. It must be remembered that each of these elements must be considered against a background of "disclosure under this [FOI] Act". That does not mean that reference may be had to any disclosure of information that would otherwise satisfy the four elements. The question must be asked in relation to disclosure under the FOI Act. Suppose, for example, information were given by a person to another in circumstances meeting all four elements but that other person passed the information to the Commonwealth in circumstances in which the Commonwealth was unaware of the confidentiality of the information and which imported no obligation of confidence. Access under the FOI Act would not found an action for breach of confidence against the Commonwealth. What it would do would be to reveal an earlier disclosure which would found an action for breach of confidence against the person communicating it to the Commonwealth. The exemption under s 45 would have no application in that situation.

[891]

Is a fifth element - detriment - required to found an action for breach of confidence?

[892]

395. There has been uncertainty in the cases as to whether detriment must be established before the exemption may be claimed. In his judgment in Corrs Pavey, Gummow J had raised the possibility that it might be necessary to establish detriment. He referred to two judgments but the judgment of Mason J in the latter, Commonwealth of Australia v John Fairfax & Sons Limited and Others[290] (John Fairfax) decided that it is necessary to establish that unauthorised use would be to the detriment of the plaintiff_._

[893]

" _However, the plaintiff must show, not only that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be 'an unauthorised use of that information to the detriment of the party communicating it' (_Coco v. A.N. Clark (Engineers) Ltd. (1969) RPC 41, at p 47 ). The question then, when the executive government seeks the protection given by equity, is: What detriment does it need to show?

[894]

The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.

[895]

It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.

[896]

Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected."[291]

[897]

397. At one level, Mason J's judgment in John Fairfax is distinguishable on the basis that it was not concerned with s 45 of the FOI Act. It was concerned instead with whether the Commonwealth itself could claim breach of a confidence. It was in that context that the High Court said that the Commonwealth had to establish detriment on the basis of broader public interests. Those considerations are not directly relevant under s 45(1) for the exemption it establishes does not extend to an action founded by an agency (i.e. by a Department, a prescribed authority or an eligible case manager)[292] or by the Commonwealth.

[898]

398. Its principles may, however, be relevant in considering the fifth element of detriment in the context of s 45(1). Whether there is detriment must be considered by reference to the person by whom, if minded to do so, the action for breach of confidence would be founded. While an action for breach of confidence founded by the Commonwealth or an agency would not establish the exemption under s 45(1), it may be that an action by a body such as a public utility or incorporated body in which the Commonwealth is a shareholder would do so. That would follow from the fact that it may not be regarded as either the Commonwealth or an agency as that term is defined in s 4(1) of the FOI Act. If it were excluded from the definition of a "prescribed authority" so that it is not an "agency", an exemption under s 45(1) might be able to be established on the basis that disclosure would found an action by the public utility or incorporated body for breach of confidence. If that is the case, then consideration would need to be given to the fifth element of detriment identified by Gummow J in Corrs Pavey.

[899]

399. Whether detriment would be caused to two public utilities by an alleged breach of confidence was considered by the High Court in Esso Australia Resources Ltd v Plowman.[293] In that case, the majority of the High Court applied the principles in John Fairfax to documents held by public utilities owned by a State Government. It did so in the course of deciding whether an arbitrating party is under an obligation of confidence in relation to documents and information disclosed in, and for the purposes of, a private arbitration. The arbitration concerned issues arising from two agreements for the sale of natural gas from the Bass Strait fields to the Gas and Fuel Corporation of Victoria and the State Electricity Commission of Victoria. Mason CJ, with whom Dawson and McHugh JJ agreed said:

[900]

"39. The courts have consistently viewed governmental secrets differently from personal and commercial secrets ... . As I stated in The Commonwealth of Australia v. John Fairfax and Sons Ltd. ..., the judiciary must view the disclosure of governmental information 'through different spectacles'. This involves a reversal of the onus of proof: the government must prove that the public interest demands non-disclosure ....

[901]

40. This approach was not adopted by the majority of the House of Lords in British Steel Corporation v. Granada Television Ltd. ..., where the confidential documents in question revealed the internal mismanagement of a statutory authority. In passing, the majority attributed to the public interest exception a very narrow scope, stating that, although disclosure was of public interest, it was not in the public interest .... I would not accept this view. The approach outlined in John Fairfax should be adopted when the information relates to statutory authorities or public utilities because, as Professor Finn notes ..., in the public sector '(t)he need is for compelled openness, not for burgeoning secrecy'. The present case is a striking illustration of this principle. Why should the consumers and the public of Victoria be denied knowledge of what happens in these arbitrations, the outcome of which will affect, in all probability, the prices chargeable to consumers by the public utilities?"[294]

[902]

400. This approach was adopted by the Tribunal in Re Sullivan and Department of Industry, Science and Technology and Australian Technology Group Pty Ltd.[295] The Tribunal found the Australian Technology Group Pty Ltd, whose shares were owned solely by the Commonwealth and which could be wound up by the Commonwealth without any difficulty, was a public body and so required to establish detriment in the terms described by Mason J in John Fairfax.[296]

[903]

401. The principles in John Fairfax are not directly applicable to the disclosure of information where the claim for exemption is not centred on a claim by the Commonwealth government (or of a public body of the sort referred to in Esso) that information is confidential. Detriment, though, may still have relevance for s 45 is not concerned with whether disclosure of any sort would found an action for breach of confidence. Instead, it is concerned with whether disclosure "under this Act" would found that action. That is disclosure made in a legislative framework that reflects what Parliament considers is a proper balance of the public interest in disclosure and the public interest in protecting essential public interests and private and business affairs of persons dealing with the Commonwealth and its agencies.

[904]

402. The public interest grounds are not relevant to an action by a person who is not a public body of the sort considered in Esso. If, detriment is a necessary element in an action founded by such a person then, as Mason J said in John Fairfax, detriment may be that disclosure of information relating to his or her affairs will expose his or her actions to public discussion and criticism. It is apparent, though, from Fullagar J's judgment in Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd that there is more than one basis upon which breach of confidence may be established in equity. In analytical terms, one is to protect property, and information is regarded as property. The other is, in effect, to ensure that the confidant acts in a way that is consistent with good conscience and not unconscionably. If that is the case, the detriment may be the disclosure itself in circumstances in which the disclosure is neither consented to nor otherwise justified. That disclosure may be accompanied by embarrassment, distress or the like or by tangible loss or it may simply be unconscionable.

[905]

403. This analysis would seem to be consistent with the later judgment of Gummow J in the case of Smith Kline & French Laboratories (Aust) Limited v Secretary, Department of Community Services and Health[298] when he said:

[906]

"...The basis of the equitable jurisdiction to protect obligations of confidence lies, as the present case illustrates, in an obligation of conscience arising from the circumstances in or through which the information, the subject of the obligation, was communicated or obtained: Moorgate Tobacco Co Limited

[907]

v Philip Morris Ltd (No. 2) at 438. The obligation of conscience is to respect the confidence, not merely to refrain from causing detriment to the plaintiff. The plaintiff comes to equity to vindicate his right to observance of the obligation, not necessarily to recover loss or to restrain infliction of apprehended loss. To look into a related field, when has equity said that the only breaches of trust to be restrained are those which would prove detrimental to the beneficiaries?"[299]

[908]

On appeal, the Full Court adopted a similar approach.[300]

[909]

E.6 Is it necessary to have regard to possible defences to an action for breach of confidence?

[910]

404. I note that, in B and Brisbane North Regional Health Authority[301] (B and B) which considered s 46 of the Freedom of Information Act 1992 (Qld) (QldFOI), Information Commissioner Albietz considered:

[911]

"... that it is consistent with the general scheme of the Act (in which public interest considerations, and the balancing of competing public interest considerations are predominant ...) that s. 46(1)(a) should be interpreted as requiring defences to an action for breach of confidence to be taken into account. ..."[302]

[912]

Section 46(1)(a) of QldFOI provides that "Matter is exempt if - (a) its disclosure would found an action for breach of confidence ...".

[913]

405. The defences to which the Information Commissioner turned were:

[914]

there is just cause or excuse for disclosing the information i.e. where it is in the public interest to use or disclose the information in that way;[303]
it is in the public interest to disclose the information where that disclosure reveals evidence of a crime, serious wrongdoing or matters injurious to the public health; and
as the person who would bring an action of the sort referred to in

[915]

s 46(1)(a) of the QldFOI would have to do so with "clean hands", the action can be resisted on the basis that the person does so with "unclean hands".[304]

[916]

Information Commissioner Albeitz expanded upon the circumstances in which these defences may be made out.

[917]

406. Gummow J also analysed the defence of unclean hands in Corrs Pavey where the person who had given the information to the respondent was called to give evidence. He expressly rejected any notion that what he called a "public interest defence" in the sense used in the English cases, could be considered. The English authorities to which he referred extended the unclean hands defence to "... cases where the plaintiff's misconduct has operated to the prejudice of third parties, especially where some general public interest is involved ...".[305]

[918]

If I am correct in my view that the founding of an action is separate and apart from the defences to that action, I would also come to the view that it is irrelevant to consider them under s 45. I would so for another reason as well and will refer to a maxim to illustrate it. That maxim is described as meaning "... that when a plaintiff whose conduct has been improper in a transaction seeks relief in equity that relief will be refused".[306] It has been considered in a variety of contexts but one example will suffice:

[919]

"... in Harrigan v Brown [1967] 1 NSWR 342, which concerned the manager of a group of entertainers who sought an injunction restraining them from employing a rival manager, in breach of their contract with him. He failed because he had kept his accounts in a most improper manner, contrary to his agreement with the troupe, although Street J specifically held that his breach of contract was not of the kind which amounted to a repudiation of it such as would entitle the defendants to rescind. ..."[307]

[920]

408. In Meyers v Casey,[308] a member of the Victorian Racing Club was being threatened with expulsion after he attended a race meeting while a disqualified person. He sought an injunction on the basis that he had not been given an adequate opportunity to defend the charge. Isaacs J said:

[921]

" But the maxim, even where the plaintiff is forced to resort to equity for its assistance, has not an unrestricted application. In the leading case of Dering v. Earl of Winchelsea ...[ 1 Cox, 318] , at p. 319 Lord Chief Baron Eyre, with reference to an objection that the plaintiff had been guilty of misconduct, said:--'It is not laying down any principle to say that his ill conduct disables him from having any relief in this Court. If this can be founded on any principle, it must be, that a man must come into a Court of equity with clean hands; but when this is said, it does not mean a general depravity; it must have an immediate and necessary relation to the equity sued for; it must be a depravity in a legal as well as in a moral sense.'

[922]

In that case, the Lord Chief Baron thought the plaintiff was the moral author of his own wrong, but not legally, and therefore did not refuse the relief. Now, in attempting to apply the principle as laid down in that case, we find that the rights asserted by the appellant, namely, membership of the club and public right under the by-laws to enter the racecourse, of course exist, if at all, by reason of circumstances wholly independent of the alleged misconduct; the wrong he complains of, namely, his condemnation by an incompetent and unauthorized tribunal in the one case, and a disregard of natural justice in the other, are equally independent of any misconduct by him. It is therefore impossible to say, in the Lord Chief Baron's words, that his alleged misconduct has 'an immediate and necessary relation to the equity sued for,' or that it was 'a depravity in a legal as well as in a moral sense.'

[923]

It is altogether different from the cases where the right relied on, and which the Court of equity is asked to protect or assist, is itself to some extent brought into existence or induced by some illegal or unconscionable conduct of the plaintiff, so that protection for what he claims involves protection for his own wrong. No Court of equity will aid a man to derive advantage from his own wrong, and this is really the meaning of the maxim. As an illustration, see Cadman v. Horner ...[1810] EngR 494; [18 Ves,10]. Not only these considerations, but one other which should be specially mentioned in justice to the appellant, show that the maxim is not applicable here. That other reason is this: that the issue of whether the appellant was or was not in fact guilty of misconduct is in no way raised for the Court's determination, whereas the misconduct in respect of which the maxim is always applied is equally with all the other matters an issue within the Court's sphere of determination. If the racing tribunals had, or are to be taken to have had, the requisite authority, and to have acted within their powers, the finding of guilt must stand; if not, he has never been tried, and must be considered innocent until he is condemned by the proper tribunal--which was not the Supreme Court, and is not this Court. ..."[309]

[924]

409. It is apparent that a defence of unclean hands requires examination of far more than the information contained in a document which is in the possession of an agency and which is requested under the FOI Act. It would require more than an examination of the views of the person who confided the information. Indeed, it may be that, as far as that person is concerned, he or she has observed every propriety in dealing with others and has the cleanest of hands. Whether the person seeking a remedy for a breach of confidence has clean or unclean hands depends in part on the person whom he or she alleges is in breach. The impropriety complained of under the defence of unclean hands must have an immediate and necessary relationship with, in the case of an action for breach of confidence, that breach. It is difficult to see how that immediate and necessary relationship can ever exist in the context of the FOI Act. As a person's right of access under the FOI Act is unaffected by his or her reasons for requesting that access, the application or otherwise of the exemption is not assessed by reference to a particular person or in a particular context other than that of the FOI Act. It is whether disclosure "under this Act" would found an action for breach of confidence and not whether disclosure to a particular person in particular circumstances would do so. The defence of unclean hands is dependent upon disclosure by a particular person in particular circumstances. It cannot apply.

[925]

410. The inapplicability of the defence is underlined by the lack of particular provision made in the FOI Act for consultation in relation to s 45.[310] In only three instances has the FOI Act prescribed a formal process of consultation. One occurs in relation to a request in respect of documents likely to affect Commonwealth-State relations and so possibly exempt under s 33. It is found in

[926]

s 26A. Another is found in s 27A in relation to a request for documents containing personal information and possibly subject to the exemption in s 41. The third is found in s 27 in relation to a request for documents containing information relating to business affairs and possibly subject to the exemption in s 43.

[927]

411. Had it been thought that it relevant to consider possible defences in deciding whether or not disclosure would found an action for breach of confidence within the meaning of s 45, it would have been expected that the FOI Act would have prescribed a formal process of consultation of some sort. That it has not done so in relation to s 45 when it has done so in relation to ss 26A, 27 and 27A is a recognition that it is not required by the terms of s 45.

[928]

412. I realise that this appears to be a conclusion contrary to that favoured by Gummow J in Corrs Pavey. I am not bound by his judgment, given as it is in relation to an earlier version of s 45 and then in dissent. Even so, in the context of the development of s 45, I regard it with a considerable amount of respect. On the unclean hands defence, though, I note that his Honour has considered that defence only in the context of cases in the general law. His attention does not appear from his judgment to have been drawn to the particular context in which disclosure is made under the FOI Act and it is disclosure under the FOI Act to which s 45 refers. It seems to me that the context of the FOI Act is an important difference and one which permits me to distinguish his Honour's judgment in Corrs Pavey.

[929]

413. Document 523 is an email from what is described in the Schedule as a "third party" to an investigator working on Operation Dachshund. It contains an express statement that the information it provided "is to be confidential". That information is the information within the email. I am satisfied that it is capable of being confidential. It is not publicly available. It is clear from the text of the email that it has been communicated in confidence. On the basis of the evidence of Ms Pettit regarding the manner in which the information was collected, I am satisfied that information communicated in confidence was received on that basis. It has been given and received in circumstances that create an obligation of confidence from the Department to the third party. Although there is no specific evidence on the point, I am satisfied from its subject matter and the circumstances in which it was given that to disclose the information would bring at least embarrassment or discomfort to the third party. If detriment is required, that would be the detriment.

[930]

414. Having regard to all of these matters, I am satisfied that disclosure of Document 523 would found an action for breach of confidence by the third party. It follows that it is exempt under s 45 of the FOI Act.

[931]

415. Document 1016 comprises a chain of emails between the Department and another person regarding teachers at the SICB. Exemption is claimed for the name and contact details of the person communicating with the Department on the basis that the person is a "departmental informant". For the reasons that Document 523 is exempt, so too is this document. It contains information of the sort found in Document 523. In so far as it contains additional information, that information reflects that in Document 523. Disclosure of that information would be equally subject to an obligation of confidence and disclosure under the FOI Act would be a breach of confidence. I am satisfied that Document 1016 is exempt under s 45.

[932]

416. Document 53 is a file note written as part of Operation Dachshund regarding a telephone conversation with a person said to be a "confidential informant". I am not satisfied that the document is exempt under s 45 as a whole or at all. I have already decided that certain parts are exempt under s 40(1)(d) but I am not satisfied that the information it records has been communicated in confidence or is capable of being regarded as confidential information. It has not been communicated in circumstances that give rise to an obligation of confidence and disclosure of it under the FOI Act would not found an action for breach of confidence. Document 53 is not exempt under s 45 of the FOI Act.

[933]

417. Section 22 provides for the deletion of exempt matter or irrelevant material. In this instance, it is relied upon only for the deletion of what is claimed to be irrelevant material. Therefore, I have set out its provisions only in so far as they relate to that. Section 22(1) provides:

[934]

(i) not to grant a request for access to a document on the ground that it is not an exempt document; or

[935]

(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

[936]

(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(i) would not be an exempt document; and

(ii) would not disclose such information; and

[937]

(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

[938]

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy."

[939]

418. A claim that s 22 applies is often framed in terms of documents' being exempt under s 22 or that an exemption under s 22 is claimed. This is not accurate. Section 22 is a tool and not a barrier. It is a tool that must be used if it is reasonably practical to use it in the sense understood in s 22(1)(c) and if the outcome will be a document that does not contain exempt matter or information irrelevant to the request.

[940]

419. The term "exempt matter" is a reference to "... matter the inclusion of which in a document causes the document to be an exempt document."[311] An "exempt document" means "a document which, by virtue of a provision of Part IV, is an exempt document",[312] "a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act"[313] or "an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State."[314] Section 22 is not a provision of Part IV coming, as it does, in Part III. It comes into consideration when documents are assessed as exempt but that does not make it an exemption provision itself. A decision that a document is exempt is made under the relevant provision or provisions of Part IV. A decision that information in a document is irrelevant to the request is made under s 15. Both are decisions refusing to grant access in accordance with a request and are reviewable under s 54.

[941]

420. In the meantime, the tool in s 22 enhances the object of the FOI Act 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 ...".[315] If it were not available, those requesting access to a document that contained some exempt matter and some that is not would be denied access to the whole document. The same would be true of irrelevant matter. This comes about because a person's legally enforceable right to obtain access to a document in accordance with that legislation is, in the case of an agency, limited to a document of an agency, "other than an exempt document" be it of a document of an agency or an official document of a Minister.[316] It is a right that is, subject to the provisions of the FOI Act circumscribed by the request that is made under s 15. That request must provide "... such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it".[317] By deleting the exempt matter and the irrelevant matter, the document becomes a document, to which the person making the request has a right of access.

[942]

421. Two of the three documents said to be irrelevant to Mr Lobo's request are Documents 875 and 876 in Category 9. These documents comprise different snapshots of the same chain of emails. Mr Lobo has been given access to those parts of the information in those emails that relate to him, SICB or students who have attended SICB. That was the information he sought in the documents that he requested under s 15.[318] The remaining content of those documents does not. I am satisfied that they are irrelevant to the documents he requested and that the content has been properly deleted from the documents to which he has been given access under the FOI Act.

[943]

422. Document 859 is a printout from a computerised record and headed "Search Results". Having read the documents in the four volumes of documents in dispute, I am satisfied that the Department has properly deleted the names and identifying information of several people. Those people do not feature in any of the other documents and I am satisfied that there is no basis for considering that they bear any relationship to Mr Lobo or to SICB, the investigation or the students attending SICB.

[944]

423. In relation to some exemptions in relation to some documents for which exemption has been claimed in part, I have addressed the obligations that arise under s 22 in relation to the deletion of exempt matter. I have come to a conclusion on those documents. I have also considered the issue in relation to all of the documents for which partial exemption was claimed but, rather than setting out my reasons in relation to each, I decided to give them for all at once. I am satisfied that the decisions made as a consequence of s 22 are the correct decisions. I have made specific reference to instances in which non-exempt material has been interwoven and it would not be reasonably practicable to separate it from the exempt material. On other instances, I am satisfied that only that material for which exemption has been claimed has been properly deleted.

[945]

Exempt in respect of two line passage on folio 202 and first third of folio 201 and second half of folio 202. [323]

[946]

Exempt re person giving information[324]

[947]

Not exempt re names migration agents[325] or visa applicants[326]

[948]

Exempt re identifiers of those giving information[327]

[949]

Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[328]

[950]

Exempt respect of name or names and details, including contact details, of the informant or informants.[329]

[951]

Exempt re person giving information[330]

[952]

Not exempt re names migration agents[331] or visa applicants[332]

[953]

Exempt re identifiers of those giving information[333]

[954]

Adjourned re identifiers of migration agents/agencies under investigation[334]

[955]

Exempt re person giving information[336]

[956]

Not exempt re names migration agents[337] or visa applicants[338]

[957]

Exempt re identifiers of those giving information[339]

[958]

Adjourned re identifiers of migration agents/agencies under investigation[340]

[959]

Exempt re person giving information[342]

[960]

Not exempt re names migration agents[343] or visa applicants[344]

[961]

Exempt re identifiers of those giving information[345]

[962]

Adjourned re identifiers of migration agents/agencies under investigation[346]

[963]

Exempt re person giving information[348]

[964]

Not exempt re names migration agents[349] or visa applicants[350]

[965]

Exempt re identifiers of those giving information[351]

[966]

Adjourned re identifiers of migration agents/agencies under investigation[352]

[967]

Exempt re identifiers of those giving information[355]

[968]

Adjourned re identifiers of migration agents/agencies under investigation[356]

[969]

Exempt re person giving information[358]

[970]

Not exempt re names migration agents[359]

[971]

Exempt re person giving information[362]

[972]

Not exempt re names migration agents[363]

[973]

Exempt re identifiers of those giving information[364]

[974]

Adjourned re identifiers of migration agents/agencies under investigation[365]

[975]

Adjourned re identifiers of migration agents/agencies under investigation[366]

[976]

Adjourned re identifiers of migration agents/agencies under investigation[369]

[977]

Adjourned re identifiers of migration agents/agencies under investigation[370]

[978]

Adjourned re identifiers of visa applicants under investigation[374]

[979]

9-475 and 608, 209, 695, 725, 760, 898 and 900

[980]

Adjourned re identifiers of visa applicants under investigation[376]

[981]

Exempt re names identified in [361] of reasons[377]

[982]

Adjourned re identifiers of visa applicants under investigation[378]

[983]

Exempt re person giving information[385]

[984]

Not exempt re names migration agents[386]

[985]

Exempt re identifiers of those giving information[387]

[986]

Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[388]

[987]

Exempt re person giving information[391]

[988]

Not exempt re names migration agents[392]

[989]

Exempt re identifiers of those giving information[393]

[990]

Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[394]

[991]

Exempt re identifiers of those giving information[396]

[992]

Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[397]

[993]

Exempt re identifiers of those giving information[400]

[994]

Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[401]

[995]

Exempt re identifiers of those giving information[402]

[996]

Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[403]

[997]

Exempt re identifiers of those giving information[406]

[998]

Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[407]

[999]

Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[422]

[1000]

Adjourned re identifiers of migration agents/agencies under investigation[424]

[1001]

(1) names in lines 1-10, 21, 28, 29 and 35 on first page and lines 1, 5, 13, 22, 29 and 31 on second page;[438] and

[1002]

(2) penultimate paragraph and lines 7 and 8 on second page.[439]

[1003]

9-472, 482, 483, 485, 527, 547, 549, 570, 650, 692 and 693

[1004]

Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[450]

[1005]

18-25, 27, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 63, 69, 74 and 76

[1006]

Adjourned re identifiers of migration agents/agencies and visa applicants under investigation[453]

[1007]

19-401, 1054, 1055, 1056, 1057, 1058, 1059 and 1060

[1008]

I certify that the four hundred and twenty three paragraphs and ten attachments are a true copy of the reasons for the decision herein of

[1009]

Signed: ....................................................................

[1010]

[1] See Re Lobo and Department of Immigration and Citizenship [2010] AATA 583

[1011]

[2] For the reasons I gave in Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23 at [147]- [148]; 71-72 and which I adopt, it is not appropriate for a merits review tribunal to take the approach of an appellate court and simply examine "... a representative sample of the documents in question, chosen essentially at random, in order to gauge whether ... [the Department's] interpretation of the various provisions upon which it relied in ... [making its] claims for exemption revealed some legal error." (Jorgensen v Australian Securities and Investments Commission [2004] FCA 143; (2004) 208 ALR 73 at [56]- [60]; 85-86). The Tribunal's duty is to make a decision under s 43 of the Administrative Appeals Tribunal Act 1975 and to do so on the basis that it is, in the context of this case, the correct decision (Drake v Minister for Immigration and Ethnic Affairs ; at 589 per Bowen CJ and Smithers J). It cannot make the "" in this case as provides that it does not have the power to decide that access be given to a document in so far as it contains exempt matter. The Tribunal must carry out its duty. That means that it must work out the law that applies and how it has been interpreted by the courts, read each and every document and apply the law. This is a painstaking and time consuming task for the Tribunal and for those who read it but not one that can be avoided.

[1012]

[3] In doing so, I rely on the power conferred by s 43(5B) of the Administrative Appeals Tribunal Act 1975.

[1013]

[4] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 149

[1014]

[8] Exhibit EJP-2 to Exhibit 2; www.immi.gov.au/managing-australias-borders/compliance/staying-legally/dob-in-line.htm

[1015]

[10] Financial Management and Accountability Regulations 1997, r 16A(1). That regulation provides:

[1016]

"(1) The Minister for Home Affairs may issue guidelines (to be called Fraud Control Guidelines) about the control of fraud, dealing with fraud risk assessments, the preparation and implementation of fraud control plans and reporting of fraud."

[1017]

[12] Australian Government Investigation Standards

[1018]

[13] Commonwealth Fraud Control Guidelines at [10.11]

[1019]

[14] Commonwealth Fraud Control Guidelines at [10.11]

[1020]

[15] Commonwealth Fraud Control Guidelines at [10.11]

[1021]

[16] Commonwealth Fraud Control Guidelines at [10.11]

[1022]

[17] Migration Act, s 336E(1A)

[1023]

[18] Migration Act, s 336E(1)

[1024]

[19] Migration Act, s 336E(2)(ea)

[1025]

[20] Migration Act, ss 336E(2)(j) and 336FA

[1026]

[21] Migration Act, ss 336E(2)(k) and 336FC

[1027]

[22] Financial Management and Accountability Regulations 1997, r 16A(1). That regulation provides:

[1028]

[1029]

[23] Commonwealth Fraud Control Guidelines at [10.11]

[1030]

[24] Commonwealth Fraud Control Guidelines at [10.11]

[1031]

[25] A "non-citizen" means a person who is not an Australian citizen: Migration Act, s 5(1).

[1032]

[26] Migration Act, ss 29(1), (2) and (3)

[1033]

[27] Migration Act, s 45(1)

[1034]

[28] Migration Act, s 30(1)

[1035]

[29] Migration Act, s 30(2)

[1036]

[30] Migration Act, ss 31(1) and (2)

[1037]

[31] Migration Act, s 31(3)

[1038]

[32] In outline, these sections restrict those who may, and circumstances in which, immigration assistance may be given and immigration representations made.

[1039]

[33] Crimes Act, s 3C(1)

[1040]

[34] Category 24 documents are no longer in dispute between the parties.

[1041]

[35] Category 26 documents are no longer in dispute between the parties.

[1042]

[36] Category 11 documents are no longer in dispute between the parties.

[1043]

[37] Category 22 documents are no longer in dispute between the parties.

[1044]

[38] Category 14 documents are no longer in dispute between the parties.

[1045]

[39] Category 10 documents are no longer in dispute between the parties.

[1046]

[40] Category 4 documents are no longer in dispute between the parties.

[1047]

[41] Among other things and in summary, s 234(1)(a) prohibits a person from presenting a forged or false document to a person performing functions under the Migration Act in relation to a visa application. Section 234(1)(b) prohibits the making of a false or misleading statement in the same circumstances when the statement is, to the person's knowledge, false or misleading in a material particular.

[1048]

[42] Division 137 of the Criminal Code establishes offences relating to false or misleading information or documents.

[1049]

[43] "Subject to this section, a person who is not a registered migration agent must not give immigration assistance." In summary, "a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant ...": Migration Act, s 276(1)

[1050]

[44] "Subject to subsection (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance." That section does not prohibit a lawyer from asking for or receiving a fee for giving immigration legal assistance or for another asking for or receiving a fee for a lawyer's giving immigration legal assistance. "Immigration legal assistance" is given by a lawyer within the meaning of s 277.

[1051]

[45] "Subject to this section, a person who is not a registered migration agent must not advertise that he or she gives immigration assistance." Exceptions are made in relation to Parliamentarians, lawyers and officials acting as officials: Migration Act, ss 284(2), (3) and (4).

[1052]

[46] At the time the brief of evidence was given, s 300(2) specified an offence where "A person uses an instrument which is, and which the person knows to be, false, with the intention of inducing another person: (a) to accept the instrument as genuine, and (b) because of that acceptance, to do or not do some act to that other person's, prejudice, is liable to imprisonment for 10 years."

[1053]

[47] "A person who makes a false instrument, with the intention that he or she, or another person, will use it to induce another person: (a) to accept the instrument as genuine, and (b) because of that acceptance, to do or not do some act to that other person's, or to another person's, prejudice, is liable to imprisonment for 10 years."

[1054]

[48] "(1) A person is guilty of an offence if: (a) the person intentionally provides, purports to provide or offers to provide a course to overseas students; and (b) the course is not genuine; and (c) in engaging in the conduct mentioned in paragraph (a), the person intends to facilitate, or is reckless as to facilitating, a breach of one or more conditions of any of the students' visas (whether or not a breach in fact occurs).

[1055]

Maximum penalty: Imprisonment for 2 years, 100 penalty units or both.

[1056]

(2) The fault element for paragraph (1)(b) is knowledge.

[1057]

(3) For the purposes of subsection (1), a course is not genuine if it is provided without serious regard to reasonable standards of education or training (including standards relating to attendance and participation by students) or if the course is a sham."

[1058]

[49] Criminal Procedure Act 1986 (NSW), s 175

[1059]

[51] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1060]

[52] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1061]

[53] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1062]

[54] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1063]

[55] (1986) 64 ALR 97

[1064]

[56] (1986) 64 ALR 97 at 106

[1065]

[57] (1986) 64 ALR 97 at 112

[1066]

[58] [1992] FCA 241; (1992) 108 ALR 163; 36 FCR 111

[1067]

[59] [1992] FCA 241; (1992) 108 ALR 163; 36 FCR 111 at 176; 123

[1068]

[60] (1976) 14 SASR 303; 27 FLR 400

[1069]

[61] (1976) 14 SASR 303; 27 FLR 400 at 312-313; 410

[1070]

[62] (1979) 27 ALR 367; Bowen CJ, Evatt and Deane JJ

[1071]

[64] (1985) 6 FCR 1

[1072]

[65] (1985) 6 FCR 1 at 49

[1073]

[66] [1986] HCA 29; (1986) 161 CLR 10; Gibbs CJ, Mason, Wilson and Deane JJ, Brennan J dissenting

[1074]

[67] [1986] HCA 29; (1986) 161 CLR 10 at 14-15

[1075]

[68] [1986] HCA 29; (1986) 161 CLR 10 at 21-22

[1076]

[69] [1992] FCA 369; (1992) 37 FCR 363; 109 ALR 213

[1077]

[70] [1992] FCA 369; (1992) 37 FCR 363; 109 ALR 213 at 371; 222

[1078]

[71] [1989] VicRp 73; [1989] VR 836, Young CJ, Marks and Teague JJ

[1079]

[72] [1989] VicRp 73; [1989] VR 836 at 842

[1080]

[73] [2008] VSCA 265; (2008) 21 VR 526; Maxwell P, Nettle and Weinberg JJA

[1081]

[74] [2008] VSCA 265; (2008) 21 VR 526 at [35]

[1082]

[75] "... 8 (relations) ...": Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1083]

[76] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1084]

[77] Acts Interpretation Act 1901, s 17(a)

[1085]

[78] [1974] HCA 20; (1974) 131 CLR 477

[1086]

[79] [1936] HCA 52; (1936) 55 CLR 608 at 643-644

[1087]

[80] [1974] HCA 20; (1974) 131 CLR 477 at 498

[1088]

[81] [1988] HCA 63; (1988) 166 CLR 79; Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ

[1089]

[82] [1988] HCA 63; (1988) 166 CLR 79 at 110-111

[1090]

[83] [1974] HCA 20; (1974) 131 CLR 477 at 505

[1091]

[84] It may, for example, establish a corporate authority to achieve its purpose rather than do so by means of executive action through a Minister of the Crown: Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79 at 94-94 per Mason CJ, Deane and Gaudron JJ

[1092]

[85] [1987] FCA 148; (1987) 73 ALR 607; 13 ALD 195, Woodward, Wilcox and Burchett JJ. This is the appeal from the Tribunal's decision in Re State of Queensland and Australian National Parks and Wildlife Service [1986] AATA 224; (1986) 13 ALD 158; 5 AAR 328

[1093]

[86] [1987] FCA 148; (1987) 73 ALR 607; 13 ALD 195 at 616; 204

[1094]

[87] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1095]

[88] Smith v Brown (1871) LR 6 QB 729 at 731-733 per Cockburn CJ

[1096]

[89] Haigh v Royal Mail Steam Packet Co 52 LJQB 395 at 640

[1097]

[90] Kemp v Sober [1851] EngR 487; 1 Sim. N.S. 517; 61 ER 200 at 519; 2 per Cranworth VC

[1098]

[91] Kemp v Sober [1851] EngR 487; 1 Sim. N.S. 517; 61 ER 200 at 519; 2 per Cranworth VC

[1099]

[92] Lord Manners v Johnson [1875] 1 Ch D 673 per Hall VC at 681

[1100]

[93] Trent-Stoughton v Barbados Water Supply Company Limited [1893] AC 502 at 504 per Lord Halsbury

[1101]

[94] (1985) 7 ALD 731; 3 AAR 396

[1102]

[95] (1985) 7 ALD 731 at 742

[1103]

[96] [1986] AATA 224; (1986) 13 ALD 158; 5 AAR 328

[1104]

[97] While ss 33(1)(b) and 33A(1)(b) are similar, the exemption in s 33A(1)(b) is subject to a further qualification that is not applicable to that in s 33(1)(b). That qualification is that s 33A "... does not apply in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest": s 33A(1)(5).

[1105]

[98] [1986] AATA 224; (1986) 13 ALD 158; 5 AAR 328 at [31]; 161; 336

[1106]

[100] [1987] AATA 453; (1987) 14 ALD 292 at [18]

[1107]

[101] [1987] AATA 545; (1987) 14 ALD 296 at [20] ( relevant passage not reported in ALD)

[1108]

[102] [1988] AATA 110; (1988) 15 ALD 20 at 26

[1109]

[103] [1992] AATA 225; (1992) 28 ALD 95 at 114

[1110]

[105] While ss 33(1)(b) and 33A(1)(b) are similar, the exemption in s 33A(1)(b) is subject to a further qualification that is not applicable to that in s 33(1)(b). That qualification is that s 33A "... does not apply in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest": s 33A(5).

[1111]

[107] FOI Act, s 37(3). Section 37(2A) clarifies the application of s 37(1)(b) but is not relevant in this case. It provides:

[1112]

"For the purposes of paragraph (1)(b), a person is taken to be a confidential source of information in relation to the enforcement or administration of the law if the person is receiving, or has received, protection under a program conducted under the auspices of the Australian Federal Police, or the police force of a State or Territory, for the protection of:

[1113]

(b) people who, because of their relationship to, or association with, a witness need, or may need, such protection; or

[1114]

(c) any other people who, for any other reason, need or may need, such protection."

[1115]

[108] (1986) 65 ALR 645

[1116]

[109] [1997] FCA 1581; (1997) 49 ALD 380

[1117]

[110] Heerey J did find that that Tribunal had made an error of law in the test it applied but did not comment adversely on the categories of information to which it had regard.

[1118]

[111] [1988] AATA 110; (1988) 15 ALD 20

[1119]

[112] [1988] AATA 110; (1988) 15 ALD 20 at 27

[1120]

[113] [1997] AATA 361; (1997) 47 ALD 427

[1121]

[114] Re Nitas and Minister for Immigration and Multicultural Affairs [2001] AATA 392 at [20]

[1122]

[115] [1997] AATA 361; (1997) 47 ALD 427 at 430

[1123]

[116] [2006] AATA 333; (2006) 62 ATR 1175

[1124]

[117] [2006] AATA 333; (2006) 62 ATR 1175 at 1185; [30]

[1125]

[118] [1985] FCA 370; (1985) 8 FCR 85; 62 ALR 421; 9 ALD 35; Forster, Keely and Davies JJ

[1126]

[119] [1985] FCA 370; (1985) 8 FCR 85; 62 ALR 421; 9 ALD 35 at [11]; 88-89; 425; 38-39 and see also Keely J at [4]; 90; 426; 40

[1127]

[120] HP Mercantile Pty Ltd v Federal Commissioner of Taxation [2005] FCAFC 126; (2005) 143 FCR 553 at 563 [35] per Hill J.

[1128]

[121] [2005] FCAFC 126; (2005) 143 FCR 553 at 563 [35] per Hill J

[1129]

[122] Travelex Ltd v Commissioner of Taxation of the Commonwealth of Australia [2010] HCA 33; (2010) 241 CLR 510; 270 ALR 253; 84 ALJR 683; 76 ATR 329; [2010] ATC 20-214 at at [25]; 519- 520; 259; 788; 377; 11,540 ; French CJ, Hayne and Heydon JJ, Crennan and Bell JJ dissenting

[1130]

[123] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1131]

[125] [1985] FCA 370; (1985) 8 FCR 85; 62 ALR 421; 9 ALD 35; Forster, Keely and Davies JJ

[1132]

[126] [1985] FCA 370; (1985) 8 FCR 85; 62 ALR 421; 9 ALD 35 at 88; 424; 38

[1133]

[127] [1985] FCA 370; (1985) 8 FCR 85; 62 ALR 421; 9 ALD 35 at 88; 424; 38

[1134]

[128] [1997] FCA 1581; (1997) 49 ALD 380

[1135]

[129] [2010] FCA 1442; (2010) 191 FCR 573; 276 ALR 712; 120 ALD 439

[1136]

[130] [2010] FCA 1442; ; (2010) 191 FCR 573; 276 ALR 712; 120 ALD 439 at [21]- [23]; 578-579; 717-718; 444

[1137]

[131] [2010] FCA 1442; ; (2010) 191 FCR 573; 276 ALR 712; 120 ALD 439 at [63]- [65]; 587; 726; 452

[1138]

[132] [2010] FCA 1442; ; (2010) 191 FCR 573; 276 ALR 712; 120 ALD 439 at [66]; 587; 726; 452

[1139]

[133] [2010] FCA 1442; ; (2010) 191 FCR 573; 276 ALR 712; 120 ALD 439 at [68]; 587; 726; 452-453

[1140]

[134] [1984] AATA 249; (1984) 54 ALR 313; 6 ALD 112; 1 AAR 419; 15 ATR 787

[1141]

[135] [1984] AATA 249; (1984) 54 ALR 313; 6 ALD 112; 1 AAR 419; 15 ATR 787 at 332; 129-130; 437; 803-804

[1142]

[136] Re Altman and Family Court (1992) 27 ALD 369; (1992) 15 AAR 236 at 376-377; 244-245

[1143]

[137] [1994] VicRp 2; [1994] 1 VR 41; Brooking, Nathan and Ashley JJ

[1144]

[139] Macquarie Dictionary, 3rd edition, 2001, The Macquarie Library Pty Ltd

[1145]

[140] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1146]

[141] (1987) 14 FCR 489; 77 ALR 435

[1147]

[142] (1987) 14 FCR 489; 77 ALR 435 at 499-500; 446-447

[1148]

[144] [1996] NSWSC 524; Mahoney ACJ, Sully J, Barr J. Mahoney ACJ came to a similar conclusion but relying on the word "execution", rather than "enforcement" in the offence: "The term 'execution' is in my opinion not a word of narrow meaning. As used in the Crimes Act 1914 s 86(1)(b), it comprehends the way in which the legislation is, according to its terms, being carried out or intended to be carried out. Ordinarily, an Act will - at least it may - contemplate that it will or may be carried into effect in one or more of a number of ways. The present case was concerned with the grant of entry permits under the Migration Act. It contemplated that such permits would be applied for and, in an appropriate case, would be granted. But applications could be made in a number of ways and permits could be granted following a number of different procedures. Thus, application might be directed directly to the Minister and to him/her alone and the grant of an entry permit might be restricted to the Minister. In the present case, what was chosen as the procedure to carry into effect this part of the Act was the making of applications for entry permits, the examination of them by departmental officers, and the grant or refusal of them accordingly. The term 'execution' was intended to comprehend that procedure. In this regard, it was the purpose of s 86(1)(b) of the Crimes Act 1914 to proscribe conspiracies to prevent the Migration Act being carried out in that chosen way. The Migration Act made provision for the way in which application should be made and should be dealt with. A conspiracy to prevent the Act being executed, in the sense of being carried into effect, in the manner chosen would in my opinion be a conspiracy within s 86(1)(b)."

[1149]

[145] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1150]

[146] Macquarie Dictionary, 3rd edition, 2001, The Macquarie Library Pty Ltd

[1151]

[147] [2008] NSWCCA 215; (2008) 71 NSWLR 31; 252 ALR 375 at [97]; 56-57; 398; Bell JA, Hulme and Latham JJ

[1152]

[148] Judgment in R v Einfeld, unreported, dated 19 May 2008 at [142] and reproduced in R v Einfeld [2008] NSWCCA 215; (2008) 71 NSWLR 31; 252 ALR 375 at [56]; 45; 387

[1153]

[149] [1991] VicRp 72; [1991] 2 VR 322; Young CJ, O'Bryan and Vincent JJ

[1154]

[150] Section 31(1) provides "Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to (a) prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance ...". It was preceded by the heading "Law enforcement documents".

[1155]

[151] [1991] VicRp 72; [1991] 2 VR 322 at 328

[1156]

[152] [1991] VicRp 72; [1991] 2 VR 322 at 323

[1157]

[153] [1991] VicRp 72; [1991] 2 VR 322 at 324

[1158]

[154] [1983] FCA 303; (1983) 72 FLR 140; 50 ALR 665

[1159]

[155] [1983] FCA 303; (1983) 72 FLR 140; 50 ALR 665 at 145; 670

[1160]

[156] [1983] FCA 303; (1983) 72 FLR 140; 50 ALR 665 at 146; 671

[1161]

[157] [1994] VicRp 2; [1994] 1 VR 41; Brooking, Nathan and Ashley JJ

[1162]

[158] [1994] VicRp 2; [1994] 1 VR 41 at 53

[1163]

[159] [1994] VicRp 2; [1994] 1 VR 41 at 55-56

[1164]

[160] [1994] VicRp 2; [1994] 1 VR 41 at 59

[1165]

[161] [1994] VicRp 2; [1994] 1 VR 41 at 59

[1166]

[162] [1994] VicRp 2; [1994] 1 VR 41 at 63-64

[1167]

[163] [1992] HCA 25; (1992) 174 CLR 268

[1168]

[164] [1992] HCA 25; (1992) 174 CLR 268 at 276-277

[1169]

[165] [1992] HCA 25; (1992) 174 CLR 268 at 283

[1170]

[166] [1992] HCA 25; (1992) 174 CLR 268 at 280

[1171]

[167] [1992] HCA 25; (1992) 174 CLR 268 at 303-304

[1172]

[168] Harper v Costigan [1983] FCA 303; (1983) 72 FLR 140; 50 ALR 665 at 145; 670

[1173]

[169] See CSR Limited v CIGNA Insurance Australia Limited [1997] HCA 33; (1997) 189 CLR 345; 146 ALR 402; 71 ALJR 1143; Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ; Brennan CJ dissenting at 391-392; 433; 1165-1166 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ

[1174]

[170] [1999] HCA 294; (1999) 198 CLR 380; 162 ALR 294; 73 ALJR 657; Gaudron, McHugh, Gummow, Kirby and Callinan JJ

[1175]

[171] [1987] HCA 23; (1987) 162 CLR 612; 71 ALR 457

[1176]

[172] [1999] HCA 18; 198 CLR 380; 162 ALR 294; 73 ALJR 657 at [25]- [26]; 393; 302; 663 per Gaudron, McHugh, Gummow and Callinan JJ

[1177]

[173] This conclusion does not mean that documents, whose disclosure would, or would reasonably be expected, to have an adverse effect on an agency's proper administration in a more general sense may not be exempt under the FOI Act. If an agency were to come to the view that disclosure under the FOI Act "would, or could reasonably he expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency", it could consider claiming exemption under s 40(1)(d). Over the years, the authorities have illustrated the application of this provision in exempting documents whose disclosure would, or could reasonably be expected to, have a substantial adverse effect on the way in which an agency carries out the functions that have been conferred upon it by statute.

[1178]

Those illustrations do not represent the scope of s 40(1)(d) in its entirety but what they do illustrate is that, as Weinberg J said in Jorgensen v Australian Securities and Investments Commission [2004] FCA 143; (2004) 208 ALR 73) (Jorgensen), the reference to the "operations of an agency" in

[1179]

"... limited to matters relating to the internal administration of the agency, such as a consultant's report upon its operations, but extended to the way in which the agency discharged or performed any of its functions. ..." ([2004] FCA 143; [2004] FCA 143; (2004) 208 ALR 73; at [73]; 88)

[1180]

Mr Jorgensen had asked the Australian Securities and Investments Commission (ASIC) for access to a report it had prepared after he had complained about the way in which its officers had conducted an investigation into whether he had contravened the Corporations Law. He also asked for access to all material relating to the investigation. Weinberg J held that the Tribunal had made no error in affirming ASIC's claim to exemption on this ground.

[1181]

His Honour referred to the earlier case of Searle Australia Pty Ltd v Public Interest Advocacy Centre ((1992) [1992] FCA 241; 36 FCR 111; 36 FLR 111; 108 ALR 163; Davies, Wilcox and Einfeld JJ). The Public Interest Advocacy Centre had asked the Department of Health for access to the names of external evaluators who had reported to the Department on applications made by Searle Australia Pty Ltd under the Therapeutic Goods Act 1966. The issue before the Full Court of the Federal Court was whether disclosure under the FOI Act would have a substantial adverse effect on the operations of the Department of Health. It held that the Tribunal had been correct to reject a submission that s 40(1)(d):

[1182]

"... should be read as limited to matters related to the internal administration of the agency, such as a report by an outside agency or consultant on the operations of the agency. ... The Tribunal said:

[1183]

'41. As was stated in Re James and Australian National University174 (1984) 2 AAR 327 at 340 the expression "the conduct of the operations of an agency" extends "to the way in which an agency discharges or performs any of its functions".'

[1184]

... There is no warrant for importing into the words of the section a limitation along the lines contended for." ((1992) [1992] FCA 241; 36 FCR 111; 36 FLR 111; 108 ALR 163)

[1185]

[175] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1186]

[177] [1991] VicRp 72; [1991] 2 VR 322 at 329

[1187]

[179] Affidavit of Ms Pettit, Exhibit 2 at [96]

[1188]

[180] See [205]-[209] of Attachment E above

[1189]

[181] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1190]

[182] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1191]

[183] Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press

[1192]

[184] Macquarie Dictionary, 3rd edition, 2001, The Macquarie Library Pty Ltd

[1193]

[185] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1194]

[186] The ordinary meanings of the word "effective", which is the root of the noun "effectiveness", include: "... having the power to produce, or producing, a desired result ...": Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers.

[1195]

[187] (1984) 6 ALN N176

[1196]

[188] (1984) 6 ALN N176 at N176

[1197]

[189] [1994] AATA 149; (1994) 33 ALD 718

[1198]

[190] [1994] AATA 149; (1994) 33 ALD 718 at [19]; 723

[1199]

[192] Exhibit 3 at [24(c)] and [34(b)]

[1200]

[193] Latter v Council of the Shire of Muswellbrook [1936] HCA 70; (193-6) [1936] HCA 70; 56 CLR 422; Latham CJ, Rich and Dixon JJ at 434-435 per Latham CJ

[1201]

[194] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1202]

[195] [1979] FCA 85; (1979) 27 ALR 367; 42 FLR 331

[1203]

[198] [1983] FCA 242; (1983) 50 ALR 551; 5 ALD 545

[1204]

[199] Section 40(b) then provided that a document would be exempt if its disclosure under the FOI Act would be contrary to the public interest by reason that:

[1205]

"(b) the document contains information the disclosure of which would, or could reasonably be expected to, have a substantial adverse effect on the supervision or review of the operations of an agency for the purpose of ensuring the proper and efficient conduct of those operations; ...".

[1206]

[200] [1983] FCA 242; (1983) 50 ALR 551; 5 ALD 545 at 564; 557. Beaumont J considered s 40 as it existed before its repeal and re-enactment in 1983. The particular words which he considered were not varied and this passage of his judgment remains relevant.

[1207]

[201] (1986) 11 ALN N184

[1208]

[202] (1986) 11 ALN N184 at N185

[1209]

[203] Re Thies and Department of Aviation (1986) 9 ALD 454 at 463 (Deputy President Thompson, Senior Member Hallowes and Mr Trinick, Member)

[1210]

[204] (1994) 34 ALD 655

[1211]

[205] (1994) 34 ALD 655 at 662

[1212]

[206] The New Shorter Oxford English Dictionary, 3rd edition, 1993

[1213]

[207] (1992) 36FCR 111; [1992] FCA 241; 108 ALR 163; 16 AAR 28

[1214]

[209] (1984) 2 AAR 327; 6 ALD 687 at 340; 699 cited with approval at [1992] FCA 241; (1992) 108 ALR 163; 16 AAR 28 at 168; 32

[1215]

[210] (1984) 2 AAR 327; 6 ALD 687 at 340-341; 699.

[1216]

[211] See [205]-[209] of Attachment E above

[1217]

[212] [1985] AATA 226; (1985) 8 ALD 219, Beaumont J, Senior Member McMahon (as he then was) and Dr Renouf, Member

[1218]

[213] [1985] AATA 226; (1985) 8 ALD 219 at 222

[1219]

[214] (1978) 142 CLR 1; 21 ALR 505; 53 ALJR

[1220]

[215] [1973] AC 388 at 400

[1221]

[216] [1968] UKHL 2; [1968] AC 910

[1222]

[217] (1978) 142 CLR 1; 21 ALR 505; 53 ALJR 11 at 62; 545; 30-31 per Stephen J

[1223]

[218] [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516

[1224]

[219] [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at [5]; 428; 189; 518

[1225]

[220] [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at [19]; 433; 193; 522

[1226]

[221] [1989] HCA 61; (1989) 168 CLR 210 at 216

[1227]

[222] Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 per Dixon J

[1228]

[223] [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at [55]; 443-444; 202; 531

[1229]

[224] [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at [130]; 468; 221-222; 550-551

[1230]

[225] "The release of the material would tend to be misleading or confusing in view of its provisional nature, as it may be taken wrongly to represent a final position (which it was not intended to do) and ultimately may not have been used or have been overtaken by subsequent events or further drafts." [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 450; 208; 537 [80] per Callinan and Heydon JJ

[1231]

[226] [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at [120]- [128]; 466-467; 220-221; 549-550

[1232]

[227] [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at [116]- [117]; 465; 219; 548

[1233]

[228] [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at [70]; 448; 206; 535

[1234]

[229] (1985) 7 ALD 626

[1235]

[230] (1985) 7 ALD 626 at 634 Given the position expressly taken in McKinnon that the exercise does not permit the Tribunal to engage in a balancing exercise, it would seem that this aspect of Davies J's reasons for decision relating to any benefit from disclosure might have to be treated cautiously.

[1236]

[231] [2007] AATA 1969 at [108]

[1237]

[232] (1985) 7 ALD 626 at 636

[1238]

[233] [1987] FCA 148; (1987) 73 ALR 607; 13 ALD 195

[1239]

[234] [1987] FCA 148; (1987) 73 ALR 60; 13 ALD 195 at 616-617; 204-205

[1240]

[235] [1987] FCA 148; (1987) 73 ALR 607; 13 ALD 195 at 627; 214

[1241]

[238] Privacy Act, s 14, IPP11.1(e)

[1242]

[239] Migration Act, s 336A at paragraph (a) of definition

[1243]

[240] See, for example, those prescribed in s 40(3A)

[1244]

[241] Migration Act, s 336E(2)(ea)

[1245]

[1246]

[246] [2010] AATA 244; (2008) 51 AAR 308 at [64]- [67]; 333-335

[1247]

[247] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1248]

[248] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1249]

[249] [2002] FCA 55

[1250]

[250] [2002] FCA 55 at [27]

[1251]

[251] Jorgensen v Australian Securities and Investment Commission [2004] FCA 143; (2004) 208 ALR 73 at [43]; 83 per Weinberg J

[1252]

[252] [2010] AATA 244; (2008) 51 AAR 308 at [67]; 335

[1253]

[253] [2005] VCAT 2592; 24 VAR 23; Deputy President Coghlan

[1254]

[254] [2005] VCAT 2592; 24 VAR 23 at [24]; 30

[1255]

[255] [2005] VCAT 2592; 24 VAR 23 at [35]- [36]; 31-32

[1256]

[256] [1989] VicRp 9; [1989] VR 78; Gobbo J

[1257]

[257] [1989] VicRp 9; [1989] VR 78 at 80

[1258]

[258] [1989] VicRp 9; [1989] VR 78 at 92-94

[1259]

[259] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[1260]

[261] [1989] FCA 434; Sheppard, Beaumont and Pincus JJ

[1261]

[262] [1984] AATA 437; (1984) 6 ALN N257

[1262]

[263] [1984] AATA 437; (1984) 6 ALN N257 at [51]- [52]; N259

[1263]

[264] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1

[1264]

[265] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at [35]; 438; 121; 270; 9

[1265]

[266] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at [35]; 438; 121; 270; 9

[1266]

[267] [2011] AATA 566; Deputy President Constance and Senior Member Webb

[1267]

[268] [2011] AATA 566 at [26]

[1268]

[269] [2011] AATA 566 at [33]

[1269]

[270] [2011] AATA 566 at [38]

[1270]

[271] Examples are found in ss 36(1)(b) and 40(2)

[1271]

[273] I have applied the ejusdem generis rule of statutory interpretation. See Statutory Interpretation in Australia, 6th edition, 2006, LexisNexis, Australia at [4.21]-[4.26]

[1272]

[275] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at 440; 122-123; 272; 10-11

[1273]

[276] [2008] VSCA 218, Maxwell P, Weinberg JA and Pagone AJA

[1274]

[277] [2008] VSCA 218 at [19] per Maxwell P

[1275]

[278] [2008] VSCA 218 at [23] per Maxwell P

[1276]

[279] [2008] VSCA 218 at [28]

[1277]

[280] See [2008] VSCA 218 at [83]:

[1278]

" It must be remembered that all this had to be considered in the context of a complainant who had apparently been willing to go on television to voice her complaints. It is appropriate to note here the observations of the Full Court in Colakovski in which, Lockhart J (with whom Jenkinson and Heerey JJ relevantly agreed), in considering an equivalent provision in the Commonwealth freedom of information legislation, said:

[1279]

'For example, a document may contain statements about a person's private life, in the sense of his personal life, which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person's "personal affairs". Such a document would therefore prima facie answer the description of one which relates to the 'personal affairs' of a person within s 41(1). Whether any disclosure of the information would be an "unreasonable disclosure" within s 41(1) is a different question. If something is notorious about a person and recorded in a document, this may provide in a given case cogent evidence to justify the finding that its disclosure would not represent an "unreasonable disclosure"..."... [(1991) 29 FCR 429 at 436] (Emphasis added.)'"

[1280]

[281] [2010] AATA 244; (2010) 51 AAR 308 at [104]- [109]; 346-347

[1281]

[283] As none of the subjects related to Mr Lobo, s 41(2) did not come into consideration.

[1282]

[284] [2010] AATA 244; (2010) 51 AAR 308 at [120]- [127]

[1283]

[285] [1987] FCA 266; (1987) 14 FCR 434; 13 ALD 254; Jenkinson and Sweeney JJ, Gummow J dissenting

[1284]

[286] [1987] FCA 266; (1987) 14 FCR 434; 74 ALR 428; 13 ALD 254 at [14];at 443; 262-263; 437; 262-263

[1285]

[287] [1987] FCA 266; (1987) 14 FCR 434; 74 ALR 428; 13 ALD 254 at [12]; 442-443; 437; 262

[1286]

[288] [2010] AATA 244; (2010) 51 AAR 308

[1287]

[289] [2010] AATA 244; (2010) 51 AAR 308 at [128]- [166]

[1288]

[290] [1980] HCA 44; (1981) 55 ALJR 45

[1289]

[291] [1980] HCA 44; (1980) 147 CLR 39; 32 ALR 485; 55 ALJR 45 at [25]- [28]; 51-52; 492-493; 49

[1290]

[293] [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391; 69 ALJR 404

[1291]

[294] [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391; 69 ALJR 404 (footnotes omitted)

[1292]

[295] [1997] AATA 192; Senior Member Bayne

[1293]

[296] 297 [1997] AATA 192 at [27]- [35]

[1294]

[298] [1989] FCA 384; (1990) 22 FCR 73; 95 ALR 87

[1295]

[299] [1989] FCA 384; (1990) 22 FCR 73; 95 ALR 87 at 112; 126

[1296]

[300] Smith Kline & French Laboratories (Aust) Ltd and Ors v Secretary, Department of Community Services and Health and Another [1991] FCA 150; (1991) 28 FCR 291at [51]; 304

[1297]

[301] [1994] QICmr 1; (1994) 1 QAR 279; FN Albietz, Information Commissioner

[1298]

[302] [1994] QICmr 1; (1994) 1 QAR 279 at [119]; 330

[1299]

[303] [1994] QICmr 1; (1994) 1 QAR 279 at [123]- [124]; 331-332

[1300]

[304] [1994] QICmr 1; (1994) 1 QAR 279 at [119]- [133]; 330-335

[1301]

[305] [1987] FCA 266; (1987) 74 ALR 428 at 451

[1302]

[306] Meagher R, Heydon D and Leeming M, Equity Doctrines & Remedies, 4th edition, Butterworths, 2002

[1303]

Equity Doctrines & Remedies, R Meagher, D Heydon and M Leeming, 4th edition, 2002, Butterworths, Australia (Meagher, Heydon and Leeming)

[1304]

[307] Meagher, Heydon and Leeming at [3-125]

[1305]

[308] [1913] HCA 50; (1913) 17 CLR 90; 19 ALR 537; Barton ACJ, Isaacs, Powers and Rich JJ

[1306]

[309] [1913] HCA 50; (1913) 17 CLR 90; 19 ALR 537 at 123-124; 550

[1307]

[310] This is quite apart from the informal processes of consultation that may occur. There is no question that, in relation to some exemptions and in some circumstances at least, an agency or Minister will wish to consult with those who have supplied information to it. Whether it does so or not will be determined by whether the document concerned clearly falls within or without an exemption or whether the application of the exemption is unclear. Some exemptions will, for all practical purposes, require the agency to whom the request is directed to consult with another. Cabinet documents of the sort described in s 34 may provide an example of that. Others will require an agency or Minister to look within to determine whether or not a document is exempt. Section 40 is an example of that.

[1308]

[312] FOI Act, (a) of definition in s 4(1)

[1309]

[313] FOI Act, (b) of definition in s 4(1)

[1310]

[314] FOI Act, (c) of definition in s 4(1)

[1311]

[319] Document's sub-category noted in bold numbering

Lobo and Department of Immigration and Citizenship [2011] AATA 705 (11 October 2011)

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Deep Dive

Cited legislation

What happened

Why the court decided this way

Before and after state of the law

Key passages with plain-English translation

What fact patterns trigger this precedent

How later courts have treated it

Still-open questions

Judgment (1311 paragraphs)

Lobo and Department of Immigration and Citizenship [2011] AATA 705 (11 October 2011)

Legislation Cited (22)

Cases Cited (55)

AI Analysis