The primary judge recorded his decision as follows:
By approaching the section with regard to the ordinary and natural meaning of the expression 'information', it is my view that the name of the agency and the terms of the request for confidentiality can be said to be 'information'. As the Full Court pointed out in Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at 217-218, the expression 'information' is a broad expression and can include, according to the Oxford English Dictionary (2nd ed, 1989), '[k]nowledge communicated concerning some particular fact, subject or event; that of which one is apprised or told'. The name of the agency giving the information and the terms of the request, if disclosed, would clearly communicate knowledge about facts. …
The second submission is that even if the name of the agency, and the terms of the request, amount to 'information', nevertheless, such information cannot be relevant to the exercise of powers under the sections referred to in s 503A(1). In my view, the name of the agency could be relevant to the exercise of the power. The status, history and reputation of the agency, for example, may be important in making a decision as to whether the information is reliable or worthy of weight, and if so, what importance ought to be attached to it. Likewise, the terms of the request may be relevant in exercising the relevant powers because they might disclose the reasons for the request which, in turn, may reflect on the conduct of the applicant.
The important factor in this submission, however, is that the appeal to this Court is made on the basis of an error of law. The determination of questions of fact is for the AAT. There is no evidence to cast doubt on the fact that a request was made. Accordingly, the applicant has not made good any case that there was not a request which would enliven the operation of s 503A."
The primary judge concluded:
"… I am satisfied that the decision of the AAT does not disclose any error of law and, accordingly, I dismiss the appeal …"
19 On 19 October 2001, a notice of appeal was filed. The first two grounds of that notice of appeal were as follows:
"1. His Honour erred in holding that the name of the agency which provided documents to the respondent relating to the alleged affairs of the appellant is 'information' for the purposes of section 503A of the Migration Act 1958.
2. His Honour erred in holding that any request for confidentiality (being the words requesting confidentiality, exclusive of their context) contained in documents provided to the respondent is 'information' for the purposes of section 503A of the Migration Act 1958."
20 Three further grounds were included in that notice of appeal, and at the hearing of the appeal, leave was sought to amend those grounds as follows:
"3. His Honour erred in in failing to decide whether, in this particular case, the name of the agency is in fact 'relevant' to the exercise of a power under sections 501, 501A, 501B, or 501C of the Migration Act.
4. His Honour erred in failing to decide, in this particular case whether any request for confidentiality (being the words requesting confidentiality, exclusive of their context) contained in documents provided to the respondent is in fact 'relevant' to the exercise of a power under sections 501, 501A, 501B, or 501C of the Migration Act.
5. In finding that there was no evidence to cast doubt upon the fact that a request for confidentiality was made, his Honour erred in applying a reverse onus of proof.
Particulars
(a) There is no evidence that a request for confidentiality was in fact made.
(b) There was no finding by the Administrative Appeals Tribunal that a request for confidentiality was made."
21 The Court indicated that it would reserve its consideration of granting leave to argue those grounds until hearing the argument on the appeal.
22 In addition, at the invitation of the Court, the appellant was permitted to add a further ground:
"6. His Honour erred in holding that section 503A of the Migration Act operated to preclude the respondent from giving access to documents sought under section 15 of the Freedom of Information Act in circumstances where the documents were not provided by a gazetted agency within the meaning of section 503A(1) of the Migration Act."
That ground is directed to the question of whether the Gazette of 9 June 1999 is a valid specification for the purposes of s 503A(9) of the Act.
23 The first two grounds of appeal are the grounds crucial to the determination of this appeal.
24 It is true that the source of information communicated to an authorised migration officer and any condition upon which that information was communicated can be described accurately as "information". However, the source of information communicated to an authorised migration officer and the condition on which that information is communicated is not itself the "information" which is protected from disclosure by s 503A(1). The information which is protected by s 503A(1) is information which is:
(i) communicated to an authorised migration officer;
(ii) by a gazetted agency;
(iii) on condition that it be treated as confidential information; and
(iv) relevant to the exercise of a power under s 501, 501A, 501B or 501C.
25 The identity of the agency which provided "protected information" to the respondent is not itself protected information within s 503A of the Act. Not only is the source of the information not itself information which is protected, any condition upon which the information is communicated is also not "protected information". In our judgment, neither the name of the agency which communicated information to an authorised migration officer, nor the condition upon which that communication occurred, is itself information which is protected from being divulged pursuant to s 503A(1).
26 Whilst the operation of s 503A(1) has been the substantive point of the argument on appeal, the fundamental question for the AAT was whether each document containing the information sought was an exempt document within the meaning of s 38 of the FOI Act. In order to establish that proposition, it would be necessary for the respondent to prove in a proper fashion:
· that the information had been communicated by a gazetted agency;
· that it had been communicated by that agency to a person who was an authorised migration officer;
· that the information was so communicated on condition that it be treated as confidential; and
· that the information was relevant to the exercise of the relevant power.
(see Wu v Minister for Immigration & Multicultural Affairs [2001] FCA 89 at [10]). This would require disclosure of the identity of the agency and the communication of the condition as to confidentiality. This illustrates that the argument that such matters are confidential is inconsistent with s 38 of the FOI Act.
27 The issue may have become obscured because the appellant chose to make a limited request for information rather than to seek all of the substantive information. If the latter course had been taken, the obligation upon the respondent to prove the elements of s 503A may have been more obvious.
28 In the light of our conclusions on the central questions on the appeal, it is unnecessary to consider the amended grounds 3, 4 and 5, and therefore leave to amend those grounds should not be granted. It should be noted, however, that one of the requirements for protection from disclosure pursuant to s 503A is that that information is relevant to the exercise of a power under ss 501, 501A, 501B or 501C of the Act; it is not a sufficient compliance with that condition for protection from disclosure that the information might be relevant to the exercise of any such power.
29 Insofar as the proposed amended ground 5 is concerned, it would have been an error for the primary judge to "apply a reverse onus of proof". However, we understand the primary judge's reference "[t]here is no evidence to cast doubt on the fact that a request was made" to be simply a statement that an appeal lies to the Federal Court only on questions of law, and that whether the request was made is a matter of fact. If his Honour did intend to suggest that an applicant under the FOI Act has an onus to disprove an exemption asserted pursuant to s 38, then we respectfully disagree, as will be plain from the manner in which we have dealt with the first two grounds of appeal.
30 It is unnecessary also to consider the amended ground 6, in light of the Court's findings on the first two grounds of the appeal. That ground raises the question of whether the Gazette of 9 June 1999 earlier set out is a valid specification for the purposes of s 503A(9) of the Act. The letter of 28 February 2001 by a delegate of the Minister to the appellant's solicitor merely states that the information refers to "information obtained from the PRC government concerning [the appellant]".
31 It would seem that the PRC Government is not itself a "gazetted agency" within s 503A(9) of the Act. The purported specification by the Minister is in fact a description by genus, the genus including each body, agency or organisation that is responsible in the People's Republic of China for law enforcement, criminal intelligence, criminal investigation or security intelligence. The purported specification is no more than a repetition in the terms used in the Act of the same bodies, etc, referred to in the Act which are required to be specified, albeit limited to all bodies, etc, of that description in the enunciated countries. Counsel for the respondent submitted that this was a sufficient specification within the requirement of s 503A(9) of the Act, relying on s 46(2) of the Acts Interpretation Act 1901 (Cth) which relevantly provides:
"Where an act confers upon an authority power to make an instrument (including rules, regulations or by-laws) or a resolution:
(a) specifying, declaring or prescribing a matter or thing; or
(b) doing anything in relation to a matter or thing;
then, in exercising the power, the authority may identify the matter or thing by referring to a class or classes of matters or things."
32 The word "specified" is normally used in the sense of stating in detail or with specificity (TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496 at 503) or to state in explicit terms so that there is clarity and precision (see the authorities referred to by Burchett J in Tickner v Chapman (1995) 57 FCR 451 at 480-481, see also Black CJ at 457-458 and Keifel J at 491-492 in that case). Section 46(2) of the Acts Interpretation Act was only introduced in 1990. There is nothing in the second reading speeches in respect of the introduction of s 46(2) which bears on the present question.
33 The only authority to which we were referred which has considered s 46(2) is the judgment of Dunford J in Concord Council v Optus Networks Pty Ltd (1996) 90 LGERA 232. That decision considered s 116(1) of the Telecommunications Act 1991(Cth) which provides:
"The regulations may provide that specified carriers may engage in specified exempt activities despite specified laws of a State or Territory."
34 The Telecommunications (Exempt Activities) Regulations 1991 (Cth) provided in regs 4, 5 and 6 as follows (so far as relevant):
"4. For the purposes of subsection 116(1) of the Act, the following carriers are specified:
(a) a general carrier; and
(b) a mobile carrier.
5. For the purposes of subsection 116(1) of the Act, the following exempt activities are specified:
…
6. For the purposes of subsection 116(1) of the Act, a carrier may engage in the exempt activities set out in regulation 5 despite a law of a State or Territory about:
(a) the assessment of the environmental effects of engaging in the exempt activity;
(b) the protection of places or items of significance to Australia's natural or cultural heritage, but not including provisions of the law that provide for the protection of places or items of significance to the cultural heritage of Aboriginal persons or Torres Strait Islanders;
(c) town planning;
(d) the planning, design, siting, construction, alteration or removal of a structure;
(e) the powers and functions of a local government body;
(f) the use of land;
(g) tenancy;
(h) the supply of fuel or power, including the supply and distribution of extra low voltage power systems, but not including provisions of the laws that provide for the supply of electricity at a voltage that exceeds that used for ordinary commercial or domestic requirements."
35 In Concord, Dunford J noted at 257:
"The Regulations do not name the carriers or the exempt activities referred to, but no objection is taken in this regard."
His Honour continued:
"They do not name the various laws of the different States and Territories which are not to apply to the relevant carriers but describe such laws as including laws about (a) the assessment of the environmental effects of engaging in the exempt activity; … (c) town planning; (d) the planning, design, siting, construction, alteration or removal of a structure; and (e) the powers and functions of a local government body."
36 The plaintiffs in that case submitted that the laws which are not to apply had not been "specified". Dunford J referred to the observations of Herron CJ in Clyne v Cardiff (1965) 65 SR (NSW) 213 at 217:
"The word specify, as relates to provisions of an Act, means more than to refer to them by reference to the legal effect or legal implication of a Board's decision. Such would not specify the provisions explicitly enough or with sufficient definition. …"
37 In the same case, Sugerman J (at 221) held that there was "much force" supporting the view that "specified" in the particular section meant specified by enumeration of sections, parts or the like; but went on to state (at 222) that, even if it was possible to specify provisions, not by enumerating them but by means of a summary statement of their effect, the summary statement:
"must then be capable of serving as an unambiguous identification of the provisions whose operation is intended to be excluded - an identification as unambiguous as if the provisions had been enumerated."
38 Dunford J referred to s 46(2) of the Acts Interpretation Act, and held that there had been, in the case before him, an identification of the matter or thing by referring to a class or classes of matters or things. Dunford J said at 259:
" 'Matter', and 'thing' are words of very wide import, and must, in my view encompass 'laws'. The laws of the States or Territories from which the carriers are to be exempt are specified or identified by reference to classes of laws and the section renders it unnecessary to identify the subject laws by reference to the name or year and number of the act, and so the strict meaning of 'specified' is not relevant, and they can be identified with certainty and precision from the description of the class and having regard to the context, subject matter and purposes of the legislation, they are sufficiently specified." (Emphasis added)
39 The laws of the States or Territories from which the carriers were to be exempt in that case were identified by reference to species of laws of a State or Territory being, for instance, laws of that state or territory about town planning. Whilst the decision upon the question of construction in that case may be debatable, at least there was an identification of a species from a genus, the identification consisting in the description of the character of the species by reference to known circumstances as citizens of Australia are presumed to know Australian law.
40 That is to be contrasted with what the Minister has purported to do in respect of specifying the bodies, agencies or organisations which are to be "gazetted agencies" for the purposes of s 503A of the Act. That specification is by reference to unidentified bodies in a group of foreign countries carrying out activities identified only by reference to the statutory description.
41 Whether the source of the information is or is not a "gazetted agency" within the proper meaning of s 503A is however not a question directly before this court. If the source of the information is not a "gazetted agency", as properly construed, one of the pre-conditions to protection from disclosure is not met. That question arises only after the source of the information is identified and so, given the matters in issue before the AAT and the primary judge, is truly for another day. It is unnecessary and, as a consequence, inappropriate to express any concluded view on whether the Gazette of 9 June 1999 is a valid specification for the purposes of s 503A(9) of the Act.
42 It follows that the appeal should be allowed and the orders of the primary judge set aside. The applicant seeks an order that the respondent be directed to produce to the appellant's solicitors all documents in the possession, custody or control of the respondent, its officers or agents which it has received from the government or agencies of the government of the People's Republic of China, and which pertain to the conduct or affairs of the appellant, but only in so far as they reveal:
(a) the name of the agency from which the document originated; and
(b) any request for confidentiality therein (being the words requesting confidentiality, exclusive of their context).
This Court would not normally make a substantive order which it is within the jurisdiction of the AAT to make. However, as there is no remaining residual discretion to be exercised, in our opinion, the making of the orders sought is appropriate (s 44(4) AAT Act). The respondent should pay the appellant's costs of the appeal and the proceedings at first instance, to be taxed if not agreed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Gyles and Conti.