Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] FCA 1375 | Case summary

1 This is an application for review of a reviewable decision made under the Freedom of Information Act 1989 ("FOI Act") refusing the applicant access to documents forming part of a "Special Branch" file of the first respondent relating to her which is almost 20 years old. At about that time, the applicant was involved in steel works union activity in New South Wales. Later she was involved in other political activities that led to her coming to the attention of the former Special Branch of the NSW Police Service. 2 On 24 August 1999 the applicant made an application to the first respondent agency to be provided with a copy of her Special Branch file. By letter dated 18 November 1999, the first respondent indicated to the plaintiff that it had located documents concerning the applicant in the records of the former Special Branch and that most of the documents, with one exception, would be released to her. There is a one page document containing entries next to a number of dates in the early 1980s. In answer to the FOI application, the first respondent copied the document and removed the text from the copy provided to the applicant. Entries relating to 14 September 1983 and 1 February 1984 were removed. These three paragraphs comprise the whole of the disputed material in these proceedings. 3 In the original FOI decision, the first respondent's FOI officer relied upon the following exemptions in Schedule 1 of the FOI Act: clause 4(1)(b) & (e) (documents affecting law enforcement and public safety); clause 6 (documents affecting personal affairs), and clause 13(a) & (b) (documents containing confidential material). In the reasons for decision, the officer stated that to release the exempted material: "… would disclose information or material that was obtained in circumstances of confidence and in respect of which I have formed the view that its release could prejudice the future ability of this Service to obtain information from members of the public and external organisations." 4 In making that decision, some reliance was also placed on clause 4(3)(b) of the FOI Act, which provides: "Documents affecting law enforcement and public safety (3) A document is an exempt document if it is a document that has been created by: (a) the Information and Intelligence Centre of the Police Service or the former State Intelligence Group, or (b) the Protective Security Group of the Police Service, the former Special Branch of the Police Service or the former Bureau of Criminal Intelligence." 5 It is not contested in these proceedings, and in any event, the evidence plainly establishes, that the disputed document is a document that has been created by the former Special Branch of the Police Service within the meaning of this clause. Accordingly, it is an exempt document. 6 Upon receiving a request for an internal review of the determination, a second FOI determination was made by an officer of the first respondent on 21 December 1999. That decision, in effect, relied upon the reasoning processes of the first decision maker and found the decision and the reasoning were appropriate and "in keeping with the spirit of the Premier's press release of 9 March 1999". 7 The applicant's FOI application followed a decision by the Premier of New South Wales, the second respondent, to permit the release of dossiers held by the former Special Branch to the persons to whom they relate notwithstanding the general exemption from release in clause 4(3)(b) of Schedule 1 of the FOI Act. 8 In these proceedings, the reviewable decision is the second decision of the first respondent dated 21 December 1999. A hearing was conducted on 26 July 2000. The first respondent was represented by a legal officer of the agency and written submissions were filed on 25 July 2000 on behalf of the second respondent by a solicitor of the New South Wales Crown Solicitor's office. Unfortunately, the second respondent chose not to appear at the hearing and was content to rely on the written submissions which primarily addressed legal issues. The applicant was unrepresented at the hearing. 9 At the hearing, the respondent relied upon two affidavits of an inspector of the respondent and the original FOI decision maker, Mr Charles Langburne. The affidavit sworn 26 May 2000 was read and had been served on the applicant. It set out the history of the application and attached the primary documents comprising the original FOI application and the FOI decisions I have discussed above. The affidavit makes clear that the expunged material from the disputed document related to information received by the former Special Branch from an unidentified "external agency" and that there was a continuing relationship between the respondent and that agency in that the respondent expected to receive further confidential information from the agency in the future (presumably in respect of matters other than anything relating to the applicant). 10 The second affidavit of Mr Langburne was sworn 12 July 2000 and was not served on the applicant. On the first respondent's application, I admitted it into evidence as a confidential affidavit and made appropriate orders. It identifies the external agency concerned and a letter from that agency is annexed. In that letter, the agency identifies the disputed document, recognises the expunged material, explains the nature of the relationship between it and the first respondent and expresses its concern regarding the possible release of the information in part because that continuing relationship might be adversely affected and also in terms and for reasons which I am not permitted to disclose in these reasons as they would disclose the identity of the agency and partly reveal the very nature of the information sought to be held exempt in these proceedings. In any event, as is already apparent, it is not necessary for me to rely upon the confidential affidavit of Mr Langburn in order for me to determine that the document is exempt under the Act. 11 At the hearing, the first respondent withdrew any reliance on the previously claimed exemptions under the FOI Act and ultimately relied only upon clause 4(3)(b) of Schedule 1 of the Act. This may be in part due to the fact that upon commencement of these proceedings in this tribunal, the first respondent released further previously disputed material to the applicant pursuant to her FOI application. A copy of the unexpurgated Special Branch files (numbered 42/72 and 81/71) was tendered by the first respondent and was marked as a confidential exhibit. I note that only the running sheet of the Special Branch which has the entries I described in that exhibit is confidential. The remainder was given to the FOI applicant. 12 The applicant relied on her statement dated 26 June 2000 (exhibit A). She argues that having regard to the Premier's decision to release all the material from the former Special Branch it would be an "important goodwill gesture" for the government to permit release of the entire file without any omissions or deletions. She said, inter alia: "I feel that my privacy was infringed by the NSW Special Branch surveillance. I have never been engaged in, or would have been likely to engage in, criminal activities. I wish the release of the material for my own interest so as to know what has happened in my own life. I wish to feel at ease to have the possibility of continuing to engage in activities that are part of ordinary democracy with ordinary freedoms. I do not only wish to have the freedom of voicing opinions on political matters I also wish to be able to exercise that freedom. Information withheld makes me uneasy about continuing surveillance from an unknown organisation or persons with unknown methods of surveillance. I should not be subjected to those feelings and releasing all the information that was collected 16 and 17 years ago would help to settle me." 13 The applicant also relied upon several newspaper clippings copied from newspaper archives or downloaded and printed from the Internet (exhibits B & C). In a letter from the applicant received by the tribunal on 2 August 2000, the Internet address of the source of some of this printed material was provided. 14 A copy of the Premier's press release of 9 March 1999 was not provided to me by any party in these proceedings. That is so notwithstanding I specifically requested the first respondent during the course of the hearing to provide me with a copy. The newspaper clippings reveal that the former Special Branch, which was the subject of considerable attention by Justice Wood in the Royal Commission into Police Corruption, and was the subject of a Police Integrity Commission audit of records, was disbanded and replaced with a new group on about 18 June 1998. The former Special Branch was an organisation within the New South Wales Police Service that investigated and kept files on many thousands of individuals and organisations commencing from about 1948. According to one report in the Sydney Morning Herald dated 18 June 1998: "Special Branch collected "dirt files" on people who posed no threat of politically motivated violence, compiled "unnecessary information" on VIPs and photographed number plates of cars parked outside public meetings. The Police Integrity Commission report into the Special Branch, disbanded by the Police Commissioner, Mr Peter Ryan, in March last year [1997], found that anyone lending "any form of public support for or association with a political, religious or social cause" may have warranted a file. The range of such activity included anti-Vietnam war rallies, trade union matches, anti-logging protests, demonstrations against the third runway, and protests against Commonwealth cuts to legal aid," the report says. "The majority of people who became the subject of index cards in this manner could not have been reasonably described as representing a threat of politically motivated violence or subversive or extremist activity."" 15 The only references to the Premier's announcement concerning the freedom of information matter are contained in the report from the Sydney Morning Herald dated 10 March 1999 and in the AAP report of 9 March 1999. They contain similar information. According to the Herald report, the Premier took the media on "a tour " of a vault holding the Special Branch files as part of the press release described above in these reasons. The AAP report stated: "A vault containing secret files on citizens kept by the disbanded police Special Branch was unlocked today by the New South Wales Government. Premier Bob Carr said members of the public could read the files under freedom of information laws where there were kept in a basement vault of a police building in Sydney. The 58,000 files on journalists, politicians and other citizens were seized in 1997 after the Special Branch was discredited by the Wood Royal Commission into police corruption. Opening the vault today, Mr Carr pulled out a file on a protest group called Women Behind the Bars which had demonstrated outside the State Office Block in 1980. Mr Carr told reporters it was wrong that a file had been kept on the activists. "People ought to be able to do what you can in a democracy - stand outside a government building or a courthouse with a protest sign without having their names recorded by people pretending they are Special Branch agent in the FBI" he said. Mr Carr said the files pre-dated the Cold War and were often kept by police who took upon themselves to monitor dissident activity. "I imagine they were some sort of tin-pot ASIO,"he said, referring to the national intelligence service. Individuals can apply for their file at a reduced rate of $15 but will have to pay $30 after 12 months." 16 There is no reference in the Sydney Morning Herald report or the AAP report to the release of the Special Branch files to members of the public to whom the said files relate as being qualified or conditional in any way apart from the requirement to pay an application fee. 17 At one stage during the hearing in this matter, upon application by the first respondent, the tribunal heard evidence in the absence of both the public and the applicant. During that hearing, Mr Langburne gave oral evidence concerning the subject external agency and its relevant operations. Of the Premier's press release, he stated that his understanding of the Premier's directive was that clause 4(3)(b) would not be relied upon as a matter of course except in "special circumstances", namely, in relation to Special Branch documents or information concerning: (a) the confidentiality of informants; (b) privacy of third parties; (c) methods of police operations; and (d) information gathering from external agencies (Transcript, page 23). 18 I am satisfied from the evidence of Mr Langburne and on my reading of the disputed document itself that the document is exempt pursuant to clause 4(3)(b). As that clause resides in Part 1 of Schedule 1 of the FOI Act it is what is known as a "restricted document" within the definition of that expression in section 6 (1) of the FOI Act. 19 In submissions put to me by the first and second respondents, it is contended that restricted documents under the FOI Act are in a special category of exemptions otherwise provided for under the FOI Act as a consequence of sections 55, 57 and 124 of the FOI Act. In short, it is contended that: (a) by reason of section 57 of the FOI Act, the Tribunal is confined to an examination of whether there are reasonable grounds for the claim that the document is a restricted document; (b) by reason of section 57 of the FOI Act, if a restricted document is held to be exempt under the Act, the Tribunal does not have the same power that the original decision maker has to determine access to the document as a matter of the discretion in section 25(1) of the FOI Act. The Tribunal has no power to grant access to a restricted document; and (c) in any event, by reason of section 55 and 124 of the FOI Act the Tribunal does not have any power to give access to exempt documents in substitution for an agency's refusal to do so. It is said that the Tribunal has no "override discretion" as was held to exist in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93. 20 The first respondent did not join in the third submission put by the second respondent. The Legislative Scheme 21 Chapter 3 of the Administrative Decisions Tribunal Act 1997 ("ADT Act") provides for the jurisdiction of the Tribunal. Section 36 of the ADT Act provides: "(1) The Tribunal may: (a) make original decisions, and (b) review reviewable decisions. (2) This section does not limit any other function of the Tribunal." 22 Subject to certain "preconditions" or "conditions" to jurisdiction contained in some enabling legislation referred to in section 38(3) of the ADT Act, the conferral of jurisdiction to the Tribunal to review "reviewable decisions" as that expression is defined in section 8 of the ADT Act, is in section 38(1) of the ADT Act which provides: "(1) Conferral of review jurisdiction The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator: (a) in the exercise of functions conferred or imposed by or under the enactment, or (b) in the exercise of any other functions of the administrator identified by the enactment." 23 The enabling Act or relevant "enactment" within the meaning of this section (as the word "enactment" is defined by section 5 of the ADT Act) which gives the Tribunal jurisdiction to deal with this particular matter is section 53 of the FOI Act. 24 The respondents based their arguments relating to section 57 of the FOI Act upon the Tribunal accepting that section as constituting a "contrary provision" within the meaning of section 40(1) of the ADT Act. Section 57 of the FOI Act is so said to be the superior provision. 25 Section 40 of the ADT Act provides: "When enactment taken to make contrary provision to this Act (1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly). (2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter. (3) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section. (4) In this section: relevant enactment means an enactment under which the Tribunal has jurisdiction: (a) to make an original decision, or (b) to review a reviewable decision, or that otherwise deals with the jurisdiction of the Tribunal." 26 The Chapter in which section 40 of the ADT Act appears is Chapter 3 of that Act, sections 36 to 40 inclusive. It is styled "Jurisdiction of Tribunal". 27 The powers of the Tribunal generally in dealing with reviewable decisions is in section 63 of the ADT Act which provides: "Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." 28 It should be noted that pursuant to section 63(2), that the functions conferred or imposed on the FOI decision-maker here by the FOI Act include relevant discretions contained in sections 25 to 27 of the FOI Act. In particular, in my view, sections 25(1)(a) and 25(3) when read together in light of the relevant definitions empower the administrator to permit release to an FOI applicant of a document that is either determined to be an exempt document or a restricted document (provided it is not the subject of a Ministerial certificate) in appropriate circumstances. 29 Section 57 of the FOI Act provides: "Consideration of restricted documents (1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate. (2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of: (a) the public, and (b) the review applicant, and (c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative. (3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it. (4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application. (5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter. (6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings." The Respondents' Contentions 30 The respondents submit that notwithstanding the broad powers of the Tribunal contained in section 63 of the ADT Act, that power is "subject to" section 57 of the FOI Act which, it is said, is a "contrary provision" of a "relevant enactment" within the meaning of those expressions as they appear in section 40(1) of the ADT Act. The respondents made no mention of section 40(2) of the ADT Act which, on my reading of the Act, must be read with section 40(1). 31 The only provision of the FOI Act which is immediately apparent to me as falling within the scope or operation of sections 40(1) and (2) of the ADT Act is section 53 of the FOI Act which does provide specifically for certain provisions of the ADT Act to be rendered inapplicable in review by the Tribunal of FOI Act reviewable decisions. In any event, I do not need to decide whether section 57 of the FOI Act is a "contrary provision" unless first as a matter of proper statutory construction, section 57 has the meaning contended for by the respondents. 32 The second respondent's written submission states at paragraph 6: "If the power of the Tribunal is therefore [because of the section 40(1) of the ADT Act argument] restricted by section 57 to considering whether reasonable grounds exist for the exemption claim, the power of the Tribunal otherwise to stand in the shoes of the decision maker and exercise his or her functions, which is conferred by section 63(2), must not be exercised so as to cause a breach of section 57 of the FOI Act. It would be a breach of that section if restricted documents were released after a merits review, unless the precondition for their release in section 57 is satisfied, that is, the absence of reasonable grounds for the exemption claim." 33 Some support for that submission was said to come from some comments of the Tribunal concerning section 57 of the FOI Act in Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11. That case concerned the identity of and information provided by an informant to the respondent agency. The exemptions claimed by the agency there were clause 13 of Schedule 1 (confidential material) and clause 4(1)(a) of that schedule (investigation of contravention of the law). The disputed document was therefore said to be a restricted document. However, the Tribunal did not form any concluded view of any of the section 57 issues there. 34 I respectfully agree with Judicial Member Smith's observations at paragraphs [25] to [28] of the decision in Watkins Case. In paragraph [29] he said: "The provision remaining for discussion is s 57(4). Whether this is more than a procedural provision and restricts the substantive review function of the Tribunal in a application involving a claimed restricted document, raises some problems. It is clear that it directs the Tribunal "to reject the claim" if it is "not satisfied that there are reasonable grounds for the claim" after looking at the documents. However, does this imply that it must not reject the claim if it has been satisfied that there are "reasonable grounds" for the claim? In other words, is the Tribunal's merits review function limited to considering the existence of "reasonable grounds" and not the ultimate merits of the claim? Moreover, does s 57(4) imply that if the claim is not rejected by the Tribunal, it is obliged to affirm the refusal of access to the document without considering the exercise of the decision-maker's override discretion?" 35 Judicial Member Smith's tentative response to these questions is in paragraph [31] of the decision. He said: "I am inclined to think that s 57(4) carries an inference of a reverse direction: that the Tribunal's review function is completed once it considers there are reasonable grounds for claiming a exemption under Part 1 of Sch 1. Without reading such an implication, it is difficult to explain the intended effect of s 57(4). If so, the Tribunal is placed in the same position as the Commonwealth Tribunal under s 58 of the Commonwealth Act when reviewing a "conclusive certificate". The Tribunal could not examine the actual merits of applying the exemption and the discretion to claim it. However, the absence of an express provision to this effect in the NSW FOI Act may leave room for doubt, and it may be arguable that s 40(2) of the ADT Act requires an interpretation which would not limit the Tribunal's review function under s 63 of the ADT Act. The situation is different under the Victorian Act (see s 50(5) of its Act and Victorian Public Service Board v Wright (1985) 160 CLR 145)." 36 The respondents rely on these preliminary observations of the Tribunal as being the correct interpretation of the Tribunal's powers in the present case. 37 In my view, the proper approach to the construction of section 57(4) of the FOI Act is to read the terms of the sub-section in the context of the other subsections and the FOI Act as a whole, having regard to the long title of the Act and the objects of the Act in section 5. 38 When section 57(4) of the FOI Act speaks of "the claim" it does not refer to the Tribunal's jurisdiction to review the reviewable decision itself. It merely relates to the claim referred to in section 57(1), and picks up that language. All that section 57(4) relates to is an examination by the Tribunal of a claim by the agency that the document is a restricted document (not subject to a Ministerial Certificate). It does not speak of or relate to the Tribunal's jurisdiction or powers to "review" the reviewable decision and deal with the disputed document in accordance with sections 24 and 25 of the FOI Act, once it is found that the document is a restricted and exempt document. 39 In my view, the intended effect of section 57(4) is to accord the group of exemptions listed in Part 1 of Schedule 1 of the FOI Act a special designation in the context of the other exemptions in Schedule 1. These documents are often particularly sensitive to government and that factor should weigh heavily in any consideration of their possible release under the FOI Act by the administrator or by the Tribunal. Any overwhelming factor against release can be dealt with by government by the issue of a Ministerial Certificate (section 59 of the FOI Act) or by the Director-General of the Cabinet Office by the issue of a conclusive certificate concerning Cabinet documents (section 124(4) of the ADT Act). 40 In Watkins Case, Judicial Member Smith noted at paragraph [40]: "The broad context of the words [in clause 4(1)(b)] is a group of exemptions which, by appearing in Part 1 of Sch 1, are given special designation and protection as "restricted documents" so as to mark the documents in question as having particular sensitivity to government. The exemption criteria for most restricted documents do not contain a public interest balance test, and there is an inference that they concern documents for which a justification for secrecy is generally manifest." 41 I respectfully agree with this observation. However, that does not mean the Tribunal should be limited in its review jurisdiction to any extent beyond that which is necessary for the proper operation of the FOI Act. 42 This construction of section 57(4) of the FOI Act does not cut down the remaining review jurisdiction contained in sections 36 and 63 of the ADT Act. It is the construction that best accords with the long title and objects provision of the FOI Act. It follows the broad approach of the High Court in dealing with a not unrelated matter in respect of an alleged conflict between 2 provisions in the Victorian freedom of information legislation: see - Victorian Public Service Board v Wright (1985) 160 CLR 145 at 153-155. 43 In that case, the High Court considered an apparent conflict between sections 28(4) and 50(5) of the Freedom of Information Act 1982 (Vic). The Act at the time, provided for the review of FOI decisions to be undertaken by the County Court of Victoria. Section 28(4) provided for a conclusive certificate to be signed. Section 50(3) provided for the Court's powers on the hearing of an appeal (which are not unlike the NSW Tribunal's powers in section 63(3) of the ADT Act). Section 50(5) provided: "Where a certificate has been given in respect of a document under section 28(4), the powers of the Court do not extend to reviewing the decision to give the certificate and shall be limited to determining whether a document has been properly classified as an exempt document within the meaning of section 28." 44 The High Court resolved that apparent conflict (at 154-155) by narrowly construing the power in section 50(5) of the Victorian Act and holding that the power there was limited to the Court's review of the classification itself. It did not find or infer that the sub-section affected in any way the Court's ability to deal with the FOI appeal more generally under section 50(3) of the Victorian FOI Act. It said (at 155): "Subject to the express limitation against reviewing a decision to give a certificate, the Court will also have the powers referred to in s 50(3). Whilst s 50(5) speaks in terms of limitation when it says that where a certificate has been given in respect of a document under s 28(4), "the powers of the Court ... shall be limited to determining whether a document has been properly classified as an exempt document within the meaning of section 28", this provision in fact operates to confer power rather than restrict it, because it qualifies the earlier provision in the same sub-section that the powers of the Court do not extend to reviewing a decision to give a certificate. Viewed in this way and having regard to the object of the Act, this provision cannot be seen as cutting down the powers conferred by s 50(3), which are in general terms and may be contrasted with the powers conferred by s 50(4) where there is an express exception in relation to certain documents, including documents referred to in s 28." 45 While I do not consider the High Court's reasoning to be directly applicable here, since the NSW and Victorian FOI Acts are very different in material respects, I do consider it provides a guide to the correct approach to the construction of section 57(4) of the NSW FOI Act. 46 In any event, even if I am wrong on the proper construction of section 57(4) of the FOI Act, I cannot accept the respondents' submission that because of section 40(1) of the ADT Act, the provisions of the ADT Act operate "subject to" the implication or inference contained in section 57 of the FOI Act that was contended for by the respondents. NSW Parliament has already expressly considered and dealt with the scope of the relationship between the ADT Act and the FOI Act in relevant respects in the FOI Act itself (Section 53(4) (internal review) & (5) (application of Part5, Division 2 of the FOI Act). 47 Specific provision was made in the FOI Act for the application of section 57 of the FOI Act to the ADT Act in section 53(5) of the FOI Act. Section 53(5) of the FOI Act provides: "The provisions of this Division apply to a review application to the exclusion of section 55(1)(d), section 58 and Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997." 48 The first Division referred to there is Division 5 of Part 5 of the FOI Act styled "Reviews by the Tribunal", sections 52B to 58 inclusive. The parts of the ADT Act that are thereby specifically affected by sections 52B to 58 of the FOI Act by section 53(5) are: (a) the time when a review application may be made to the Tribunal (section 55(1)(d) of the ADT Act); (b) the duty of the administrator to lodge material documents with the Tribunal (section 58 of the ADT Act); and, (c) stay orders and the status of the administrator's decision pending review by the Tribunal (Division 2 of Part 3 of Chapter 5 of the ADT Act, sections 60-62). 49 I take it as significant that Parliament, having specifically addressed the manner in which section 57 of the FOI Act affects the ADT Act did not mention any affect on the Tribunal's review jurisdiction in sections 36 and 63 of the ADT Act and section 53 of the FOI Act. If Parliament had intended section 57(4) of the FOI Act to operate to the exclusion of the Tribunal's review jurisdiction and powers contained in those sections, it would have been a simple matter for it to say so in section 53(5). In these circumstances the Tribunal should not construe the terms of the FOI Act in order to discover other possible implications for the purposes of section 40(1) of the ADT Act. Satisfaction as to Reasonable Grounds 50 The respondents further submitted that by reason of section 57 of the FOI Act, the Tribunal is confined to an examination of whether there are reasonable grounds for the claim that the document is a restricted document. It was argued in the second respondent's written submissions (but not plainly stated there) that, in effect, the Tribunal should not apply a test based on the satisfaction of the Tribunal that there are reasonable ground for the restricted documents exemption claim. The Tribunal was said to be constrained by an approach based on Commonwealth FOI authorities that it must only be satisfied as to whether there exist reasonable grounds. It is argued that if there exist reasonable grounds, objectively determined by reference to a standard of moderate and sensible persons, the document is a restricted document and that is the end of the Tribunal's inquiry. 51 The said written submissions argues (at paragraph 9): "When considering what matters the Tribunal must take into account when determining whether there are "reasonable grounds" for a claim that a document is a restricted document, is submitted that regard can be had to the Commonwealth authorities which have considered the application of section 58(4) and (5) of the Commonwealth FOI Act. Section 58(4) requires the Commonwealth review body to consider whether there exist reasonable grounds for a claim that a document, the subject of a certificate issued under sections 33, 33A, 34 or 35 of the FOI Act, is exempt. Section 58(5) requires the Commonwealth review body to determine whether there exist "reasonable grounds" for the claim that disclosure of the document, the subject of a certificate under section 36(3) of that Act, would be contrary to the public interest." 52 I was invited to apply the test of the meaning of "reasonable grounds" as it was considered by Beazley J in Australian Doctors' Fund Ltd v Commonwealth of Australia (1994) 49 FCR 478 at 484-488. 53 Although I do not need to decide this issue, as, on any view of it, the disputed document in the present case is a restricted document, I cannot accept this submission. There are significant hurdles for any party seeking to draw on Commonwealth FOI legislation in this particular area. While Federal Court and AAT decisions on the Commonwealth FOI Act may be of some assistance in areas where the legislation is identical or substantially the same as the NSW legislation, in the area of Ministerial certificates and the categorization of the restricted documents in NSW, the NSW FOI Act charts an entirely different course from that of the Commonwealth. NSW Parliament has chosen a fundamentally different path here. In my view, that evinces an intention in NSW to differentiate the Commonwealth law, such that great caution is needed in resorting to Commonwealth authorities as if they are necessarily directly applicable to the proper construction of section 57. 54 In any event, in terms, there are significant differences between section 57 of the NSW FOI Act and sections 58(4) and (5) of the Commonwealth FOI Act. For example, the NSW FOI Act provision does not include the words "determine the question whether there exist reasonable grounds for the claim". Section 57 of the NSW FOI Act speaks of the Tribunal's "satisfaction" that there are reasonable grounds for the claim. It seems to me that these provisions require the undertaking of two different exercises. 55 There would need to be more detailed argument and submissions to properly consider this issue. For example, in addition to matters I have mentioned, there is recent High Court authority on the nature of a statutory decision-making power that is dependent upon a decision-maker being "satisfied" of a matter. It may be that that the test in section 57(4) of the FOI Act is no higher than that the Tribunal must be satisfied that there are reasonable grounds for the claimed exemption. That satisfaction itself requires an opinion or satisfaction that is formed reasonably upon the material then before the Tribunal (see, for example, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [34] and in particular, the cases cited at footnote 44 there). 56 In a section 57 cabinet documents case under the FOI Act (as it was at an earlier time in a different form, before relevant amendments took effect from 19 May 1992 by the Freedom of Information (Amendment) Act 1992 (no. 38), Schedule 1(7)), Urquhart DCJ, in Hawker v Premier's Department NSW, unreported, District Court of NSW, 17 December 1990, at page 12, adopted and applied the test in section 57 as based upon the "satisfaction" of the Court of "reasonable grounds" in that case on the evidence then before the Court: - see also, Watkin's case at paragraph [44]. It is unnecessary in the present case to further consider the issue. Application of Previous Tribunal Decisions - Whether Mangoplah should be followed. 57 I now turn to the respondent's final submission. This is a submission only of the second respondent. The first respondent did not adopt it at the hearing (transcript page 69). It is argued that by reason of section 55 and 124 of the FOI Act, the Tribunal does not have any power to give access to exempt documents in substitution for an agency's refusal to do so. It is said that the Tribunal has no "override discretion" as was held to exist by Judicial Member Smith in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 as the decision is said to be "incorrect" for a number of reasons. Some small reliance was also placed on my comments concerning section 124 of the FOI Act in Taylor v Chief Inspector RSPCA [1999] NSWATD 23 at [54]-[58]. However, I did not need to decide the question there. 58 The respondents made no attempt to argue that the decision in Mangoplah' Case was plainly wrong. There was no reference at all to the number of other Tribunal decisions which have considered the override discretion identified in Mangoplah' Case and which have applied it. For example, the case was applied by the President of the Tribunal in X v Director-General, Department of Community Services [1999] NSWADT 141 at [73-76](the Appeal Panel decision at [2000] NSWADTAP 23 on appeal from this decision did not consider the point). Deputy President Hennessy agreed with the reasoning in Mangoplah in Kay (No. 2) -v- Commissioner, Department of Corrective Services [2000] NSWADT 67 at [42]. Recently, the Appeal Panel of the Tribunal considered and adopted Mangoplah in relation to a legal professional privilege matter. In Chief Executive, SAS Trustee Corporation -v- Daykin [2000] NSWADTAP 20 at [36] the Appeal Panel, comprising the President, Judicial Member Goode and Member Bolt, upheld the existence of the override discretion and considered the manner of its exercise in legal professional privilege cases. 59 No submission was put to me as to whether or not I was free to make up my own mind about the override discretion. Nothing was said about the effect of the decision on me or the probity or utility of opening up Mangoplah again, even if I did not agree with it. 60 The Tribunal is not bound by precedent or the doctrine of stare decisis in the strict sense in relation to being formally bound by earlier decisions of the Tribunal. However, for a number of reasons, I consider the Tribunal should ordinarily follow decisions of the Appeal Panel and decisions of the Tribunal as constituted by the President or the Deputy Presidents. 61 The reasons why these decisions should be followed is because they are authoritative and they go some way to seeking to ensure consistency in the Tribunal's decision-making. Achieving that objective would constitute a significant step towards the Tribunal fulfilling its promotion and education role suggested in section 3(g) of the ADT Act which provides that the objects of the ADT Act are: "to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales." 62 In my view, consistent decisions of the Tribunal go some way to promote and effect that compliance. 63 The Tribunal should only refuse to follow a decision of the Appeal Panel or the Tribunal as constituted by the President or the Deputy Presidents if it concludes that the previous decision is clearly wrong. That is the approach based upon comity adopted by some other Courts and Tribunals in Australia that are not strictly bound by their own previous decisions (see, for example, Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 1375 (Finn J). 64 In the Commonwealth AAT, the leading decision on this point was Re Ganchov and Comcare (1990) 11 AAR 468, a decision of Deputy President Todd. In that case the Deputy President applied an earlier decision of the President of the Tribunal even though he did not agree with it. He said (at 469-470): "The decision in Re Willis was a decision of the President. The Tribunal is not legally required to apply a strict doctrine of precedent. It is not a court, and is not of last resort; as to which see the joint judgment of Dawson, Toohey and McHugh JJ in Nguyen v Nguyen (1990) 169 CLR 245. It is however I believe time to say that unless decisions of the President are followed by all within the Tribunal, and unless decisions of Presidential Members (which of course includes Deputy Presidents) clearly dealing with a point in issue are followed within the Tribunal, the Tribunal could gain a reputation of inconsistency if not disarray. In critical cases it is certainly in my view open to a member to note his or her disagreement with a precedent decision, but it is not desirable for members to adhere to views that appeal to them when the point has been decided otherwise at a higher level. That is not to say however that members are not entitled to express their own view for the record, as I have done here. For the rest, as the whole question of following previous decisions is related solely to questions of law, a disappointed party has a right to appeal if the view of such a would-be dissentient from the precedent case is seen as compelling." 65 In the result, as Mangoplah has been adopted and applied by the President and Deputy President of this Tribunal and the Appeal Panel, and as I am not persuaded that Mangoplah was clearly wrong, I do not propose decide against it. In any event, I have considered Mangoplah both on its own terms in the context of the second respondent's written submissions. I consider Mangoplah to correctly identify the existence of and nature of the Tribunal's override discretion. In addition, I also agree with the Tribunal's consideration in Mangoplah of the occasions that the discretion might be exercised by the Tribunal and the manner of its exercise - [1999] NSWADT 93 at [90] and [91]. 66 In addition to those matters, I note that there are occasionally documents which only technically fall within an exemption under the FOI Act. There will be situations sometimes where "no adverse consequences will flow from a document's release, despite the fact that it falls within the bounds of an exemption provision" [see, Open Government: a review of the federal Freedom of Information Act 1982, ALRC Report No 77, ARC Report No 40, 1995, Commonwealth, at paragraph 8.3]. 67 I agree that the touchstone here in applying the override discretion is whether withholding the document is "reasonably necessary for the proper administration of the Government" - section 5(2)(b) of the FOI Act - Mangoplah at [90]. 68 In the present case, I have already indicated my view that the fact that the document is a restricted document weighs heavily in considering the exercise of the override discretion. Parliament has singled out restricted documents for special attention by the Tribunal. 69 On the applicant's side, I consider that her entitlement to be appraised fully of what is contained on the former Special Branch files that relates to her is a significant factor in her favour in the exercise of the discretion, particularly in light of the unchallenged evidence adduced by the applicant concerning the Premier's announcement and the other findings apparently discrediting the work of the former Special Branch. 70 The applicant was most concerned that the disputed material might relate to her personally and she was unsettled or uneasy about this. I do not consider that section 55(1) of the FOI Act, which requires me to "maintain the mystery" relating to contents of the 3 deleted paragraphs (Watkins' case, [2000] NSWADT 11 at [6]) prohibits me at all from noting for the benefit and comfort of the applicant that the material in the deleted paragraphs does not appear, from my reading of them in the context of the files released to the FOI applicant (exhibit 1), to relate to the applicant personally at all. 71 As to keeping secret from the applicant the identity of the external agency concerned, I am not satisfied that there was any good reason established or sought to be established by the first respondent that the applicant should be denied any information as to the actual identity of the external agency concerned here. She is already aware from the documents released to her by the first respondent that, for example, the Wollongong Branch of ASIO (the Australian Security Intelligence Organisation) was involved in sending surveillance information to the Special Branch in 1979 (exhibit 1, last page and transcript pages 48-49). 72 Had the first respondent identified to the applicant in the reasons for the FOI refusals or in the submissions before the Tribunal the identity of the external agency concerned here, the applicant might have been in a position to better understand the case against her or present her arguments or seek advice. I would have released the identity of the agency to the applicant. However, I do not propose to do so in these reasons, as, if I am wrong in my view, the right of any appeal of the respondents in this regard would be rendered nugatory. I do recommend to the first respondent that it identifies to the applicant the identity of the external agency concerned. 73 Having considered the disputed material, the reasons for its creation, and the on-going nature of the relationship between the external agency and the first respondent and the evidence that the said relationship and provision of future information would be adversely affected by the release of the disputed material, I consider that it cannot be said disclosure of the document would be "totally innocuous" (Mangoplah at [91]) or that there will be no adverse consequences for the first respondent should the document be released. Accordingly, I determine that the disputed material, on balance, should not be released to the applicant in this particular case in these particular circumstances. 74 It might be that in a appropriate case, the Tribunal might consider a factor favouring the release of the material is that it was not supplied or created for "legitimate purposes" or it was "tainted in some way" in its creation or delivery (see, for example, Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 1221 at [8] & [13] (Wilcox J). It is impossible for me to make such a determination here without examining the entire relevant or related Special Branch files or hearing some evidence in relation to them. For these reasons, I determine that the decision under review is affirmed.

Mangoplah Pastoral Co Pty Ltd v Great Southern Energy

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (5)

Cited By (7)