[1991] FCA 616; (1991) 33 FCR 122

Administrative Law - Freedom of information - document claimed to be exempt under Freedom of Information Act - Certificate pursuant to s.34(2) - power of Administrative Appeals Tribunal to determine whether there exist reasonable grounds for claim that document exempt - not concerned with whether it was unreasonable to refuse access - previous restricted or conditional disclosure of document otherwise than under Freedom of Information Act irrelevant.

Freedom of Information Act 1982 (Cth.) ss. 34, 58 and 58A.

Department of Industrial Relations v Forrest 1990 21 FCR 93 referred to.

Counsel for Applicant: Mr N.A. Moshinsky QC with Mr K.H. Bell

Solicitor for Applicant: Australian Government Solicitor

Counsel for Respondent: Mr M.J.L. Dowling QC with Mr I.F. Turley

The decision of the Administrative Appeals Tribunal in this matter be set aside and there be substituted therefor a declaration that there exist reasonable grounds for the claim that the Government's submission to the Anomalies Conference of the Remuneration Tribunal held on 19 November 1987 was an exempt document under s.34(1)(c) of the Freedom of Information Act 1982 (Cth)

The Respondent pay the Applicant's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The facts and issues arising in this appeal have been set out in the reasons for judgment of my brother Ryan J. It is sufficient if I deal briefly with the principal issues.

2. The applicant had sought access under the Freedom of Information Act 1982 (Cth) ("the FOI Act") in respect of a written submission ("the Submission") which had been prepared for and distributed for the purposes of a confidential "Anomalies Conference" held by the Remuneration Tribunal in respect of the remuneration of members of Parliament.

3. Access was refused on a number of grounds including grounds (c) and (d) specified in s.34(1) of the FOI Act which provides:-

"34. (1) A document is an exempt document if it is:

(a) a document that has been submitted to the

Cabinet for its consideration or is

proposed by a Minister to be so

submitted, being a document that was

brought into existence for the purpose of

submission for consideration by the Cabinet;

(b) an official record of the Cabinet;

(c) a document that is a copy of, or of a

part of, or contains an extract from, a

document referred to in paragraph (a) or (b); or

(d) a document the disclosure of which would

involve the disclosure of any

deliberation or decision of the Cabinet,

other than a document by which a decision

of the Cabinet was officially published."

In support of the claim for exemption under these provisions, the Secretary of the Department of Prime Minister and Cabinet gave a conclusive certificate certifying that the document was of a kind referred to in paragraphs (c) and (d).

4. In accordance with s.58(4) of the FOI Act, the function of the Tribunal was therefore to "determine the question whether there exist reasonable grounds for that claim."

5. The Tribunal, though it found that the Submission contained an extract from an official record of the Cabinet, nevertheless concluded that there were no reasonable grounds for the claim of exemption. The Tribunal held in substance that the distribution of the Government's submission to persons attending at the confidential Anomalies Conference constituted a waiver by the Government of the public interest immunity which may otherwise have attached to the document. The Tribunal made references to cases such as Sankey v Whitlam (1978) 142 CLR 1.

6. For the purposes only of these reasons for judgment, I assume, without considering the issues, that the disclosure of the Submission to the persons attending the Anomalies Conference may have constituted a waiver of public interest immunity and further that, the Submission having been officially disclosed as Cabinet intended, it may not have met the description in s.34(1)(d) of the FOI Act. However, the Tribunal found, and there is no challenge to the finding, that the document met the criteria specified in s.34(1)(c).

7. It is not clear from the Tribunal's reasons for decision whether the Tribunal was of the view that the conclusive certificate was not well based because there was to be implied into s.34, as a matter of statutory interpretation, the requirement that in addition to the legislative criteria the document satisfy the tests developed by the courts for public interest immunity or whether, on the other hand, the Tribunal merely thought that it was unreasonable to claim exemption for a document which had been distributed by the Government to the persons attending the Anomalies Conference, each of whom would probably have passed the document on to others. I shall deal with each of these two possible bases for the Tribunal's decision.

8. The FOI Act provides a statutory scheme for release to the public of documents held by departments and officials of the Government. It states its own criteria and specifies the means by which access to the documents may be obtained. In interpreting these provisions, it is rarely useful to have regard to the circumstances in which, in other contexts, courts have ordered that documents be produced by one party to another or that the confidentiality of documents held by some party be protected.

9. Of course, when the FOI Act specifies the criterion that the disclosure of the document be contrary to the public interest, as it does in s.36, it would be appropriate for the Administrative Appeals Tribunal to have regard to decisions of courts which have held in the circumstances of a case that it was in the public interest, or at least in the interest of justice, that disclosure occur. But if the Administrative Appeals Tribunal has regard to such authorities in that manner, it does so only because they provide a guide to the public interest, which is a criterion specified by the Act.

10. Although s.34(1)(c) deals with documents which would be likely to be the subject of public interest immunity, it is not founded upon or limited to any such principle. Section 34(1)(c) specifies its own criteria. They are the criteria to be applied. They are not ambiguous. It is not correct to read into such an unambiguous statutory provision words which the provision does not express and which are unnecessary to give full force and effect to the words which the statute uses. As Gibbs C.J. said in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1980-1981) 147 CLR 297 at 304:-

"If, when the section in question is read as

part of the whole instrument, its meaning is

clear and unambiguous, generally speaking

`nothing remains but to give effect to the

unqualified words': Metropolitan Gas Co. v

Federated Gas Employees' Industrial Union (1925)

[1925] HCA 5; 35 CLR 449, at p 455."

11. As the Tribunal found that the Submission satisfied the description in s.34(1)(c), the Tribunal should have been satisfied that the Submission was exempt. That should have been the end of the matter, for the Tribunal did not have power to order that an exempt document be released. Section 58(2) specifically provides:-

"(2) Where, in proceedings under this Act, it

is established that a document is an exempt

document, the Tribunal does not have power to

decide that access to the document, so far as it

contains exempt matter, is to be granted."

12. This limitation upon the powers of the Tribunal is sufficient to confirm that, when s.58(4) of the FOI Act specifies as the question to be determined the question whether there exist reasonable grounds for the claim, the section means what it appears to say, namely that the question is whether there exist reasonable grounds for the claim made by the certificate, which was in this case that the document was an exempt document under s.34 of the Act. A conclusive certificate under s.34(2) is a certificate signed by the Secretary of the Department of the Prime Minister and Cabinet certifying that a document is one of a kind referred to in a paragraph of s.34(1). The function of the Tribunal under s.58(4) is to ascertain whether there are reasonable grounds for that claim.

13. Senior counsel for the respondent submitted that s.58(4) poses the question whether, in all the circumstances of the case, it is reasonable not to release the document. Counsel submitted that the position of a document in respect of which there had been a conclusive certificate issued was in this respect different from that in which no certificate had been given. Counsel conceded that, because of s.58(2), if a document were exempt, the Tribunal could not order its release. He submitted, however, that the question under s.58(4) was not whether the document was exempt but whether, in all the circumstances of the case, it was reasonable not to release the document, or as he put it, to claim exemption. Counsel submitted that there were no reasonable grounds for the claim for exemption in the present case in the sense that it was unreasonable not to release the document, notwithstanding that the document was exempt. Counsel submitted further that, as the Administrative Appeals Tribunal had declared this to be the case, s.58A, whose terms I need not set out, would apply so that the claim for exemption would be deemed to be withdrawn and the document had to be released.

14. This was an ingenious argument and well and forcefully presented, but I do not accept it as s.58(4) poses for the Administrative Appeals Tribunal a different question, namely, the question whether there are reasonable grounds for the claim that the document meets the criteria for exemption.

15. I need not elaborate on what is the import of the term "reasonable grounds". In Re Porter and Department of Community Services and Health (1988) 14 ALD 403 at 405-6, Deputy President R.K. Todd said:-

"To be `reasonable', it is requisite only that

they be not fanciful, imaginary or contrived,

but rather that they be reasonable; that is to

say based on reason, namely agreeable to reason,

not irrational, absurd or ridiculous: see Re

Actors' Equity Association of Australia and

Australian Broadcasting Tribunal (No. 2) (1985) 7

ALD 584; 3 AAR 1; Attorney-General's Department

and Australian Iron and Steel Pty Ltd v

Cockcroft (1986) 12 ALD 468. It follows that it

is a heavy thing for the Tribunal to reject a

certificated claim."

The words of Deputy President Todd adequately convey the concept. No doubt, Deputy President Todd had in mind cases such as East v Repatriation Commission [1987] FCA 242; (1987) 74 ALR 518, in which Jenkinson, Neaves and Wilcox JJ. adopted similar expressions in relation to the term of "reasonable hypothesis" in s.120(3) of the Veterans' Entitlements Act 1986 (Cth).

16. The issue for the Administrative Appeals Tribunal was thus whether the view expressed by the conclusive certificate was reasonably open. To adapt the words of Starke J. in Federal Commissioner of Taxation v Broken Hill South Ltd [1941] HCA 33; (1941) 65 CLR 150 at 155:-

"This court (the Administrative Appeals Tribunal) has no

authority to decide whether the finding (certificate) is

correct, but only whether there is any material upon which

the tribunal (certifier) could reasonably so find (American

Thread Co. v Joyce (1913) 6 Tax Cas 1; Currie v Inland

Revenue Commissioners (1921) 2 KB 332)."

As the Tribunal found that the Submission contained an extract from an official record of the Cabinet, the Tribunal should have been satisfied that reasonable grounds existed for the claim made in the certificate.

17. Senior counsel for the respondent conceded that, in the event that his submission was not accepted, the Court should allow the appeal, set aside the decision of the Tribunal and substitute the decision which it ought to have made, namely a declaration that reasonable grounds existed for the claim that the Government's submission to the Anomalies Conference of the Remuneration Tribunal held on 19 November 1987 was an exempt document under the provisions of s.34(1)(c) of the Freedom of Information Act.

18. The appeal should be allowed and an order made accordingly. The respondent should pay the costs of the appeal.

I have had the advantage of reading the reasons for judgment of each of the other members of the court. I agree with them that the appeal must be allowed.

2. Sub-section 58(4) of the Freedom of Information Act 1982 commits to determination by the Administrative Appeals Tribunal "the question whether there exist reasonable grounds for that claim". The demonstrative pronoun refers to the antecedent clause, "that is claimed to be an exempt document". The sub-section does not indicate the maker of the claim. Sub-section 58(3) affords the information about the question to be determined that it is a question "in relation to" the certificate in force under whichever of sections 33, 33A, 34, 35 and 36 is in question. I would hesitate to understand the maker of "that claim" to be the maker of the certificate. In this case nothing seems to turn on a choice between the maker of the certificate and the agency or Minister to which or to whom the request for access was made, on which or on whom s.61 casts the onus of establishing that a decision given in respect of the request was justified or that the Administrative Appeals Tribunal should give a decision adverse to the applicant. But it is a more natural use of language to describe the agency or Minister as claiming that a document is exempt than so to describe the maker of a certificate under any of sections 33, 33A, 34, 35 and 36. And the present tense of "exist" in sub-sections 58(4), 58(5) and 58(5A) indicates that the question is to be determined by reference to the circumstances which exist at the time when the question is to be determined by the Tribunal, not as at the time when the certificate is made. That indication sorts well with the operation of sub-section 34(1A). If after a certification under sub-section 34(2) or 34(4) had been made the condition specified in paragraph 34(1A)(b) ceased, by reason of an official publication, to be fulfilled, s.34 would then cease to apply to the document, and the reasonable cause which had existed for the claim that the document was exempt when the certificate was signed would no longer exist. Other instances of the extinguishment of reasonable grounds for such a claim by the occurrence of an event which follows certification and precedes determination of the question may be imagined in relation to each of ss. 33, 33A, 35 and 36.

3. I agree in the conclusion the other members of the court have reached, that on the findings the Administrative Appeals Tribunal made - and which were not challenged - the only conclusion legally open to the Tribunal was that reasonable grounds existed at the date of its determination for the claim that the document in question was an exempt document by virtue of the operation of paragraph 34(1)(c) of the Freedom of Information Act 1982. I agree in the reasons Davies J. gives for that conclusion.

4. Counsel for the respondent did not advance any argument on the proper construction of paragraph 34(1)(d) of the Freedom of Information Act 1982 except the argument which has been summarised by Davies J. That paragraph seems to me not easy to interpret and without the benefit of full argument I prefer to express no opinion about it.

5. I propose that the appeal be allowed and that the decision of the Administrative Appeals Tribunal made on 22 March 1991 in the proceeding numbered V88/584 be set aside. I would order that the case be remitted to the Administrative Appeals Tribunal to be heard and determined according to law upon the evidence including any further evidence; and that the respondent pay the applicant's costs of the appeal. It will be for the Tribunal to determine the question posed by s.58(4) as at the time when it makes its determination, not as at 22 March 1991. If this court were to substitute for the decision set aside the decision which the Tribunal ought to have made, in response to the concession of counsel for the respondent, the substituted decision should, as I think, be so expressed as to make clear the date as of which it speaks, namely 22 March 1991.

This application is by way of an appeal from a decision of the Administrative Appeal Tribunal ("the Tribunal") constituted by a Deputy President of the Tribunal. The decision was made under the Freedom of Information Act 1982 ("the FOI Act") in respect of a document (referred to by the Tribunal and hereafter as "the submission") which was introduced by officers of the applicant Department of Industrial Relations, in a hearing of the Remuneration Tribunal which was considering whether there should be an increase in Parliamentary salaries.

2. The Remuneration Tribunal had been requested by the Minister for Industrial Relations to hold an "anomalies conference" of the type which had been conducted by the President of what was then the Conciliation and Arbitration Commission. The Minister's request apparently contemplated that the proposed "anomalies conference" would consider whether there existed special and extraordinary circumstances which would warrant the finding of an anomaly under pre-existing wage fixing principles promulgated by the Conciliation and Arbitration Commission.

3. The review of the evidence and findings of fact made by the Tribunal included the following paragraphs:

"The Minister proposed that invitations to participate in the conference

be extended to the Australian Council of Trade Unions ("the ACTU"), the

Confederation of Australian Industry ("The CAI"), the Commonwealth

Government, a representative of the Government Parliamentary Caucus and

a Parliamentary representative of the Federal Opposition. The

Remuneration Tribunal acceded to this request and a conference was then

convened for 19 November 1987. To that effect, a Cabinet meeting took

place on 17 November of the same year, from which a decision as to the

approaches the Commonwealth Government was to take at the conference was

made.

Following the Cabinet meeting, the respondent was instructed to prepare

a submission to the conference encompassing the decision of Cabinet

which reflected the Government position on the issues. Mr Bell, counsel

for the respondent, submitted that the submission includes extracts from

a submission to Cabinet (preceding the meeting) and which was the basis

of the Cabinet discussion, and the decision which resulted from the

Cabinet meeting."

"Mr Coghlan, who had been present at the conference, said in evidence

for the respondent that the Chairman of the Remuneration Tribunal had

made it clear at the beginning of the proceedings that the conference

was to be confidential, and that he expected that none of the parties

would disclose any of the submissions presented. Mr Coghlan also said

that had there been no commitment to confidentiality the conference

would not have gone ahead as neither the ACTU nor the CAI would have had

participated. It was Mr Coghlan's understanding that once the applicant

had lodged his Freedom of Information request, an officer of the

respondent contacted the CAI and the ACTU to confirm that in fact they

would not have been happy about disclosure of confidential submissions.

In his affidavit, Mr Coghlan had stressed that the present principles of

wage determination as enunciated by the Commission and those applying at

the time of the conference make specific provisions for anomalies

conferences to deal with anomalies or inequities. The conference had

been held, Mr Coghlan said, as a means of addressing a special and

extraordinary situation and did not address a claim for general

improvement in pay conditions of the members of parliament, nor were the

doctrines of comparative wage justice and maintenance of relativities

relied on to establish an anomaly. Mr Coghlan said that what resulted

from the conference was a recommendation from the participants that

there should be an inquiry, and that one of the matters that could be

inquired into was the relationship between electoral allowances and

salaries. He said that no recommendation or decision about what should

be done was made.

As to the submission, Mr Coghlan said the document was not a formal

submission in the sense of a document that is lodged with the Tribunal.

It was a submission to assist in presenting to the other participants

the views of the Government. In cross-examination Mr Coghlan stressed

that the submission was more than a formal submission; it was, in

accordance with the nature of the conference in which negotiating

positions were to be put, "a submission to assist us in putting to the

other members of the anomalies conference the views we thought, we knew,

the Government wanted us to put, in the knowledge that general positions

would be put by other parties to that conference and views would be

exchanged and there would be discussions and consultations and so on"

(Tr p 37). The submission was not distributed at the conference.

Mr Coghlan said the most important reason why the Government wants to

protect the confidentiality of the document is to protect `the viability

of a very important mechanism'; namely, the conduct of anomalies

conference by the Remuneration Tribunal."

4. The applicant had claimed that the submission was an exempt document for the purposes of the FOI Act and the Secretary of the Department of Prime Minister and Cabinet had issued a certificate in respect of it pursuant to s.34(2) of that Act. Sub-sections 34(1) and (1A) and (2) of the FOI Act provide:

"(1) A Document is an exempt document if it is:

(a) a document that has been submitted to the Cabinet for

its consideration or is proposed by a Minister to be so

submitted, being a document that was brought into

existence for the purpose of submission for

consideration by the Cabinet;

(b) an official record of the Cabinet;

(c) a document that is a copy of, or of a part of, or

contains an extract from, a document referred to in

paragraph (a) or (b); or

(d) a document the disclosure of which would involve the

disclosure of any deliberation or decision of the

Cabinet, other than a document by which a decision of

the Cabinet was officially published.

(1A) This section does not apply to a document (in this subsection

referred to as a "relevant document") that is referred to in paragraph

(1)(a), or that is referred to in paragraph (1)(b) or (c) and is a copy

of, or of part of, or contains an extract from, a document that is

referred to in paragraph (1)(a), to the extent that the relevant

document contains purely factual material unless:

(a) the disclosure under this Act of that document would

involve the disclosure of any deliberation or decision

of the Cabinet;

and

(b) the fact of that deliberation or decision has not been

officially published.

(2) For the purposes of this Act, a certificate signed by the

Secretary to the Department of the Prime Minister and Cabinet

certifying that a document is one of a kind referred to in a

paragraph of subsection (1) establishes conclusively, subject to the

operation of Part VI, that it is an exempt document of that kind."

5. Part VI of the FOI Act creates a mechanism for review of decisions made under the Act including a power conferred on the Tribunal by s.58 which so far as relevant includes, amongst others, the following sub-sections:

"(1) Subject to this section, in proceedings under this Part, the

Tribunal has power, in addition to any other power, to review any

decision that has been made by an agency or Minister in respect of the

request and to decide any matter in relation to the request that, under

this Act, could have been or could be decided by an agency of Minister,

and any decision of the Tribunal under this section has the same effect

as a decision of the agency or Minister.

(2) Where, in proceedings under this Act, it is established that a

document is an exempt document, the Tribunal does not have power to

decide that access to the document, so far as it contains exempt matter,

is to be granted.

(3) Where there is in force in respect of a document a

certificate under section 33, 33A, 34, 35 or 36, the powers of the

Tribunal do not extend to reviewing the decision to give the

certificate, but the Tribunal, constituted in accordance with

section 58B, may determine such question in relation to that

certificate as is provided for in whichever of subsections (4), (5)

and (5A) applies in relation to that certificate.

(4) Where application is or has been made to the Tribunal for the

review of a decision refusing to grant access to a document in

accordance with a request, being a document that is claimed to be an

exempt document under section 33, 33A, 34 or 35 and in respect of which

a certificate (other than a certificate of a kind referred to in

subsection (5A)) is in force under that section, the Tribunal shall, if

the applicant so requests, determine the question whether there exist

reasonable grounds for that claim."

6. Then s.58A provides, again so far as is relevant:

"(1) Where, in considering a question referred to in sub-section 58

(4), (5) or (5A) in relation to a document in respect of which a

certificate has been given, the Tribunal determines that there do not

exist reasonable grounds for the claim to which the question relates,

the appropriate Minister shall, not later than 28 days after the

determination of the Tribunal is communicated to him, make a decision:

(a) to revoke the certificate; or

(b) not to revoke the certificate.

(2) Where a Minister makes a decision under subsection (1) to revoke

a certificate:

(a) in a case where the certificate was given under subsection

33 (2), 33A (2), 34 (2) or (4) or 35 (2) or (4) - the claim

that the document to which the certificate relates is an

exempt document shall be taken, for the purposes of this

Act, to have been withdrawn; and

(b) in a case where the certificate was given under subsection

33 (4) or 33A (4) - the Minister shall, forthwith upon the

revocation of the certificate, inform the applicant of the

existence or non-existence of the document to which the

certificate relates.

(3) Where a Minister makes a decision under subsection (1) not to

revoke a certificate, he shall:

(a) cause notice in writing of the decision to be furnished to

the applicant forthwith; and

(b) cause a copy of the notice to be laid before each House of

the Parliament within 5 sitting days of that House after

the notice is so furnished.

(4) A notice under subsection (3) shall state the findings of the

Minister giving the notice on any material question of fact, the

material on which those findings were based, and the reasons for the

decision.

(5) A Minister is not required to include in a notice under

subsection (3) 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

under section 33, 33A, 34, 35 or 36."

7. The learned Deputy President discerned a difference (correctly in my view) between the power conferred on the Tribunal by s.58(1) and the power to be found in sub-ss 58(3) and (4). He said:

"The consequence of the application of these two powers differ, in that

while with the first, the Tribunal can determine whether a document is

an exempt document or whether it is not (in which case access to the

document follows), with the second the power of the Tribunal does not go

beyond determining whether reasonable grounds exist for the claim that

the document is an exempt document, and not whether the document is

exempt (See Re Waterford and Director-General of Health (No. 2) 5 ALN

217. If the Tribunal finds that reasonable grounds exist, then that is

the end of the matter, the document is an exempt document. If the

Tribunal finds that reasonable grounds do not exist then the provisions

of s.58A apply."

8. After referring to some passages from the judgment of Northrop J. in Department of Industrial Relations v Forrest (1990) 21 FCR 93 the learned Deputy President concluded:

"It follows that the Tribunal has to concern itself only with the

issue of whether there exist reasonable grounds for the claim that

the document is an exempt document."

9. That conclusion was reiterated in a later passage in the Tribunal's reasons which was in these terms:

"Notwithstanding the invitation of the applicant to give

consideration to all the issues arising out of this application,

(public interest being one of them), the Tribunal is limited by the

statute in the present case to consider whether the claim that the

submission is an exempt document within the parameters of paras

34(1)(c) and (d) is well founded.

The issues before this Tribunal are therefore limited to finding

whether there are reasonable grounds for the claim that the

submission is a document which firstly contains an extract from an

official record of Cabinet which does not contain pure factual

material, or secondly, would involve the disclosure of the

deliberation of Cabinet that took place on 17 November 1987, and of

a decision of Cabinet made on the same date, being a document other

than a document by which a decision of the Cabinet was officially

published."

10. After concluding, adversely to the respondent, that the submission embodied or reflected a deliberation or decision of the Cabinet, the Deputy President continued:

"As to whether the submission officially published the decision

taken by Cabinet at the meeting, it is a fact that the submission

was presented to the participants to the conference as the official

position of the Government; that is, the content of the submission

encompassing what was discussed by Cabinet and the Cabinet decision

was disclosed to a third party; namely, the Chairman of the

Remuneration Tribunal, representatives of the ACTU, the CAI, the

Government Parliamentary Caucus and a member of the Federal

Parliamentary Opposition.

The question then is, is it reasonable to claim that disclosure of

the submission would involve the disclosure of a deliberation on

decision of Cabinet when as a matter of fact disclosure has already

occurred? I am of the view it is not. If the confidentiality of

the conference, whatever that may mean (see Department of Industrial

Relations v Forrest and Another (supra) at 102,) helped to preserve

the confidentiality of the submission, its use in these

circumstances did not amount to ordinary and reasonable means of

giving effect to Cabinet privilege. On the contrary, once the

submission was disclosed the privilege of Cabinet confidentiality

ceased to exist.

There was evidence that the anomalies type conference was conducted

by the Remuneration Tribunal in exercise of the power contained in

para 11(1)(a) of the Remuneration Tribunals Act 1973. It was

concluded after reaching what may without any disrespect be called a

`gentlemen's agreement' that what was to be said at the conference

should be confidential to the participants. Nevertheless, once the

submission was disclosed all that prevented the participants from

disclosing the content of the submission was the agreement. If, as

Mr Coghlan said in evidence, discussions and consultations were to

take place, it is difficult to envisage a situation where the

representatives of the ACTU, the CAI, the Government Parliamentary

Caucus and the Parliamentary Opposition could negotiate of their own

accord without consulting with their respective executive bodies or

colleagues to determine their attitude to the submission. Again,

there is no evidence of any disclosure outside the conference, nor

was there any evidence that the Remuneration Tribunal is vested with

powers in relation to the confidentiality of the conference.

In Anderson and Australian Federal Police [1986] AATA 79; 4 AAR 414 at 442, Deputy

President Hall said that para 34 (1)(d) 'only protects a document if

the disclosure of the content of the document would involve the

disclosure of any deliberation or decision of Cabinet". Northrop J.

in Department of Industrial Relations v Forrest and Another (supra)

at 102 expressed the view that the fact that the document was

prepared for presentation at a conference attended by a wide range

of persons (...) might well be a factor suggesting there existed no

reasonable grounds for the claim that the document was an exempt

document under s.34'.

I have come to the view that as the content of the submission has

already been disclosed, the provision of para 34(1)(d) has no

applicability in this case as the disclosure of the deliberation or

decision of the Cabinet contained in the submission has already

taken place.

As to whether it is reasonable to claim that the submission is an

exempt document as a document which contains extracts from an

official record of Cabinet, the Tribunal is mindful of both the

language of para 34(1)(c), and the object of the Act. Having had

the benefit of hearing the evidence of Mr Templeton, who was present

at the Cabinet meeting, and after examining the submission in

exercise of the entitlement conferred by the provisions of s.58E of

the Act I have concluded that Cabinet minute 10499 is a record of

Cabinet and the submission contains extracts from that minute.

Clearly within the object of the Act "to extend as far as possible

the right of the Australian community to access to information in

possession of the Government of the Commonwealth" is the requirement

that the confidentiality ascribed to Cabinet records, deliberations

or decisions of Cabinet be protected from disclosure to preserve the

framework of Government; as Blackburn CJ. succinctly put it in

Whitlam v Australian Consolidated Press Ltd 73 FLR 414 at 422:

"Cabinet secrecy is an essential part of the structure of government

which centuries of political experience have created. To impair it

without a very strong reason would be vandalism. The wanton

rejection of the fruits of civilisation."

However, in the present case, the Government forsook this privilege

when it allowed the submission, containing an extract from a record

of Cabinet to be disclosed at the conference. As I have said

earlier, the conference did not fall within the ordinary and

reasonable scope of Cabinet privilege. In these circumstances the

claim that the submission, which has already been disclosed to the

participants at the conference, is an exempt document under the

provisions of para 34(1)(c) of the Act is artificial and cannot be

sustained.

For these reasons the Tribunal decides that reasonable grounds do

not exist for the claim that the Government submission to an

anomalies conference of the Remuneration Tribunal held on 19

November 1987 is an exempt document under the provisions of paras

34(12)(c) or (d) of the Act."

11. In my view, it is erroneous to suggest that the reasonableness of a claim that a document is prima facie exempt by virtue of s.34(1)(c) as within one of the categories of document there described, or by virtue of s.34(1)(d) because its disclosure would involve the disclosure of an official record or a deliberation or decision of the Cabinet, falls to be determined by reference to some pre-existing, different, disclosure of the same document. I consider that the nature of the disclosure contemplated by the qualification in para (a) of s.34 (1A) is indicated by the words "under this Act" which follow the word "disclosure" where it first appears. On this view, the fact that a document has been disclosed in some limited or conditional way in the belief, however naive, that it would not find its way into the public domain, is irrelevant to the question of whether there exist reasonable grounds, within the meaning of s.58(4) of the FOI Act, for the claim that the document is exempt under s.34(1)(c) or (d).

12. It follows that I reject the attractively presented argument of Mr Dowling QC for the respondent that s.58(4) of the FOI Act is concerned with a claim to be entitled to rely on the provisions of the Act which exclude or limit rights of access to exempt documents; in other words that it erects a test of whether it is reasonable in all the circumstances to maintain that claim.

13. It is true that Northrop J. in Department of Industrial Relations v Forrest (supra) suggested, at 102, that the fact that a submission of the kind here in question "was prepared for presentation at a conference attended by a wide range of persons .... might well be a factor suggesting there existed no reasonable grounds for the claim that the document was an exempt document under s.34." However, a careful reading of that passage in its context makes clear that preparation for, or actual presentation to, a widely attended conference does not automatically negate the existence of reasonable grounds for a claim that the document remains exempt under e.g. s.34(1) (c) or (d).

14. On the facts found by the learned Deputy President, the only disclosure of the submission which has occurred was not a disclosure under the FOI Act within the meaning of s.34 (1A) (a) or of the same kind and extent. It was not to the point to consider, as the learned Deputy President did, whether Cabinet "forsook" the privilege which its records enjoy at common law, when it allowed the submission to be disclosed at the so-called anomalies conference.

15. For these reasons, I consider that the applicant has demonstrated an error of law in the Tribunal's conclusion that there did not exist reasonable grounds for the claim that the submission was an exempt document under s.34. Since there are no further findings of fact which could be made by the Tribunal bearing on the question in issue it is appropriate to make orders in the form proposed by Davies J.