News Corporation Limited v National Companies and Securities Commission

The applicant was not represented before the Tribunal or on this appeal. Sometime before the hearing of the appeal by the Tribunal the applicant was given documents by the Department which, amongst other things, made it clear that in relation to the document in question s 37(1)(b) was being relied on. In the course of the hearing the document itself in unamended form was considered by the Tribunal in the absence of the applicant. The Tribunal had some discussion, again in the absence of the applicant, with the representative of the Department. Following this the Tribunal summarised in general terms the effect of the discussion with the Department's representative. At a later stage this encounter took place. "MR BARTLETT: Undecided, actually. I'm - let me think now. Sorry to put you on the spot. What I am undecided about is whether there is some need for me to give further evidence as in relation to, you know, the identity of the informant. THE D. PRESIDENT:Well, will you not strike this problem? That if you say to me I have every reason to believe that the informant was X, or X has told me that he or she was the informant, I cannot tell you whether you --- THE D. PRESIDENT:All right, anything else? MR BARTLETT: No, I cannot think of anything else, no. THE D. PRESIDENT:All right. Now, I take it that as the argument under section 37(2)(b) has evaporated that you are no longer asking for time to come up with any further argument in relation to any aspect of the matter? MR BARTLETT: Well, if the understanding is that the arguments in relation to 37(1)(a) only relate to Wright and Heiner being possibly prosecuted and that, you know, then I have got --- THE D. PRESIDENT:Well, I --- MR BARTLETT: There was an argument in relation to 37(1)(a). THE D. PRESIDENT:Yes. MR BARTLETT: And now, I mean, what --- THE D. PRESIDENT:Well, I do not propose to - I cannot see any basis on which I would make a ruling relying on 37(1) unless there is an investigation pending in relation to one of them." The relevant portion of the Tribunal's reasons are as follows - "Section 37(1)(b) - Confidential Information 14. [The terms of s 37(1)(b) were set out.] 15. The referral contains information as who [sic] denounced the applicant to officers of the department. There is other information in the document which, if disclosed to the applicant, could reasonably be expected to enable him to ascertain the identity of one or more individuals who denounced him. For example, there is information as to the category of person that information has come from, there is at least one allegation not previously made known to the applicant, and there is information as to when certain allegations were made. It is reasonably possible that the applicant knows who had the information in question at the time of the denunciation in question, and can identify the informant by means of a process of elimination. 16. Even when confidentiality is not expressly agreed upon between the informant and the official to whom information is provided, it should ordinarily be implied that information provided by a member of public to an officer of the department as to possible breaches of the law is provided and received under a pledge of confidentiality: McKenzie v Secretary, Department of Social Security (1986) 11 ALN N110. There is no reason to hold otherwise on the evidence in this case. 17. In my view the only parts of referral document whose disclosure could reasonably be expected to enable the applicant or anyone else to ascertain the identity of any confidential source or sources of information are the following: (a) the first four words in the first paragraph of text under the heading "Background" on page 1; (b) the second sentence of that paragraph; (c) the third paragraph of text under the heading "Background" on page 1; (d) the second sentence of the second paragraph on page 2; and (e) the second sentence (i.e. the sentence in brackets) of the first paragraph on page . 18. The disclosure of the whole of the referral document could reasonably be expected to enable a person to ascertain the identity of one or more confidential sources of information in relation to the enforcement of the law. The document is therefore is [sic] an exempt document by virtue of s.37(1)(b) of the Act. I must therefore decide not to grant access to the document as a whole. It is possible for the respondent to make a copy of the document with deletions of the passages referred to above. The copy would not be an exempt document. It is reasonably practicable for the respondent, having regard to the nature and extent of the work involved in making those deletions and the resources available for that work, to make such a copy. Under such circumstances, s.22(1) of the Act applies. I need not set out the text of that sub-section. The appropriate decision is that the respondent make and grant access to such a copy of the referral document. 19. For these reasons the decision under review is set aside and the matter remitted to the respondent with a direction that he make, and grant the applicant access to, a copy of the referral by officers of the Department of Social Security to the Australian Federal Police dated 18 October 1991 with the passages listed above deleted therefrom, and nothing else deleted therefrom."

In his notice of appeal the applicant relied on two grounds as follows - "4. GROUNDS 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 amounts to the same as a reasonable expectation under the terms required by s 37(1)(b). Further, and/or in the alternative, the applicant was denied natural justice as a result of the Tribunal failing, contrary to s.39 of the AAT Act, to provide the applicant with an opportunity to put evidence to the Tribunal as to the likelihood of any such disclosure, as is referred to in para 15 of the Tribunal's decision, enabling the applicant to ascertain the identity of a confidential source of information. In particular the Tribunal failed to alert the applicant to the existence of any such evidence."

As to the first ground, 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. As Woodward J said in News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88 at 101: "A reasonable expectation of an event requires more than a possibility, risk or chance of the event occurring." The critical passage in the Tribunal's reasons on this issue is to be found in par 15. I have come to the conclusion that the applicant's submission as to the construction of this paragraph is correct. The last sentence of the paragraph uses the term "reasonably possible". If the Tribunal was in fact applying the standard of reasonable possibility then that would be a different standard from that required by s 37(1)(b) and there would be an error of law. I appreciate of course what has been said in decisions of the High Court recently as to the importance of not construing decisions of Tribunals or other administrative decision-makers in a pedantic way or searching with a fine eye for error, and I am conscious that arguments can be put either way as to the construction of par 15. However, I have come to the conclusion that it is not correct to read the last sentence of par 15 as though it were a mere comment in which the Tribunal is speaking of the possibility of the applicant identifying the informant otherwise than by use of the documents sought. I think the reference to the "information in question" is referring back to information referred to in the second and third sentences of the paragraph. The first sentence of the paragraph seems to be speaking of direct information, presumably name or address or other details of the informant; the remainder of the paragraph is concerned with "other information" which could reveal the source but in an indirect way because it could be used by the applicant in connection with other information already held by him. The third sentence commencing with the words "For example" clearly is expounding and giving content to that conclusion. The fourth sentence is really demonstrating the way in which the applicant could use that information obtained from the document. Because that last sentence speaks of the standard which is not the one prescribed by law, I think the reasoning does disclose error. As to the second ground, I am not satisfied that there was any lack of procedural fairness. The applicant had already given consideration as to the question of whether he should call evidence - "MR BARTLETT: Undecided, actually. I'm - let me think now. Sorry to put you on the spot. What I am undecided about is whether there is some need for me to give further evidence as in relation to, you know, the identity of the informant." He was made aware of the section of the Act which was being relied on. This was not a case where the respondent relied on evidence. The critical questions arising under s 37(1)(b) were determined, as might be expected, from the nature of the document itself. There was also a complaint as to the finding of the Tribunal that the source was a confidential source. This was not covered by any of the applicant's grounds of appeal, but in any case I am satisfied that there is no substance in the argument. It was open to the Tribunal to make a finding of fact in the circumstances, particularly having regard to the nature of the document, that any person providing information of the kind in question to a government department would be doing so in confidence. There will be an order that the appeal be allowed and that the matter be remitted to the Tribunal with a direction that the matter be determined in accordance with these reasons. Prima facie I see no reason why it needs to go back to a Tribunal differently constituted. I will direct that the respondent pay the applicant's proved out of pocket expenses for attendance at the hearing today; those costs in default of agreement to be fixed by the District Registrar.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate: Dated: 28 April 1998 Counsel for the Applicant: In person

Solicitor for the Respondent: Australian Government Solicitor