Administrative Appeals Tribunal of Australia|1985-01-16|Before: Mrs J

Re Warwick Bracken and Minister of Education and Youth Affairs (No 3) [1985] AATA 8 (16 January 1985)

And: MINISTER OF STATE FOR EDUCATION AND YOUTH AFFAIRS (No. 3)

Freedom of Information - documents subject to "conclusive" certificate pursuant to s.33A - publication of Tribunal's Reasons for Decision restricted - revocation of "conclusive" certificate - access granted in form acceptable to applicant - inconsistent with object of Freedom of Information Act 1982 to maintain restriction on publication of Reasons for Decision - order restricting publication rescinded

The Tribunal rescinds the Orders of 7 November and 5 December 1984 restricting publication of its full Reasons for Decision in this matter.

At the time when I gave my original decision in this matter on 7 November 1984, I considered it necessary to restrict publication of my full Reasons for Decision in the manner set out in para 5 of that decision, subject to liberty to apply. Except for a minor variation of that Order, which I made with the consent of the parties on 5 December 1984, the Order still stands. Because of the matters canvassed in my Supplementary Reasons for Decision handed down on 5 December 1984, it was necessary for me to impose similar restrictions on the publication of those Reasons. Those restrictions still stand.

2. My reasons for making the original order restricting publication were fully canvassed in paras 1 to 11 of my original decision. Those paragraphs were published without restriction. At a further hearing before me on 23 November 1984, Mrs J. Bonsey, who appeared on behalf of the Minister, placed certain submissions before me regarding the powers of the Tribunal with respect to wider publication of the Tribunal's reasons. I agreed, however, at Mrs Bonsey's request, to defer ruling on those submissions until there had been an opportunity to refer the matter to the Minister.

3. The matter came on for a brief hearing before me again on 20 December 1984. Mrs Bonsey then informed me that, although an appeal against my original decision on the merits of this application for review had been lodged on behalf of the Minister with the Federal Court, that appeal was to be discontinued. I was further informed that, in accordance with the recommendation made by me in my original decision, the Minister had decided to revoke the "conclusive" certificate signed by her pursuant to s.33A of the Freedom of Information Act 1982 ("the Act") and to grant access to the documents requested by the applicant except to the extent that those documents had been found to be exempt or to contain exempt matter appropriate for deletion.

4. I was told that access on that basis was acceptable to the applicant and that the matter could therefore be regarded as at an end, subject only to the outstanding question of publication of the reasons for decision. Mrs Bonsey informed me that it was the Minister's view that, if possible, the whole of my original reasons for decision and of my supplementary reasons should be published without restriction.

5. In view of the revocation by the Minister of her conclusive certificate, I am, I think, relieved of the necessity to consider further the reasons canvassed by me in paras 1 to 11 of my original decision or to deal with the submissions advanced by Mrs Bonsey at the resumed hearing on 23 November 1984.

6. The restrictions on publication were imposed by me because I felt that it was necessary to do so, having regard to the provisions of s.58C of the Act, which controls the conduct of hearings in conclusive certificate cases. It is the fact that a conclusive certificate is in force in relation to the documents to which access is sought that attracts the restrictive requirements of that section. Now that the certificate has been revoked and access to the documents has been granted in a form acceptable to the applicant, the basis for the original restrictions on publication no longer exists.

7. In these circumstances it would, I think, be inconsistent with the object and intention of the Act that restrictions upon publication of the full reasons for decision should continue to be maintained unless, in any respect, it was necessary to do so having regard to the provisions of s.63(2)(a) of the Act which applies generally to published reasons for decision whether a conclusive certificate is in existence or not. Section 63(2)(a) provides that:-

the Administrative Appeals Tribunal Act 1975 -

(a)the Tribunal shall not, in its decision, or

reasons for a decision, in a matter arising

under this Act, include any matter ... of a

kind referred to in sub-section (1); ..."

(The "matter" referred to is "exempt matter" -

see definition in s.4).

8. Mrs Bonsey informed me that although the general nature of the information for which exemption had been claimed was canvassed in my reasons for decision, the Minister did not consider that "exempt matter" would be disclosed by publishing the full reasons. Accordingly the Minister had no objection to such publication. Mr Waterford, who appeared for the applicant, said that his client was also anxious to see the full reasons published.

9. In the circumstances, I propose to rescind my previous orders restricting publication of my reasons for decision handed down on 7 November and 5 December 1984 respectively. As a consequence, both sets of reasons, together with these reasons, may be published without restriction.

Information Act 1982

Appeals Tribunal Act 1975

Re Warwick Bracken and Minister of Education and Youth Affairs (No 3) [1985] AATA 8 (16 January 1985)

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Re Warwick Bracken and Minister of Education and Youth Affairs (No 3) [1985] AATA 8 (16 January 1985)

Legislation Cited (2)