"Commonwealth of Australia
Freedom of Information Act 1982
CERTIFICATE UNDER SECTION 33A(2)
This certificate is issued in relation to a request made to the predecessor of the Department of Employment, Workplace Relations and Small Business under the Freedom of Information Act 1982 ('the Act') by Lindsay Tanner M.P. dated 17 December 1997 for access to certain reports 'arising from consultancies on waterfront reform that were awarded to [certain specified parties]'. Decisions on the request are the subject of an Application for Review to the Administrative Appeals Tribunal made by Mr Tanner, being proceeding number VG98/473.
For the purposes of subsection 33A(2) of the Act and pursuant to an instrument of delegation under section 33A(6) of the Act signed by the responsible Minister, I, PETER ROGER SHERGOLD, Secretary of the Department of Employment, Workplace Relations and Small Business, having examined each of the documents listed in the attached schedule ('the documents'), being documents covered by the abovementioned request made by Mr Tanner, hereby certify that I am satisfied that:-
(a) Each of the documents is an exempt document for a reason referred to in subsection 33A(1)(a) of the Act, namely that the disclosure of the document would, or could reasonably be expected to, cause damage to relations between the Commonwealth and one or more States or Territories; and
(b) Each of the documents is an exempt document for a reason referred to in subsection 33A(1)(b) of the Act, namely that disclosure of the document would divulge information or matter communicated in confidence by or on behalf of the Governments of certain States and Territories and certain authorities of certain States and Territories to persons receiving the communications on behalf of the Commonwealth; and
(c) Neither of the documents is a document containing matter the disclosure of which under the Act would be, on balance, in the public interest.
Dated this 30th day of December 1998.
[signed] Peter R Shergold
Secretary of the Department of Employment
Workplace Relations and Small Business"
The schedule to this certificate listed a document as "Document entitled 'Durable Reform - Waterfront/Maritime/Offshore: A Report to the Minister for Transport and Regional Development, by Dr Stephen Webster, dated 1 October 1997 [sic]", together with a draft of it, and an attachment to the report "being a report relating to port services, by D. M. Webb, 16 September 1997".
33 The other certificate was given under s 36(3) of the Act in the following terms:
"Commonwealth of Australia
Freedom of Information Act 1982
CERTIFICATE UNDER SECTION 36(3)
This certificate is issued in relation to a request made to the predecessor of the Department of Employment, Workplace Relations and Small Business under the Freedom of Information Act 1982 ('the Act') by Lindsay Tanner M.P. dated 17 December 1997 for access to certain reports 'arising from consultancies on waterfront reform that were awarded to [certain specified parties]'. Decisions on the request are the subject of an application for review to the Administrative Appeals Tribunal made by Mr Tanner, being proceeding number V98/473.
For the purposes of subsection 36(3) of the Act and pursuant to an instrument of delegation under subsection 36(8) of the Act signed by the responsible Minister, I, PETER ROGER SHERGOLD, Secretary of the Department of Employment, Workplace Relations and Small Business, having examined each of the documents listed in the attached Schedule ('the documents'), being documents covered by the abovementioned request made by Mr Tanner, and having satisfied myself that the documents are documents to which paragraph 36(1)(a) of the Act applies, certify that I am satisfied that the disclosure of the documents, save those parts thereof expressly listed as exceptions in the third column of the Schedule, would be contrary to the public interest on the grounds that:
(i) Disclosure would be prejudicial to ongoing necessary reforms of the waterfront, offshore and maritime sectors of Australian industry.
(ii) Disclosure would have adverse implications for the ongoing satisfactory conduct of the affairs of various Commonwealth and State instrumentalities, commercial organisations and individuals referred to in the documents, including the risk of industrial action.
(iii) Disclosure would prejudice the ability of the Commonwealth to manage carefully the process of achieving reform of the waterfront, offshore and maritime sectors and would therefore impact adversely on the efficiency and productivity of Australian industry and the welfare of the Australian community generally.
(iv) Disclosure would reveal opinion, advice and recommendation obtained in the course of the development of high level government policy on sensitive issues and used in discussions at Cabinet level.
(v) Disclosure would lead to confusion and unnecessary debate resulting from the revelation of possibilities and options proposed by the consultants.
(vi) Disclosure would tend to exacerbate the sensitive industrial relations situation in the waterfront, offshore and maritime sectors of Australian industry and may undermine the settlement of the major industrial dispute which badly disrupted Australia's wharves during 1998.
(vii) Disclosure would reveal frank consultations undertaken in confidence for the purposes of deliberations on waterfront, offshore and maritime reform. Disclosure would involve a breach of faith with the Commonwealth and State instrumentalities, commercial organisations and individuals consulted and would diminish the prospects of conducting necessary similar consultations in the future.
(viii) Disclosure would not fairly disclose the reasons for certain decisions later taken and would involve unfairness to the persons involved as well as prejudice to the integrity of the decision making process.
(ix) Disclosure would cause damage to relations between the Commonwealth and certain States and Territories because it would involve the revelation of confidential communications with those States and Territories and because of the sensitivity of matters discussed in the documents in the context of Commonwealth/State relations.
(x) Disclosure would reveal confidential legal advice obtained by or on behalf of the Commonwealth, whereby the public interest principles underlying the doctrine of client legal privilege would be violated.
Dated this 30th day of December 1998.
[signed] Peter R Shergold
Secretary of the Department of Employment
Workplace Relations and Small Business"
The schedule lists various reports and other documents dealing with ports and waterfront reform, including an opinion of senior counsel and a report from solicitors.
34 There was a background to the issue of these certificates. By a request dated 17 December 1997, the request mentioned in the certificates, the respondent sought access under the Act to a number of reports dealing with waterfront and maritime reform. Following the partial denial of this request, and a further decision on internal review, the respondent made, on 30 April 1998, an application to the Administrative Appeals Tribunal for review of the latter decision, so far as it denied him access. On 27 August 1998, the responsible minister delegated to the principal officer of the Department of Employment, Workplace Relations and Small Business, the appellant, his relevant powers under ss 33A(2) and 36(3) of the Act.
35 After the issue of the certificates, the appellant furnished, in some detail, his reasons for deciding to issue them.
36 On 15 February 1999, the respondent instituted a proceeding in the Court seeking judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), or the Judiciary Act 1903 (Cth), of the appellant's decisions to issue the two certificates. On 2 December 1999, a proposed Further Amended Application for an Order of Review was filed, and the matter was dealt with by consent on the footing that this represented the respondent's claim. It contains grounds which may be summarised as follows:
A - Natural Justice
It is alleged in reliance on s 5(1)(a) of the Administrative Decisions (Judicial Review) Act (the Judicial Review Act) that the appellant "breached the rules of natural justice by making the decisions without affording the [respondent] any opportunity to be heard in relation to them", and that there was a reasonable apprehension the appellant was biased, or that he was actually biased.
B - Lack of Jurisdiction and Authority
It is alleged in reliance on s 5(1)(c) and (d) of the Judicial Review Act that the "power to issue a certificate under s 33A(2) of the [Freedom of Information] Act does not arise in respect of matter in a document to which s 33A(5) applies"; that whether the disclosure of a document would be in the public interest is a precondition of the power to issue the certificate and a jurisdictional fact; that the certificate "extends to matters in the documents to which s 33A(5) applies" and that "[e]ach of the matters contained in the s 33A documents are [sic] matters the disclosure of which under the [Freedom of Information Act] would, on balance, be in the public interest"; that the power to issue a certificate under s 36(3) in relation to a document to which s 36(1)(a) applies is affected by s 36(5); that "the existence of purely factual material is a jurisdictional fact the determination of which is a pre-condition [sic] to the exercise of power under s 36(3)"; that s 36 "applies only to so much of the documents or parts thereof which constitute the opinion, advice or recommendation of those persons involved in the deliberative processes contemplated by s 36(1)(a)" and that the s 36 certificate "extends to matters in the documents which are not opinion, advice or recommendation at all and/or are not opinion, advice or recommendation of the kind identified".
C - Improper Exercise of Power
It is alleged in reliance on s 5(1)(e) of the Judicial Review Act that the decisions were an improper exercise of power because the appellant failed to take relevant considerations into account; took irrelevant considerations into account; exercised his powers for a purpose or purposes other than the purpose or purposes for which each power was conferred; exercised his discretionary powers in bad faith; exercised his personal discretionary powers at the direction or behest of another; exercised his powers so unreasonably that no reasonable person could have so exercised the powers; and otherwise exercised his powers in a way that constitutes abuse of them.
D - No Evidence or Other Material
It is alleged in reliance on s 5(1)(h) of the Judicial Review Act that there was no evidence or other material to justify the making of the decisions in that there was none on which the appellant could reasonably have been satisfied of the matters certified.
E - Error of Law
It is alleged in reliance on s 5(1)(f) of the Judicial Review Act that the decisions involved an error of law in that the appellant misconstrued and misapplied the test of the "public interest" in ss 33A(2)(b) and (5) and 36(1)(b) and (3), thereby misinstructing himself as to the nature of the task required by the provisions.
F - Otherwise Contrary to Law
It is alleged in reliance on s 5(1)(j) of the Judicial Review Act as follows:
"The [respondent] refers to the matters set out at Parts A to E and contends that by engaging in the conduct and by making the decisions the [appellant] acted otherwise contrary to law in terms of [section] 5(1)(j) … of the Act".
Whatever may be said of the allegations made under the headings A to E, what is alleged under heading F is plainly not a good pleading of any allegation that the decisions were "otherwise" contrary to law.
37 On 16 March 2000, it was ordered, inter alia, that there be determined, separately from and before any other questions, the question whether the decisions of the appellant that he was satisfied the documents referred to in the certificates met the relevant criteria, and that the certificates should be signed by him, are amenable to review by the Court "as sought in the proposed further amended application for review". The affirmative answer given at first instance is the subject of the appeal.
38 A polemicist might claim the foundation of the Freedom of Information Act is the proposition that the general availability of information is a self-evident good, essential to the functioning of democratic institutions. In polemical mode, the poet and statesman Milton, making an appeal to the British Parliament to allow the widest dissemination of knowledge and opinion, supported the first part of this proposition in the Areopagitica: "Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties"(emphasis added). But the practical concerns of the law are not favourable to such an unqualified proposition, as may be illustrated by the recent decision of the House of Lords in Attorney-General v Blake [2000] 3 WLR 625. When a Freedom of Information Bill was signed into law in the United States in 1966 (it seems that Sweden had already adopted such a law early in the 19th century: Guy Braibant, Le droit administratif français, 2 ed (1988), 426), President Johnson said (Charles H Koch, Jr, Administrative Law and Practice, vol 2 (1985), 246 footnote 16):
"This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest."
This statement expressed the principle in terms that excepted what the security of the nation did not permit, and what could not be revealed without injury to the public interest. In Australia, the Freedom of Information Act has been authoritatively described as striking a balance between competing public interests. The joint judgment of Bowen CJ and Fisher J in The News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 at 66 states:
"In recognition of the delicate balance between the public's interest in knowing and in expressing its opinion and the need in some cases to protect confidentiality and privacy, the Act provides a wide range of exemptions … .
It has been suggested that the form of s 3 is such that the court when considering rights of access should lean towards a wide interpretation of the provisions of the Act but when considering exemptions should lean towards a narrow interpretation. ...
In construing our Act we do not favour the adoption of a leaning position. The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved. Each is to be interpreted according to the words used, bearing in mind the stated object of the Act."
With the agreement of Woodward J, I commented on this passage in Arnold v Queensland (1987) 73 ALR 607 at 626:
"In my view it is too late to regard s 3 as introducing any bias into the construction of the exemptions in the Freedom of Information Act. They are as much a part of the Act as s 11, which confers the right to access expressly subject to them and as a right relating to documents other than those which are exempt."
Particularly in relation to s 33A, I added a reference to "the delicate balance which it maintains between the public interest in access to information and the requirements of inter-governmental relations within the Australian federation", citing Professor Roscoe Martin (Where Governments Meet: Emerging Patterns of Intergovernmental Relations (1967)) for the proposition that "the federal system itself … depends for its viability on constructive relations among governments". The same view of the proper approach to the construction of the Freedom of Information Act was taken by a unanimous Full Court (Davies, Wilcox and Einfeld JJ) in Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 114-115. Very similar is the unanimous view of the Court of Appeal of Victoria (Tadgell, Phillips and Batt JJA) in Department of Premier and Cabinet v Hulls [1999] VSCA 117 at para 55:
"Now, while there may well be a public interest in the disclosure of documents held by ministers and agencies (as was recognised by Mason CJ in Esso Australia Resources [Limited v Plowman (1995) 183 CLR 10] at 31-32), it is the FOI Act which is Parliament's express declaration of the extent to which such disclosure is in the public interest. The Act contains exceptions, exemptions and discretions, and each is entitled to full weight."
Cf the accommodations of conflicting interests involved in anti-discrimination statutes, to which Brennan CJ and McHugh J referred in IW v The City of Perth (1997) 191 CLR 1 at 15.
39 The nature of the balance on which the whole of the Freedom of Information Act depends is most clearly revealed by its central affirmation in s 11(1):
"Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document."
40 The classes of exempt documents referred to in s 11 are defined in Part IV, beginning with s 32. Section 32, as has been remarked in the authorities (see Austin v Deputy Secretary, Attorney-General's Department (1986) 67 ALR 585 at 589; Arnold v Queensland at 625-626), shows that Parliament intended each exemption to be given its full weight. The section provides:
"A provision of this Part by virtue of which documents referred to in the provision are exempt documents:
(a) shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents; and
(b) shall not be construed as not applying to a particular document by reason that another provision of this Part of a kind mentioned in paragraph (a) also applies to that document."
41 It is in this setting that s 33A, the first of the provisions with which we are directly concerned in this case, must be understood. As was explained in Arnold v Queensland at 627, this section was carved out of s 33, which previously included a provision similar to but not the same as the present s 33A, by an amendment to the Act by Act No 81 of 1983. Having regard to this history, it is desirable to set out part of s 33 before setting out s 33A in full, as follows:
"33. (1) A document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to:
(i) the security of the Commonwealth;
(ii) the defence of the Commonwealth; or
(iii) the international relations of the Commonwealth; or
(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
(2) Where a Minister is satisfied that a document is an exempt document for a reason referred to in subsection (1), he may sign a certificate to that effect (specifying that reason) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the document is an exempt document referred to in subsection (1).
…
33A. (1) Subject to subsection (5), a document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or
(b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
(2) Where a Minister is satisfied that a document:
(a) is an exempt document for a reason referred to in subsection (1); and
(b) is not a document containing matter the disclosure of which under this Act would be, on balance, in the public interest;
the Minister may sign a certificate to that effect, specifying that reason.
(2A) Subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the document:
(a) is an exempt document referred to in subsection (1); and
(b) does not contain matter the disclosure of which under this Act would, on balance, be in the public interest.
(3) Where a Minister is satisfied as mentioned in subsection (2) by reason only of matter contained in a particular part or particular parts of a document, a certificate under that subsection in respect of the document shall identify that part or those parts of the document as containing the matter by reason of which the certificate is given.
(4) Where a Minister is satisfied that information as to the existence or non-existence of a document as described in a request would, if contained in a document:
(a) cause the last-mentioned document to be an exempt document for a reason referred to in subsection (1); and
(b) not cause the last-mentioned document to be a document containing matter the disclosure of which under this Act would be, on balance, in the public interest;
the Minister may sign a certificate to that effect, specifying that reason.
(4A) Subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the document:
(a) would be an exempt document referred to in subsection (1); and
(b) would not contain matter the disclosure of which under this Act would, on balance, be in the public interest.
(5) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.
(6) The responsible Minister of an agency may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to the principal officer of the agency his powers under this section in respect of documents of the agency.
(7) A power delegated under subsection (6), when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the responsible Minister.
(8) A delegation under subsection (6) does not prevent the exercise of a power by the responsible Minister."
42 Following s 33A, Part IV contains s 34, dealing with Cabinet documents; s 35, dealing with Executive Council documents; and then s 36, which is headed "Internal working documents". Section 36 provides:
"(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.
(2) In the case of a document of the kind referred to in subsection 9(1), the matter referred to in paragraph (1)(a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).
(3) Where a Minister is satisfied, in relation to a document to which paragraph (1)(a) applies, that the disclosure of the document would be contrary to the public interest, he may sign a certificate to that effect (specifying the ground of public interest in relation to which the certificate is given) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the disclosure of that document would be contrary to the public interest.
(4) Where a Minister is satisfied as mentioned in subsection (3) by reason only of matter contained in a particular part or particular parts of a document, a certificate under that subsection in respect of the document shall identify that part or those parts of the document as containing the matter by reason of which the certificate is given.
(5) This section does not apply to a document by reason only of purely factual material contained in the document.
(6) This section does not apply to:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a prescribed body or organization established within an agency; or
(c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
(7) Where a decision is made under Part III that an applicant is not entitled to access to a document by reason of the application of this section, the notice under section 26 shall state the ground of public interest on which the decision is based.
(8) The responsible Minister of an agency may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to the principal officer of the agency his powers under this section in respect of documents of the agency.
(9) A power delegated under subsection (8), when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the responsible Minister.
(10) A delegation under subsection (8) does not prevent the exercise of a power by the responsible Minister."
43 Subsequent sections in Part IV provide for exemptions in respect of documents affecting enforcement of law and protection of public safety; documents to which secrecy provisions of enactments apply; documents affecting financial or property interests of the Commonwealth; documents concerning certain operations of agencies; documents affecting personal privacy; documents subject to legal professional privilege; documents relating to business affairs etc; documents relating to research; documents affecting national economy; documents containing material obtained in confidence; documents the disclosure of which would be contempt of Parliament or contempt of Court; certain documents arising out of companies and securities legislation; and electoral rolls and related documents.
44 The Act contains further provisions in respect of certificates under ss 33A and 36, and under sections 33, 34 and 35 which also provide for the furnishing of certificates. Section 36A authorises regulations to be made prescribing maximum periods "during which such certificates may remain in force", and "the manner in which such certificates may be revoked before the end of such periods". Significant provisions about certificates are included in Part VI, which is headed "REVIEW OF DECISIONS". Provision is made, in that Part (by s 54), for internal review of certain decisions under the Act. Provision is also made (by s 55) for review by the Administrative Appeals Tribunal of decisions refusing to grant access to a document in accordance with a request, as well as of certain other decisions. Provision is made as well (by s 57) for complaints to the Ombudsman. The powers of the Administrative Appeals Tribunal, in proceedings involving the review of decisions under the Freedom of Information Act, are set out in ss 58 et seq. For present purposes, it is important to note the effect on those powers of the issue of a certificate of the kind here in question. Section 58(3), (4) and (5) provide as follows:
"(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.
(5) 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 36 and in respect of which a certificate is in force under that section, the Tribunal shall, in a case where it is satisfied that the document is a document to which paragraph 36(1)(a) applies, if the applicant so requests, determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest."
Section 58A provides:
"58A. (1) Where, in considering a question referred to in subsection 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) any claim made in the certificate is to 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 or she 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; and
(c) on having caused a copy of the notice to be laid in the House in which
the Minister sits, read the notice to the House.
(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.
(6) A Minister is not required to include in a notice under subsection (3) information as to the existence or non-existence of a document or the existence or non-existence of a state of fact if that information would, if included in a document of an agency, cause that last-mentioned document to be an exempt document under section 33, 33A, 34 or 35.
(7) Section 13 of the Administrative Decisions (Judicial Review) Act 1977
does not apply to a decision of a Minister under this section.
(8) Nothing in this section shall be taken to imply that a certificate under subsection 33, 33A, 34, 35 or 36 may not be revoked otherwise than in pursuance of a decision under subsection (1).
(9) For the purposes of this section, "appropriate Minister" means:
(a) in relation to a document in respect of which there is a certificate in force under section 33, 33A or 36 - the Minister who gave, or whose delegate gave, that certificate; or
(b) in relation to a document in respect of which there is a certificate in force under section 34 or 35 - the Prime Minister."
Section 58B provides for the Tribunal to be constituted specially by three presidential members, or by a presidential member, in a case under s 58(4) or (5). Section 58C makes special provision with respect to the privacy of proceedings involving certificates and to ensure that the contents of documents not be disclosed. Section 58E makes further and special provision in relation to the production to the Tribunal of a document the subject of a certificate, in order to ensure that such production does not result in disclosure of its contents.
45 Although much of the argument appeared to present the appeal as one concerned with issues of administrative and constitutional law, the key to the case is really a question of statutory construction. That question may be approached on at least two levels. At one level, it is a simple matter of the meaning of the sections which provide that, "subject to the operation of Part VI", the certificate "establishes conclusively" the matters to which it relates. At another level, having regard to the entire statutory context of the provisions, there is involved the correct understanding of a complicated set of provisions enacted, as it seems to me, on the basis that indeed a certificate will be conclusive.
46 With regard to the language in which ss 33A(2A) and 36(3) are expressed, it is necessary to note that the words "so long as it remains in force", in each provision, do not cut down the effect of a certificate while it remains in force; they simply recognize that it may not do so for ever, having regard to s 36A and s 58A(1), (2) and (8). For as long as the certificate remains in force, the only qualification the statute places upon its establishing conclusively what it certifies is that it does so "subject to the operation of Part VI". But that qualification seems to me very significant. Had the Parliament intended a certificate to be altogether beyond challenge, it could have relied on the absoluteness of the expression "establishes conclusively", left unqualified. Parliament did not intend that. It intended to permit the very limited challenge in the Administrative Appeals Tribunal for which s 58 provides, subject to s 58A; and so it included the words "subject to the operation of Part VI", in which those sections are contained. It did not go on to provide: "and subject to judicial review", nor did it make special provision in respect of the consequences of the procedures of judicial review, as it did in respect of the consequences of Tribunal procedures in ss 58C, 58E, 64 and 65. If, despite the presence in the Act of Part VI, it was thought necessary, or at least desirable, to include in ss 33A and 36, and other sections authorizing the issue of certificates, the qualification on their conclusiveness "subject to the operation of Part VI", it is difficult to see any reason why a corresponding qualification was not expressed in relation to judicial review, unless in truth Parliament did not contemplate the issue of conclusive certificates being subject to judicial review.
47 A certificate which was itself liable to be overturned could not conclusively establish anything. But, subject only to Part VI, the Parliament has said these certificates do establish conclusively certain matters. This point was put forcefully nearly one hundred years ago by Vaughan Williams LJ in Arnot v United African Lands, Limited [1901] 1 Ch 518 at 521, when he referred to a submission as being that the word "conclusive" in s 51 of the Companies Act 1862 (UK) (by which it was provided "a declaration of the chairman" that a resolution has been carried "shall be deemed conclusive evidence of the fact") "is not to be read as absolutely conclusive, but merely as primâ facie conclusive". Vaughan Williams LJ said: "I cannot agree in that view". Eighty years later, in F J Bloemen Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 360 at 379,Murphy J was similarly dismissive when he said of an argument that a conclusive assessment could be shown not to have been duly made:
"The appellants' contention was that, despite s. 177(1), production of the notice or copy is not conclusive, but only inconclusive evidence of due making. Ultimately the appellants retreated to the extreme contention that production of the notice or copy was no evidence of due making."
48 So, in Suffolk County Council v Mason [1979] AC 705, where a "definitive map" was, by statute, "conclusive evidence" of the existence of footpaths, Lord Morris of Borth-y-Gest said (at 717):
"'Conclusive evidence' that there was a 'right of way on foot only' must negative or preclude any evidence that there was a right of way on a horse or in a motor car or that Marsh Lane was a road used as a public path. It seems to me that the clear purpose and policy of Parliament in prescribing the elaborate procedures set out in the various sections was that when the stage of having a definitive map was reached (and thereafter until later reviews) the stage of conclusion should be reached and (until later reviews) should be adhered to. If the map showed that Marsh Lane was a footpath it would then be impossible for anyone to assert that it was a bridleway or a carriageway, or was anything other than a footpath."
His Lordship concluded (at 718):
"So if the definitive map shows a footpath and if Parliament has decreed that in such event the map must be regarded as 'conclusive evidence' it follows in my view that Parliament has said that no one must be heard to attack the truth of that which is 'conclusive.' It was a necessary and inevitable consequence of what Parliament enacted and in my view it must have been the policy and intention of Parliament that any undiscovered right of way, which, had it existed, might destroy the status of a footpath, should be regarded as being non-existent unless or until some opportunity for revision later arose. In so enacting Parliament with its ample powers was, in my view, adopting a most rational line. To add some further provision would have been superfluous. Finality is reached when something is unreservedly conclusive."
There is no suggestion in these passages that some error, of law or fact, involved in the drawing up of the map Parliament decreed should be conclusive, could make any difference. But, if doubt could persist on that point, Lord Diplock dispelled it when he said (at 710) that "the entry on a definitive map of a right of way as a 'footpath,' even though it be as the result of a mistake, is conclusive evidence that there is no more extensive public right of passage over it than that of passage on foot." And he returned to the theme (at 715):
"For these reasons I see no escape from the conclusion that in the instant case the first revised definitive map is conclusive evidence of a fact which it is now conceded has always been untrue … ."
49 Likewise, in Kerr v John Mottram, Limited [1940] Ch 657, which concerned a provision in a company's articles making the signed minutes of a meeting "conclusive evidence", Simonds J (as Viscount Simonds then was) said (at 660):
"Now, art. 114 which I have read represents the bargain between the shareholders as to what is to be, as between them, the value and effect of the minutes of the company as recorded in its minute book and signed by the chairman, and their bargain is that it is to 'be conclusive evidence without any further proof of the facts therein stated.' I have no doubt that the words 'conclusive evidence' mean what they say; that they are to be a bar to any evidence being tendered to show that the statements in the minutes are not correct.
He went on to say that this was the "natural meaning" of the words, and to add:
"That is to say, the minutes are to be regarded as evidence which is not to be displaced and is conclusive as between the parties who are bound by them."
50 The High Court of Australia had taken the same view in Dobbs v The National Bank of Australasia Limited (1935) 53 CLR 643 (a case which was accepted by Mason CJ in Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited (1995) 183 CLR 168 at 184 as providing an analogy for the operation of a certificate made conclusive by statute) as regards a clause in a guarantee making a bank manager's certificate "conclusive evidence of the indebtedness at [a] date of the customer". In their joint judgment, Rich, Dixon, Evatt and McTiernan JJ said (at 651-652):
"Perhaps such a clause should not be interpreted as covering all grounds which go to the validity of a debt; for instance, illegality [their Honours referred to an old case]. But the manifest object of the clause was to provide a ready means of establishing the existence and amount of the guaranteed debt and avoiding an inquiry upon legal evidence into the debits going to make up the indebtedness. The clause means what it says, that a certificate of the balance due to the bank by the customer shall be conclusive evidence of his indebtedness to the bank."
Starke J, in a separate judgment, was prepared (at 656) to except fraud from such a clause "in various mercantile contracts". Both Dobbs v The National Bank of Australasia Limited and Kerr v John Mottram, Limited were followed by the Court of Appeal in Bache & Co (London) Ltd v Banque Vernes et Commerciale de Paris SA [1973] 2 Lloyd's Rep 437, where a guarantee made a notice "conclusive evidence" of the accrual of a particular liability. Unless error were to appear on the face of the notice or fraud were shown, Lord Denning MR considered (at 439, 440) that "full effect" should be given to the conclusive evidence clause. In a more recent guarantee case, Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279, McGarvie, Marks and Beach JJaccepted (at 371) a certificate of the kind involved in Dobbs v The National Bank of Australasia Limited as "conclusive evidence of what is certified, save for manifest error." But there, as appears from the first instance judgment (at 348), the exception of manifest error was incorporated in the language of the clause.
51 It is easy enough to understand that a conclusive evidence clause in a contract may be interpreted so as to exclude fraud. But here a statute provides for certain matters wholly or partly of a political nature - such as damage to intergovernmental relations, the balance of public interest where such relations are concerned, and the public interest with respect to the disclosure or not of particular deliberative processes of government (issues which may be involved in certificates under ss 33A and 36), not to mention issues with respect to international relations, security, defence, and Cabinet or Executive Council deliberations (which may be involved in certificates under ss 33, 34 and 35) - to be established conclusively by a certificate, and expressly contemplates that a certificate may continue to be put forward by a Minister or the Prime Minister and remain conclusive, though it has been found no reasonable ground exists to support it. It is very difficult to see how that situation can accommodate the legal doctrine of fraud, or bad faith. Indeed, the remarks of McHugh J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd at 241, rejecting any possibility of a taxpayer going behind a conclusive assessment to show improper purpose or lack of bona fides are a fortiori. I am not suggesting the legislature condoned certificates that are actually devoid of any reasonable ground; but that the reasonable grounds envisaged are political, not legal, in nature, and are not susceptible of proof in the Administrative Appeals Tribunal, or in a Court. However, if there be an absence of reasonable grounds, still the certificate will be effective of its own force, "subject to the operation of Part VI", and subject to no other restraint.
52 That an attack on a conclusive certificate on the ground of fraud or bad faith in any court is not contemplated, is consistent with the provision made by the legislation (in s 58A) enabling the appropriateness of the certificate to be considered, not by a court, but by the Parliament. It is also necessary to consider who must bear the responsibility for a certificate: initially, either a Minister or in general the Secretary of the relevant Department (see the definition of "principal officer" in s 4), and ultimately the Minister or even the Prime Minister (by virtue of s 58A(9)). If it is true, as Mason and Wilson JJ said in F J Bloemen Pty Ltd v Commissioner of Taxation at 375-376, that the Income Tax Assessment Act 1936 "does not proceed upon the hypothesis that the Commissioner will be motivated in the exercise of his powers by improper or collateral purposes", and that the Act "trusts the Commissioner and does not contemplate … a curial diving into the many official and confidential channels of information to which the Commissioner may have recourse to protect the Treasury" (see also Deputy Commissioner of Taxation v Richard Walter Pty Limited at 187), how much more must the same consideration apply when the involvement of the Prime Minister is expressly contemplated!
53 It should be added that, in any case, a question of fraud or bad faith cannot be admissible on the pleading in the present matter. The rule on which this conclusion depends is of great antiquity, and has never been doubted. It was set down delicately in Daniell's Practice of the High Court of Chancery, 5 ed (1871), vol 1, 276-277:
"Where it is necessary to allege fraud …, a general allegation of it in the bill will not be sufficient to shut out a demurrer; but the facts upon which such allegation is founded must be stated".
Modern restatements are many. I content myself with referring to Cannock Chase District Council v Kelly [1978] 1 WLR 1, a decision of the Court of Appeal where Megaw LJ (with whom Sir David Cairns agreed) made it clear (at 6) that the rule embraces an allegation framed as one of "bad faith" or "lack of good faith", "always involv[ing] a grave charge", and Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201, where Kirby P, Meagher and Handley JJA elaborated (at 203-206) the requirements for a pleading of fraud as "not only rules of pleading and practice", but also "rules of ethical conduct binding on members of the legal profession."
54 Apart from all these considerations, the respondent's argument involves a startling incongruity. If the decision to issue a conclusive certificate is subject to unrestricted judicial review, one of the grounds must be unreasonableness in the well known sense expounded by Lord Greene MR in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223. On that ground, judicial review would enable the decision to be set aside. Yet, the Freedom of Information Act expressly provides (in s 58) for determination by the Administrative Appeals Tribunal of the question "whether there exist reasonable grounds" for the claim made in a certificate, while contemplating (in ss 58(3) and 58A) that the certificate may be unaffected by a determination that there do not. Not only that; Parliament made elaborate provisions in relation to what would follow such a finding. It is impossible that these provisions were devised only to be ignored in favour of an order setting the decision aside for Wednesbury unreasonableness.
55 Parliament also made elaborate provisions for the protection, in proceedings in the Administrative Appeals Tribunal or in the Federal Court on appeal from the Administrative Appeals Tribunal, of the documents certified as exempt in a case where a certificate had issued: see ss 58C, 58E, 64 and 65. There is no corresponding provision with respect to proceedings under the Judicial Review Act. This is an eloquent omission.
56 On top of that, if the original decision to issue a certificate can be reviewed judicially on general grounds, why not also the ministerial decision not to revoke it? If that be answered by reference to the obvious reliance of the Act upon Parliament as the ultimate tribunal to which the Minister is answerable, why does not the same consideration apply at the earlier stage, on the basis that the whole certificate procedure looks to a political solution overseen by the Parliament?
57 The respondent argued that the express exclusions of s 13 of the Judicial Review Act in s 26(1A) and s 58A(7) of the Freedom of Information Act favour the availability of judicial review where it is not excluded. But both those subsections are standard exclusions of a right to reasons under s 13 in respect of decisions in relation to which there is provision for reasons in the Freedom of Information Act itself, and neither is concerned with a decision to issue a conclusive certificate. Relevantly, all that they show is Parliament's awareness of the existence of the Judicial Review Act, which is not in doubt. Being aware of it, and being aware also of the provision in Part VI for limited review of a decision to issue a certificate, Parliament, as I have noted earlier in these reasons, qualified the exclusive effect of a certificate only by the words "subject to the operation of Part VI".
58 I shall now turn back to a broader examination of the nature of the statutory scheme, so far as it involves conclusive certificates. A number of the authorities refer to certificates which are "conclusive evidence", so it is important to make the point that this expression does not appear in the Freedom of Information Act. A certificate of the kind with which we are concerned "establishes conclusively" that a document is exempt, or that its disclosure would be contrary to the public interest. In other words, it establishes something about the nature, in a relevant sense, of the document. So it has a substantive effect, since the Act operates upon categories of documents, and particularly (see s 11) by reference to whether or not they are exempt documents. A certificate under this legislation is not merely evidentiary; it may establish conclusively that there never was a relevant legal right under s 11. There is nothing strange about a certificate having such an effect, for even a certificate made conclusive evidence by some statute may operate in a similar way. In Deputy Commissioner of Taxation v Richard Walter Pty Ltd at 185, Mason CJ said:
"On the other hand, a rule of substantive law, which will not intrude into the exercise of judicial power, may be expressed in the form of a conclusive evidence provision."
To borrow language Mason CJ also used (at 184-185), "a provision of that kind" - and, all the more, one expressed substantively, and not merely as evidentiary - may "attach definitive legal consequences to an … instrument" (such as a certificate). The importance of this is that no question of invalidity for attempted ouster of the jurisdiction of the Court can affect a substantive provision: ibid.
59 The nature of the decision made when a certificate is issued assists the conclusion that general judicial review was not intended to be available. Under s 33(2), it can be said (without being completely exhaustive) that where a Minister is satisfied a document is exempt for the reason that its disclosure could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth, or would divulge information communicated in confidence on behalf of a foreign government or an international organization to the Government of the Commonwealth, a certificate may be signed to that effect, establishing conclusively that the document is exempt. It need hardly be emphasized that each of these matters is likely to be peculiarly in the knowledge of a Minister. Indeed, even in criminal cases, the Courts have been accustomed to accept and act upon certificates issued by Ministers in respect of analogous questions: Duff v R (1979) 28 ALR 663 at 692-695 (per Brennan, McGregor and Lockhart JJ); Duff Development Company, Limited v Government of Kelantan [1924] AC 797 at 824 (per Lord Sumner).
60 The issues raised by s 33A(2) (with which we are directly concerned) are, in essence, whether disclosure of a document could reasonably be expected to cause damage to relations between the Commonwealth and a State, or would divulge information communicated in confidence on behalf of the Government of a State to the Government of the Commonwealth, and whether the disclosure would be, on balance, in the public interest. These are plainly questions involving political issues of high importance in a federation, the health of which as a polity must depend in great measure on the co-operation between its constituent governments. They are closely analogous to the questions raised by s 33, and may well have been thought to call, in some cases, for a definitive political decision by the Minister.
61 It is unnecessary to expatiate on the questions of high policy that may be involved in Cabinet and Executive Council documents (ss 34 and 35), or on their political sensitivity.
62 The issue raised by s 36(3) (the second provision with which we are directly concerned) is, in essence, whether the disclosure of a document would be contrary to the public interest, the document being one the disclosure of which would disclose an opinion, advice or recommendation bound up (in the way specified in s 36(1)(a)) with the deliberative processes involved in the functions of an agency or Minister or the Government. The certificate, in this case, does not establish conclusively the character of the document, but that its disclosure would be contrary to the public interest. The public interest in the maintenance of confidentiality in the deliberative processes of government, that is to say in the formation of policy as distinct from its final statement and implementation, is well recognized, not only in Australia, but in other countries. In the United States, a corresponding exemption has been justified as promoting candour in policy discussions within a department of government: Coastal States Gas Corporation v Department of Energy (1980) 617 F 2d 854 at 866 (United States Court of Appeals, District of Columbia Circuit). The Court explained (ubi cit) that the exemption for a deliberative document looks to "whether it reflects the give-and-take of the consultative process", and "covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency". In Renegotiation Board v Grumman Aircraft Engineering Corp (1975) 421 US 168 at 184, White J, delivering the Opinion of the Supreme Court, said the law "distinguish[es] between predecisional memoranda prepared in order to assist an agency decision-maker in arriving at his decision, which are exempt from disclosure, and postdecisional memoranda setting forth the reasons for an agency decision already made, which are not." In France, reports and surveys intended to assist governmental policy deliberations may be exempt from access under the French law of freedom of information: Democracy, Participation and La Transparence: Freedom of Information in France and Australia, Australian National University, unpublished thesis by A C Johnson (1999) at 124, 128. Whether, in the case of a document falling within the terms of the Australian provision in s 36, disclosure would be contrary to the public interest is, again, a question involving a significant policy element, which may have been thought appropriate for political decision.
63 It is to be observed that numerous other exemptions provided for in ss 37 et seq, which appear to raise more precise questions, or questions less dominated by considerations of government policy, have not been fortified by any provision for a conclusive certificate.
64 Other than that the occasion of a certificate is "[w]here a Minister is satisfied" to the effect of the matter certified, and except to the extent that light is thrown on the task by the subject matter and context of the provisions so empowering the Minister, the Act offers no controlling guidance, to a failure to adhere to which judicial review, if available, might attach an invalidating consequence. The questions involved, in which policy looms so large, are left to the satisfaction of the Minister, to be reached by no marked channel. The conjunction of the predominance of policy in his decision and of the criterion of his satisfaction point away from an intention on the part of Parliament to subject the decision to judicial review. Each of those considerations is a weighty matter, as is shown by a number of authorities to which I shall refer; together, and in the context of the statutory scheme for the use of conclusive certificates, they are compelling.
65 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274, Brennan CJ, Toohey, McHugh and Gummow JJ, in their joint judgment, referred to "the Minister's satisfaction" as a condition of a decision. Their Honours went on (at 275-277) to discuss the effect of what they called "the subjective nature of the decision", of which they said that, while it did not "immunise the decision from review, it [was] necessarily of relevance to the issue of whether there [had] been an error of law". Their Honours quoted with approval the statement of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119:
"It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts."
If a decision does not stand barely as an objective determination, but is clothed in the satisfaction of an authority, this passage justifies some limitation on the availability of judicial review. In particular, the validity of a decision so reached depends upon the authority's own view of the matter rather than upon any objective ascertainment of a jurisdictional fact: The Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 at 303-304, 308.
66 But it will be observed that Gibbs J, and their Honours who wrote the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, allowed for the courts to interfere, in such a case, "if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it", while acknowledging the difficulty of applying such a test to the authority's satisfaction upon a matter "of opinion or policy". Similarly, in Corporation of the City of Enfield v Development Assessment Commission (2000) 169 ALR 400, Gleeson CJ, Gummow, Kirby and Hayne JJ, in their joint judgment, said (at 411):
"Had s 35(3) been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, or were it to be so understood, … further questions would have arisen. In particular, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker."
The present situation is far otherwise. The provisions authorizing the issue of conclusive certificates cannot be construed as requiring the existence of reasonable grounds, since s 58A expressly empowers the Minister to maintain such a certificate notwithstanding a finding pursuant to s 58 that reasonable grounds do not exist. That places the satisfaction which is here involved in a special category, explicable, I have concluded, by reference to the considerations of political policy that are involved.
67 Even apart from a statutory recognition that the particular decision is not required to be supported by reasonable grounds, decisions on matters where policy is at large, or on matters which Lord Greene MR described in Associated Provincial Picture Houses Limited v Wednesbury Corporation (at 230) as "matters of high public policy", policy entrusted to political authorities, may be very nearly beyond the ordinary grounds of judicial review. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 609, Gummow J commented on the passage from the judgment of Gibbs J in Buck v Bavone, which I have cited:
"This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way."
In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 411, Lord Diplock referred to those ministerial decisions that are made in the exercise of prerogative powers, commenting:
"Such decisions will generally involve the application of government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another - a balancing exercise which judges by their upbringing and experience are ill-qualified to perform."
68 Frequently, where a decision is subject to judicial review, at the heart of the review are the questions what factors was the decision-maker bound to take into account in making the decision, and to what factors was the decision-making process limited, or to put the matter differently, what factors could not be taken into account? In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 - 40, Mason J said:
"What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act."
Importantly for present purposes, since we are concerned with a power of the Minister to issue conclusive certificates, Mason J added (at 42) a comment on his own proposition "that relevant considerations may be gleaned from the subject-matter, scope and purpose of the Act". This comment was that "where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion." When these principles are applied to the particular issues involved in the powers with which we are concerned, it is extremely difficult to see how any practical limitation can be implied; certainly none is expressed.
69 Another issue which regularly arises in judicial review matters is whether the decision-maker was bound to accord to the complaining party a measure of natural justice, and, if so, what was that measure. But the nature of the questions to be determined by the Minister when considering the issue of a conclusive certificate prevents any question of natural justice arising. It has been so held in respect of the analogous questions involved in the consideration of a conclusive certificate by the Administrative Appeals Tribunal: Department of Industrial Relations v Forrest (1990) 21 FCR 93 at 106, per Northrop J; and see the remarks of Woodward J in The News Corporation Ltd v National Companies and Securities Commission (1984) 5 FCR 88 at 106.
70 In summary, it may be said that the power to issue a conclusive certificate is conditioned upon the Minister being satisfied, not upon the existence of reasonable grounds. Although in many contexts a requirement of reasonable grounds could readily be implied, here the provisions of s 58A are to the contrary. Once it is accepted that there do not have to be reasonable grounds in the ordinary legal sense, though there obviously must be political reasons, and further that the statute prescribes no criterion other than the Minister's satisfaction as to the bare propositions which may be certified, it becomes impossible to identify matters which must or must not be taken into account. Indeed, to make the conclusive certificate depend for its validity upon precisely defined legal grounds would be the antithesis of Parliament's probable intention. To adapt the language of the High Court in Dobbs v The National Bank of Australasia at 651, the manifest object of the provision for a conclusive certificate was to provide a ready means of establishing the existence of the exemption, or of an ingredient of it, and avoiding an inquiry upon legal evidence into the facts out of which it arose.
71 When the matter is viewed in this light, the various provisions of the Act dealing with conclusive certificates, and their consideration in the Administrative Appeals Tribunal and in the Parliament, reveal "a legislative intent that they should constitute an exhaustive definition" of the jurisdiction to grant relief in respect of such a certificate, to borrow the words used by Mason CJ, Deane, Gaudron and McHugh JJ in Downey v Trans Waste Pty Limited (1991) 172 CLR 167 at 171. Their Honours went on to state that it was "plain" that it would not have been the legislative intent to provide an express limitation, which the legislation there under consideration provided, and then have it "rendered nugatory by the existence of a general unlimited power" under a separate provision. Such a general power would be "repugnant" to the special scheme established by the Act. All of this reasoning is equally applicable to the present case, and in my opinion the statement made in the joint judgment of Gibbs CJ, Mason, Wilson, Deane and Dawson JJ in The Victorian Public Service Board v Wright (1986) 160 CLR 145 at 152 that, under the Freedom of Information Act, "clear and comprehensive provision was made for review in the case of documents, including Cabinet documents which were the subject of a certificate of exemption", and that "[t]he review of decisions, other than internal review, was otherwise carried out under the Commonwealth Act by the Administrative Appeals Tribunal" should be accepted as meaning precisely what it says. Certainly, it is expressed in summary form, and it is an obiter dictum, though one of great weight, but it represents their Honours' view of the legislation, and the word "comprehensive" cannot be reconciled with the respondent's case.
72 In argument, counsel engaged in a detailed examination of the decisions of the High Court upon the income tax legislation of the Commonwealth in F J Bloemen Pty Ltd v The Commissioner of Taxation and in Deputy Commissioner of Taxation v Richard Walter Pty Ltd. In my opinion, there is little profit to be gained from a meticulous comparison of provisions in the Freedom of Information Act with those there considered. The value of the decisions is in the principles adopted by the High Court, and in their demonstration that an Act of the Parliament may, in practical terms, exclude a party from what would otherwise be an orthodox approach to the Court. Whatever weight was given to particular provisions, the broad proposition stated by Mason and Wilson JJ in F J Bloemen Pty Ltd v The Commissioner of Taxation at 376 seems to me to be applicable, mutatis mutandis and in principle, here:
"The general tenor of the statutory provisions suggests that a taxpayer wishing to challenge a notice of assessment served upon him will be effectively confined to the Pt V procedures."
73 Failing other arguments, the respondent relied on the Hickman principle (so called after R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598). In R v Hickman, as Dawson J explained in Deputy Commissioner of Taxation v Richard Walter Pty Ltd at 222, "a formula was devised to reconcile the prima facie inconsistency between a statutory provision which limits the powers of a decision maker and another provision - a privative clause - which contemplates that any decision will operate free from any restriction. The formula," his Honour continued, "which is a compromise, prevents a decision from being called in question provided that it is the result of a bona fide attempt to exercise the power to make it, it relates to the subject matter of the legislation and it does not on its face go beyond the power." See also the judgment of Mason CJ in the same case at 179-180. But, as Gaudron and Gummow JJ pointed out in Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 at 631, "the Hickman principle is a rule of construction". The problem, therefore, "is one of the meaning and effect of the statutory provisions in question". For all the reasons I have attempted to set forth, those provisions, which operate substantively, do not contemplate a proceeding to invalidate a conclusive certificate of the kind envisaged by the respondent's argument, just as the substantive operation of s 177 of the Income Tax Assessment Act 1936 did not attract the Hickman principle in the opinion of McHugh J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd at 240, 242 (see also the conclusion of Mason CJ at 188).
74 For completeness, I should note that the appellant submitted the respondent was not entitled to rely on the Hickman principle, since no Notice of Contention had been filed. Reference was made to Order 52 rule 22(3) of the Rules. But that rule does not apply unless "a respondent proposes to contend that some matter of fact or law has been erroneously decided against him". The respondent's reliance on the Hickman principle does not involve such a contention. What the appellant was entitled to was sufficient notice of the point to avoid his being taken by surprise, and that he had: Turner v Trevorrow (1994) 49 FCR 566 at 571-572.
75 I return to the question the subject of the appeal, to which I referred in paragraph 8 of these reasons. It asks whether the decisions, pursuant to which the certificates issued, are amenable to review by the Court "as sought in the proposed further amended application for review". I have set out in some detail the grounds of that proposed further amended application in paragraph 7. So far as ground A alleges a denial of natural justice on the basis that the respondent should have been heard before the certificates issued, I have made it clear that in my opinion he had no right to be heard; so far as a denial of natural justice is alleged to have occurred by reason of a reasonable apprehension of bias, or actual bias, broad allegations of that sort, devoid of any pleading of any material fact, are quite impermissible. Nor could previous involvement in political decisions establish a relevant bias, since Parliament, when it entrusted the power to the Minister or a delegate being the principal officer of the agency (and no one else), must have appreciated that very often both the Minister and the principal officer would have had such an involvement. So far as, under ground B, it is alleged that power to issue a certificate under s 33A(2) does not arise in respect of matter to which s 33A(5) applies, s 33A(2)(b) expressly empowers the issue of a certificate in relation to this very question, and the point has no substance. The further propositions pleaded in respect of subsection (5) are equally baseless. So far as s 36(5) is relied upon, nothing is pleaded to which that reliance is relevant. So far as the terms of s 36(1)(a) are referred to, again, no facts are pleaded to raise any conflict between those terms and the relevant certificate. Under ground C, a miscellany of perfectly general allegations is made. These include relevant and irrelevant considerations, without any specification of any one such consideration, a bald allegation of "bad faith" and abuse of power, and Wednesbury unreasonableness. It is apparent from what I have already written that I do not think the decisions are amenable to review by the Court as sought in such a pleading. Under ground D, it is alleged there was no evidence or other material upon which the respondent could reasonably have been satisfied that the disclosure of each of the matters in what are called "the s 33A documents" could reasonably be expected to cause damage to relations between the Commonwealth and a State; would divulge information or matter communicated in confidence (as specified in the section); and would not be on balance in the public interest. It is further alleged that there was no evidence or other material upon which the respondent could reasonably have been satisfied that the disclosure under the Act of each of the matters in what are called "the s 36 documents" would be contrary to the public interest. None of these allegations is pleaded except in those blanket terms. Under ground E, error of law in the construction and application of the test of the "public interest" is alleged in respect of each of the decisions without any identification of the alleged misconstruction and misapplication. I have already commented on ground F in paragraph 7 of these reasons.
76 It will be apparent that if, despite the use of the word "conclusively" in ss 33A and 36, some cases may raise a question determinable in the court in respect of a decision related to the signing of such a certificate, this pleading does not identify any case of that kind. In my opinion, the question for separate determination should have been answered in the negative.
77 Accordingly, I would grant leave to appeal with costs; allow the appeal with costs; set aside the order under appeal and the costs order made below; and in lieu of those orders made below, I would order that the separate question the subject of the appeal be answered in the negative and that the respondent to the appeal pay the costs of the determination of the separate questions.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.