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[2002] HCA 19
respondent. Appeal dismissed with costs. The High Court held that the conclusive-certificate provisions did not impliedly remove Federal Court jurisdiction under the ADJR Act or s 39B of the Judiciary Act to...
The FOI Act made the certificates conclusive for specified purposes within the FOI scheme, particularly as to access and the restricted AAT merits-review process. The High Court held that this did not clearly remove the Federal Court's separate power to examine whether the certificate decisions were legally valid. The appeal was dismissed with costs. The judgment did not decide whether any particular ground of judicial review would succeed.
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2,190 words · generated 05/10/2026
The dispute concerned the relationship between two parts of the Commonwealth administrative-law system: the Freedom of Information Act 1982 (Cth) (FOI Act), and the legislation providing for judicial review of administrative decisions, especially the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).
14 cited instruments linked from this judgment.
Lindsay Tanner, then a member of the House of Representatives and Shadow Minister for Transport, requested Departmental reports arising from waterfront-reform consultancies on 17 December 1997 ([5]). The Department refused the request on 16 February 1998. Following internal review, the Deputy Secretary affirmed the refusal of access to most of the reports on 20 April 1998 ([7]). Tanner applied to the Administrative Appeals Tribunal (AAT) for review on 30 April 1998 ([8]).
While the AAT review was pending, the Minister delegated relevant powers under ss 33A and 36 of the FOI Act to Peter Shergold, the Department's Principal Officer. On or about 30 December 1998, Shergold issued certificates in relation to the requested documents under ss 33A(2) and 36(3) ([8]). Those provisions concerned, respectively, documents affecting relations between the Commonwealth and a State, and internal working documents ([9]-[14]).
The certificates mattered because s 11 of the FOI Act provided a legally enforceable right of access to agency documents other than exempt documents ([6]). Their effect was to treat the reports as exempt and thereby negate Tanner's access right while the certificates remained in force ([15]). The certificates also shaped the AAT process. Part VI of the FOI Act made the certificates' conclusiveness subject to its operation, but limited the AAT's ability to review the decisions to issue them. In the circumstances described by the Court, the AAT could consider whether reasonable grounds existed for the exemption claim, but could not itself review the certificate decision ([16]-[17]).
Tanner applied to the Federal Court under s 5 of the ADJR Act, alleging grounds of judicial review. He later relied also on s 39B of the Judiciary Act 1903 (Cth) ([18]-[21]). The central question was whether the words “establishes conclusively” in the FOI Act meant the certificate decisions could not be judicially reviewed.
The High Court, comprising Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ, dismissed Shergold's appeal with costs ([44]). The Court did not decide whether the particular certificates were legally valid or whether any ground of judicial review would succeed. Its decision was about jurisdiction: the FOI Act had not clearly removed the Federal Court's ability to consider the legality of the certificate decisions.
The Court began from the structure of the federal administrative-law scheme. The AAT provides merits review where legislation gives it that role. The Ombudsman investigates maladministration and may recommend corrective action, but does not substitute a new decision. Judicial review under the ADJR Act concerns legality, not the merits, and the Court cannot substitute its own decision for the decision-maker's ([37]). These mechanisms have distinct functions.
That distinction was important because the FOI Act dealt specifically with the interaction between certificates and AAT review. Under ss 58 and 58A, the AAT's role was restricted and a further process involving a Minister could follow if the AAT found no reasonable grounds for the exemption claim ([17]). But the fact that merits review was constrained did not itself establish that judicial review had also been removed.
The Court applied the principle that legislation should not be read as withdrawing or limiting a court's jurisdiction unless the implication is “clearly and unmistakably” apparent ([34]). The general approach to implied repeal is to try to read the statutes together. As the Court explained, earlier and later provisions ordinarily operate together unless there are strong grounds to infer an intention that one displaces the other ([34]-[35]).
The ADJR Act pre-dated the relevant FOI Act provisions, but its reach was not frozen to decisions made under laws existing when it commenced. The expression “decision to which this Act applies” included relevant administrative decisions made under later enactments. The Court noted that decisions under later Commonwealth laws had been treated as reviewable under the ADJR Act, and that the Act's express exclusions had been amended over time ([28]-[29]). The certificate decisions were not within an express exclusion identified in the judgment.
The Court then considered the FOI Act's scheme as a whole. Parliament had expressly excluded particular ADJR Act requirements in some FOI situations, such as the requirement to provide reasons under s 13 of the ADJR Act ([38]). Against that background, the absence of an express or unmistakable exclusion for judicial review of these certificates was significant. The Court concluded that the certificates' conclusive status was directed to their effect under the FOI Act, including the access and merits-review scheme, not to preventing a court from deciding whether the decision to issue them was lawful ([36], [39]-[40]).
The Court treated s 39B of the Judiciary Act in a similar way. That provision draws on the judicial-review jurisdiction in s 75(v) of the Constitution. The Court stated that a restriction on s 39B should not be read more narrowly than the constitutional jurisdiction unless it appears expressly or by necessary intendment ([41]-[42]). It also addressed the timing difference: s 36(3) pre-dated s 39B, while the relevant s 33A provisions were later. The Court considered that the certificate's limited operation within the FOI scheme could coexist with s 39B jurisdiction ([43]).
Before this decision, the relevant statutes established several distinct mechanisms for challenging or examining Commonwealth administrative action. The AAT could conduct merits review where authorised. The Ombudsman could investigate maladministration and recommend corrective action. The Federal Court could conduct judicial review under the ADJR Act, and s 39B of the Judiciary Act provided a further jurisdiction derived from s 75(v) of the Constitution ([2]-[4], [37]).
The FOI Act added an access right, but qualified it by exempt-document provisions. Sections 33A and 36 addressed categories of documents that could be exempt, and permitted ministerial certificates in specified circumstances ([9]-[14]). Their “conclusive” effect had consequences within the FOI process: the certificate could establish the stated exemption and, under s 36(3), that disclosure would be contrary to the public interest. Part VI nevertheless modified that effect in the context of AAT review ([13]-[17]).
The unresolved question was whether the conclusive language also cut off the Federal Court's separate jurisdiction to review the legality of the certificate decision. Shergold argued that it did, effectively making the certificate decision not a “decision to which” the ADJR Act applied and limiting the jurisdiction conferred by s 8 ([32]). The High Court rejected that construction because the required clear implication was absent ([34], [39]).
After the decision, the governing proposition stated in this judgment was that the FOI Act's conclusive-certificate language did not, by implication, withdraw jurisdiction under the ADJR Act or s 39B to examine the certificate decision. The Court did not invalidate the certificates, decide whether the decision-maker had made an error, or determine the outcome of any particular review ground. It held only that those questions were not foreclosed by the conclusive-evidence provisions ([40], [42]-[44]).
This account of the “before and after” position is limited to what the judgment itself states. It does not establish later amendments, subsequent judicial interpretation, or the current operation of the legislation.
At [34], the Court said that a Commonwealth law “is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably.” In plain English, a court does not infer that Parliament has taken away a court's authority from ambiguous or indirect language. The statutes must first be read, if possible, so they can both operate.
At [36], the Court accepted Tanner's submission that “establishes conclusively” concerned the certificates' effect “in proceedings under and in accordance with the FOI Act.” The practical point is that conclusiveness within the FOI scheme did not necessarily decide what a different statute, the ADJR Act, permitted the Federal Court to examine.
At [39], the Court said Parliament had not “clearly state[d] its will to redefine the jurisdiction of the Federal Court under the ADJR Act.” It treated the certificates as removing the documents from access under s 11 while they remained in force, but not as closing off the anterior legal question of whether the decisions to issue them were lawful.
At [40], the Court made the distinction explicit: “That does not deny the anterior question of law, namely whether the decision to issue the certificate will withstand judicial review under the ADJR Act.” This is not a finding that the certificates would fail review. It means that their statutory effect on access did not, by itself, prevent a court from considering their legal validity.
Also at [40], the Court cautioned that particular review grounds might have “limited or no operation” in a certificate case. It mentioned, as matters for the Federal Court, the possible breadth of relevant considerations, the narrowness of irrelevant considerations, and the content of any natural justice requirement. That passage preserves the distinction between having jurisdiction to hear a review and proving a review ground.
The reasoning is most directly engaged where legislation gives an administrative decision, certificate or determination “conclusive” effect, and a party argues that this language implicitly prevents a court from exercising jurisdiction conferred by another statute. The key question is not simply whether the decision has conclusive effect for some statutory purpose. It is whether Parliament clearly indicated that the relevant conferral of judicial jurisdiction was being withdrawn or limited.
The judgment is particularly relevant where the statutory scheme contains separate review mechanisms with different functions. In this case, the AAT's merits-review role was expressly tailored by the FOI Act, while the ADJR Act and s 39B concerned judicial review of legality ([16]-[17], [37]-[40]). The existence of a restricted merits-review process did not, without more, imply that judicial review was also excluded.
The case also illustrates the significance of express drafting elsewhere in the same statute. The FOI Act specifically addressed the interaction with provisions of the ADJR Act in other contexts, including s 13's reasons requirement ([38]). The Court considered the absence of a clear exclusion for these certificate decisions as part of the statutory context.
The precedent does not mean that every decision described as “conclusive” is reviewable on every ground, or that a particular challenge will succeed. The judgment distinguishes jurisdiction to review from the substantive merits of a review application. It leaves the precise grounds, relevant considerations and procedural requirements to be addressed in the particular proceeding ([40]).
The supplied judgment does not discuss decisions made after 23 May 2002, so it cannot establish how later courts have applied, followed, limited or distinguished Shergold v Tanner. It would be unsafe to infer later treatment from this judgment alone.
Within its own reasoning, the High Court referred to earlier authorities on jurisdiction, statutory interpretation and implied repeal. It discussed Deputy Commissioner of Taxation v Richard Walter Pty Ltd in comparing the timing of statutory provisions and the issue of implied amendment ([22]-[26], [41]-[43]). It relied on the general construction approach associated with Saraswati v The Queen, Butler v Attorney-General (Vict) and Travinto Nominees Pty Ltd v Vlattas: statutes should be read to stand together unless there is a sufficiently clear conflict ([34]-[35]).
The judgment also referred to Byrne v Australian Airlines Ltd for the expectation that Parliament will clearly state its will where significant rights and liabilities are involved, applying that reasoning by analogy to a withdrawal of federal-court jurisdiction ([27]). These references explain the High Court's reasoning in this case, but they are not evidence of how later courts treated Shergold.
The judgment left several matters unresolved. First, it did not determine whether the certificates in question were issued lawfully. It held that the Federal Court had jurisdiction to consider that issue, not that any particular ground of review was established ([40], [44]).
Second, it did not decide which ADJR Act grounds would be available or persuasive in a certificate case. The Court suggested that some grounds could have limited or no operation and identified the possible breadth of relevant considerations, the narrowness of irrelevant considerations and the content of natural justice as questions for the Federal Court ([40]).
Third, it did not resolve the wider constitutional question mentioned at [33]: whether an implied statutory withdrawal of jurisdiction would satisfy the specificity required of a law defining federal-court jurisdiction under s 77(i) of the Constitution. The Court expressly said that, without argument, it was inappropriate to pursue that point.
Finally, the judgment does not provide later legislative history or subsequent case treatment. Those matters cannot be answered from the source supplied here. A researcher seeking to apply the decision to a current dispute would need to check the later statutory text and relevant subsequent authorities, as well as the specific decision and review ground involved.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND HAYNE JJ
PETER ROGER SHERGOLD, AS DELEGATE APPELLANT
STATE FOR EMPLOYMENT, WORKPLACE
RELATIONS AND SMALL BUSINESS
AND
LINDSAY TANNER RESPONDENT
Shergold v Tanner
[2002] HCA 19
23 May 2002
M63/2001
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation:
A L Cavanough QC with W A Harris for the appellant (instructed by Australian Government Solicitor)
K H Bell QC with S G E McLeish for the respondent (instructed by Maurice Blackburn Cashman)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Shergold v Tanner
Administrative Law (Cth) – Judicial review – Freedom of information – Documents affecting relations between the Commonwealth and a State – Internal working documents of an agency, a Minister or the Government of the Commonwealth – Refusal of access to documents in respect of which Minister's delegate issued certificates pursuant to ss 33A(2) and 36(3) of the Freedom of Information Act 1982 (Cth) ("the FOI Act") – FOI Act provides that, subject to Pt VI of the Act, certificates, while in force, "establish conclusively" that disclosure would be contrary to public interest or that documents are exempt documents and do not contain matter the disclosure of which would be in the public interest – Whether "conclusive evidence" provisions impliedly amend conferral of jurisdiction on the Federal Court by the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") or by the Judiciary Act 1903 (Cth) ("the Judiciary Act") – Whether issue of certificates reviewable by the Federal Court under the ADJR Act or the Judiciary Act.
Federal Court of Australia – Jurisdiction – Whether Court's jurisdiction under ADJR Act or the Judiciary Act impliedly limited by "conclusive evidence" provisions of the FOI Act – Whether jurisdiction conferred by the ADJR Act and the Judiciary Act extends to judicial review of decision to issue certificates under ss 33A(2) and 36(3) of the FOI Act.
Statutes – Interpretation – Conferral of jurisdiction upon a court – Whether later legislation withdraws or limits conferral of jurisdiction – Need for clear and unmistakable implication to have such effect.
Commonwealth Constitution, s 77(i).
Freedom of Information Act 1982 (Cth), ss 11, 33A, 36.
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 8.
Judiciary Act 1903 (Cth), s 39B.
Administrative Appeals Tribunal Act 1975 (Cth).
Ombudsman Act 1976 (Cth).
The federal system of administrative law
The legislation is, on the one hand, the Freedom of Information Act 1982 (Cth) ("the FOI Act") and, on the other, the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), the Ombudsman Act 1976 (Cth) ("the Ombudsman Act") and the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The ADJR Act operates in addition to the jurisdiction of this Court conferred by s 75 of the Constitution with respect to judicial review; a significant measure of the s 75(v) jurisdiction is also conferred on the Federal Court by s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act").
The AAT Act, the Ombudsman Act and the ADJR Act set up the framework for the federal system of administrative law and followed detailed consideration of the subject over many years, particularly by the Kerr Committee Report1, the Bland Committee Interim Report2, the Bland Committee Final Report3 and the Ellicott Committee Report4. On introducing the Bill for the ADJR Act, the Attorney-General, Mr Ellicott QC said5:
"It will thus be seen that the 3 avenues of review, appeal on the merits to the Administrative Appeals Tribunal ['the AAT'], investigation by the Commonwealth Ombudsman, and judicial review by the Federal Court of Australia, provide different approaches to the remedying of grievances about Commonwealth administrative action. Each has its own place in a comprehensive scheme for the redress of grievances."
The facts
The respondent at the relevant time was a member of the House of Representatives holding the position of Shadow Minister for Transport in the Federal Opposition, with primary responsibility for representing the Federal Opposition on matters relating to the waterfront. On 17 December 1997, he made a request to the Department of Employment, Workplace Relations and Small Business ("the Department") for access to documents, being reports arising from certain consultancies on waterfront reform. The appellant was the Principal Officer and Secretary of the Department.
Section 11 of the FOI Act provides that, subject to that statute, "every person has a legally enforceable right to obtain access in accordance with this Act to … a document of an agency, other than an exempt document". The expressions "document of an agency" and "agency" are defined in s 4(1) in terms which include the Department.
The request by the respondent was refused on 16 February 1998 and that refusal then was the subject of an internal review under s 54 of the FOI Act. Section 54 is in Pt VI (ss 53‑66) which is headed "Review of decisions". The Deputy Secretary of the Department, Mr R Stewart-Crompton, on 20 April 1998 affirmed the decision to refuse access to most of the contents of the reports sought by the respondent.
Thereafter, on 30 April 1998, the respondent applied under s 55 of the FOI Act to the AAT for a review of the Deputy Secretary's decision. Then, by instrument dated 27 August 1998, the Minister delegated his powers under certain provisions of the FOI Act, including ss 33A and 36, to the appellant as the Principal Officer of the Department. Sections 33A(6) and 36(8) confer upon the responsible Minister of an agency a power of delegation and the effect of s 33A(7) and s 36(9) respectively is that the exercise of power by a delegate is deemed to have been performed by the responsible Minister. On or about 30 December 1998, the appellant issued what were stated to be certificates under ss 36(3) and 33A(2) of the FOI Act in respect of the documents. This step was taken at a time when the hearing of the review by the AAT had been fixed for 10 February 1999.
The applicable legislation
Sections 33A and 36 are included in Pt IV (ss 32‑47A) of the FOI Act, which is headed "Exempt documents". The term "exempt document" is defined in s 4(1) in terms which include the documents to which Pt IV applies. Section 33A is concerned with documents affecting relations between the Commonwealth and a State and s 36 with internal working documents of an agency, a Minister or the Government of the Commonwealth.
Section 33A 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" (s 33A(5)). Subject to that caveat, sub‑s (1) of s 33A classifies as an exempt document one whose disclosure under the FOI Act "would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State" (s 33A(1)(a)). Exemption also is conferred in respect of documents which, again subject to sub‑s (5), "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" (s 33A(1)(b)).
Section 33A(2) states:
"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."
"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."
"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 or she 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." (emphasis added)
"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." (emphasis added)
The effect of the decisions of the appellant, as the Minister's delegate, to issue the certificates was to negate the respondent's legally enforceable right of access otherwise conferred by s 11 of the FOI Act; that was because that right under s 11 does not extend to exempt documents.
The issue of the certificates had a significant impact upon the pending review application made to the AAT under s 55 of the FOI Act. The conclusiveness stipulated in ss 33A(2A) and 36(3) is expressed as being subject to the operation of Pt VI. Section 55 is found in that Part, and s 58(1) confers upon the AAT a power of "merits review" with its decision having the same effect as a decision of the agency or the Minister in question. However, succeeding provisions in s 58 curtail that general provision.
In particular, in respect of certificates issued under ss 33A and 36, the powers of the AAT do not extend to reviewing the decision to give the certificate; rather in a case such as the present, the AAT might do no more than determine the question whether there existed reasonable grounds for the claim of exemption (s 58(3), (4)). If the AAT determines that such reasonable grounds did not exist, then s 58A is enlivened. This requires the appropriate Minister to decide whether to revoke or not to revoke the certificate; if the decision is against revocation, then the Minister is obliged by s 58A(3) to take various steps. These include the reading to the House in which the Minister sits a notice in writing of his decision which includes the material on which the Minister relied and the reasons for the decision (s 58(4)).
The challenge to the certificate
"A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds …".
The expression "decision to which this Act applies" was defined in s 3(1) so as to include a decision of an administrative character made "under an enactment". The FOI Act was an "enactment" within the definition of that term in s 3(1) of the ADJR Act.
The respondent claimed to be aggrieved, within the meaning of s 5, by the decisions by the appellant, as the Minister's delegate, that he was satisfied that the documents in question met the criteria outlined in ss 33A(2) and 36(3) of the FOI Act and that the certificates be signed. Various of the grounds enumerated in s 5(1) of the ADJR Act were relied upon by the respondent.
Section 8 of the ADJR Act stated that the Federal Court had "jurisdiction to hear and determine" the application. Section 8 is a law "defining the jurisdiction" of a federal court within the meaning of s 77(i) of the Constitution. A law defines that jurisdiction if it gives or confers, or determines or marks the boundary or extent of jurisdiction with respect to any of the matters in s 75 and s 76 of the Constitution6.
The appeal in this Court springs from the litigation which ensued in the Federal Court respecting the competency of the application for judicial review. It should be noted that that application had been amended by including reliance upon s 39B of the Judiciary Act as a further source of jurisdiction. Section 39B was inserted in 1983, after the commencement of the FOI Act7.
The operation of the ADJR Act
It is convenient first to consider the position that arises from reliance upon the ADJR Act, a statute which preceded the FOI Act. That temporal sequence is the reverse of that with which this Court was concerned in Deputy Commissioner of Taxation v Richard Walter Pty Ltd8.
The provisions of the Income Tax Assessment Act 1936 (Cth) relied upon in Richard Walter, in particular the "conclusive evidence" provision in s 177(1) and the system for review and appeal with respect to assessments, predated the conferral of jurisdiction upon the Federal Court (by s 39B of the Judiciary Act). An issue upon which various views were expressed in Richard Walter was whether the conferral of jurisdiction by s 39B impliedly amended s 1779; here it is whether the "conclusive evidence" provisions of the FOI Act impliedly amend the conferral of jurisdiction by the ADJR Act.
The issue now before this Court may be expressed as being whether the decisions of the appellant to issue the certificates under the FOI Act were not decisions reviewable by the Federal Court under s 5 of the ADJR Act because of the effect of the phrase "establishes conclusively" in ss 33A(2A) and 36(3) of the FOI Act in the context of that statute as a whole.
In the Federal Court, the primary judge (Marshall J) determined that issue in a manner favourable to the subsistence of jurisdiction under the ADJR Act10. The Full Court, by majority (Black CJ and Finkelstein J; Burchett J dissenting) dismissed an appeal11.
It will be apparent from a consideration of the issue as expressed above that the effect of an answer adverse to the existence of jurisdiction is that the phrase "establishes conclusively" in the provisions of the FOI Act redefines, within the meaning of s 77(i) of the Constitution, the jurisdiction otherwise conferred upon the Federal Court by the ADJR Act. These provisions of the FOI Act, if they have this operation, like the provisions of the ADJR Act which conferred the jurisdiction, require for their validity support by s 77(i) of the Constitution. The power which validly supports a law supports the law which amends or repeals it12.
In Byrne v Australian Airlines Ltd, McHugh and Gummow JJ observed:
"[W]here a question arises as to the creation of new rights and liabilities which will engage Ch III of the Constitution, it is to be expected that the Parliament will clearly state its will14."
So also where the Parliament, by redefining the jurisdiction of a federal court, withdraws rights and liabilities from what otherwise would be the engagement of Ch III.
No provision in the FOI Act in terms amends the operation of the ADJR Act by contracting the jurisdiction otherwise enjoyed by the Federal Court. It is true that the enactment of the ADJR Act predated the creation by the FOI Act of the very rights and liabilities in respect of which jurisdiction under the ADJR Act attaches. However, it is well settled that the expression "decision to which this Act applies", as it appears in s 5 and other provisions of the ADJR Act, is ambulatory in nature and not fixed in time so as to identify only decisions made under enactments in force at the time of the commencement of the ADJR Act. It has been accepted that provisions such as s 5 of the ADJR Act apply to review of decisions made under later as well as earlier laws of the Commonwealth and that their operation is not confined to decisions made under laws which preceded the enactment of the ADJR Act15.
The ADJR Act itself provides (in s 19) for the making of regulations declaring that a class or classes of decisions are not subject to judicial review under the ADJR Act. Further, the definition in s 3(1) of "decision to which this Act applies", whilst speaking in general terms of decisions of an administrative character made under an enactment, expressly excludes a decision included in any of the classes of decisions set out in Sched 1. Schedule 1 has been amended from time to time and at the time of the events giving rise to this litigation included decisions under a range of laws of the Commonwealth enacted after the commencement of the ADJR Act. The decisions under the FOI Act with which this litigation is concerned do not fall within any of the various classes of decision for which specific exclusion has been made in or under the ADJR Act itself.
Sub‑sections (2) and (2A) were introduced into s 33A of the FOI Act by s 23 of the Freedom of Information Amendment Act 1991 (Cth) and replaced the "conclusive certificate" provision which had been included in s 33A as enacted by the Freedom of Information Amendment Act 1983 (Cth); that statute commenced on 1 January 1984. Section 36(3) has been in its present form at all times. The above being the effect of the ADJR Act at the time of the commencement of ss 33A(2), 33A(2A) and 36(3) of the FOI Act, the question is whether those sections effected an implied partial repeal of ss 5 and 8 of the ADJR Act.
Section 33A(2) confers a new power of decision by Ministers, the exercise of which is conditioned upon satisfaction that the document in question meets the positive criterion in par (a) ("an exempt document for a reason referred to in [s 33A(1)]"), and the negative criterion in par (b) ("not a document containing matter the disclosure of which under this Act would be, on balance, in the public interest"). Provision then is made for the implementation of the Minister's satisfaction by signing a certificate.
"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict)19."
In Butler, Kitto J expressed the question as being whether the two items of legislation could stand or live together20. In the same case, Fullagar J spoke of "contrariety"21, Taylor J of "direct conflict"22, and Windeyer J asked whether the two statutes were clearly and indisputably contradictory displaying such repugnancy that they could not be reconciled23. Later, in Travinto Nominees Pty Ltd v Vlattas24, Gibbs J used the expression "could stand together".
The respondent submits that the phrase "establishes conclusively" in the two provisions of the FOI Act is directed to the effect of the certificates in proceedings under and in accordance with the FOI Act. The consequence is that these provisions do not work any implied repeal of the conferral of jurisdiction on the Federal Court by another statute, the ADJR Act. That submission should be accepted.
A perusal of the FOI Act in the form it stood at the time of the issue of the certificates indicates an awareness by the Parliament of the differential impact of the FOI Act upon the public law regime comprising the AAT Act, the Ombudsman Act and the ADJR Act. That regime may be described as follows. The AAT is empowered to review on the merits certain decisions but only if the relevant legislation in terms attracts the operation of the AAT Act. The Commonwealth Ombudsman is not concerned directly with merits review and is not empowered to substitute a decision for that under review; rather, corrective action may be recommended where there has been maladministration. Finally, judicial review under the ADJR Act by the Federal Court (and now25 the Federal Magistrates Court) is not concerned at all with the merits of the decision or action under review; the question for the Court is whether the decision or action is lawful and the Court cannot substitute its own decision for that of the decision-maker.
In Pt VI of the FOI Act, special provision is made (in s 57) for the exercise of powers under the Ombudsman Act. Reference already has been made to the particular relationship between the FOI Act and the AAT Act which is established by s 55 and succeeding provisions of Pt VI of the FOI Act. Finally, specific provision is made in the FOI Act that certain decisions thereunder will not attract the operation of particular provisions of the ADJR Act. Examples are found in ss 26(1A), 29(10) and 30A(5), which in terms remove what otherwise would be the operation of s 13 of the ADJR Act with its requirement for the provision of reasons for decisions.
The operation of s 39B of the Judiciary Act
Section 39B of the Judiciary Act is taken from s 75(v) of the Constitution, as explained in Richard Walter26. Section 75(v) is no wider than and may well be less in scope than s 5 of the ADJR Act. Hence the concentration by the respondent in his submissions upon the ADJR Act as the basis for the jurisdiction of the Federal Court which he invoked.
However, it is convenient to deal briefly with the issues which arise respecting s 39B. Section 39B commenced on 20 December 1983; this preceded the enactment in 1991 of the relevant provisions of s 33A. The question here is whether the conferral of jurisdiction by s 39B is limited by the subsequent enactment. Reasoning which explains the relationship between the conferral of jurisdiction by the ADJR Act and the later enactment of the FOI Act applies here. There is the further point noted by Brennan J in Richard Walter27. This is that a law which would confine jurisdiction conferred by s 39B should not be construed "more narrowly than the jurisdiction conferred by s 75(v) of the Constitution unless the restriction appears expressly or by necessary intendment".
A different situation obtains respecting s 36(3) of the FOI Act. This came into operation on 1 December 1982 and thus preceded the enactment of s 39B. However, once it again is seen that the phrase "establishes conclusively" refers to the operation of the FOI Act and, in particular, to merits review under the adjusted procedures of the AAT provided for in the FOI Act, it will be apparent that the jurisdiction conferred by s 39B may stand with the provisions in s 36(3) of the FOI Act. That is to say, the particular, and, in a sense, limited, operation of the certificate provision in s 36(3) is not diminished by the distinct operation of s 39B with respect to judicial review.
Order
Commonwealth Administrative Review Committee Report, Parliamentary Paper No 144 of 1971. ↩
Interim Report of the Committee on Administrative Discretions, Parliamentary Paper No 53 of 1973. ↩
Final Report of the Committee on Administrative Discretions, Parliamentary Paper No 316 of 1973. ↩
Prerogative Writ Procedures: Report of Committee of Review, Parliamentary Paper No 56 of 1973. ↩
Australia, House of Representatives, Parliamentary Debates (Hansard), 28 April 1977 at 1395. ↩
Ah Yick v Lehmert (1905) 2 CLR 593 at 604; Gould v Brown (1998) 193 CLR 346 at 444 [187]; Abebe v The Commonwealth (1999) 197 CLR 510 at 592 [235]. ↩
By the Statute Law (Miscellaneous Provisions) Act (No 2) 1983 (Cth). Section 39B has since been amended but not in a manner presently relevant. ↩
(1995) 183 CLR 168. ↩
(1995) 183 CLR 168 at 181, 193, 213, 234, 242‑243. ↩
Tanner v Shergold (2000) 60 ALD 771; 171 ALR 672. ↩
Shergold v Tanner (2000) 102 FCR 215. ↩
Shergold
Tanner [2002] HCA 19; 209 CLR 126; 188 ALR 302; 76 ALJR 808
(1905) 2 CLR 593
(1998) 193 CLR 346
(1999) 197 CLR 510
(1995) 183 CLR 168
(2000) 102 FCR 215
(1998) 195 CLR 337
(1995) 185 CLR 410
(2000) 201 CLR 226
(1971) 124 CLR 293
(1990) 21 FCR 554
(1932) 47 CLR 121
(1991) 172 CLR 1
(1961) 106 CLR 268
(1973) 129 CLR 1
Appeal dismissed with costs. The High Court held that the conclusive-certificate provisions did not impliedly remove Federal Court jurisdiction under the ADJR Act or s 39B of the Judiciary Act to review the decisions to issue the certificates ([44]).
Upon a decision made under s 33A(2), s 5 of the ADJR Act operates and s 8 of the ADJR Act confers jurisdiction upon the Federal Court. The same reasoning applies to decisions under s 36(3). However, the appellant submits that the provision then made in the FOI Act by the phrase "establishes conclusively" enacts "a substantive rule of law"; this, it is said, denies to the anterior decision of the Minister to issue the certificate the character of a "decision to which this Act applies" within the meaning of s 5 of the ADJR Act and, by this implied partial repeal of s 5, contracts the jurisdiction conferred upon the Federal Court by s 8 of the ADJR Act.
There is a difficulty with adopting the common law doctrine of implied repeal to permit characterisation of the law containing the implication as a law made by the Parliament under the power conferred by s 77(i) of the Constitution to define the jurisdiction of a federal court. A law which on its face does not purport to redefine a conferral of jurisdiction may not answer the description of a law "defining" the jurisdiction of a federal court for the purposes of s 77(i). A law for the withdrawal of a subject-matter from a subsisting conferral of jurisdiction, namely by amending the statutory expression by reference to which the conferral is made, may not be a law with the specificity required by s 77(i). In the absence of argument in this case, it is inappropriate to pursue the point.
However, the present case at least attracts the general proposition that a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably16. An example is Sched 1 of the ADJR Act, to which reference has been made. That proposition reflects the general principles respecting implied repeal to which Gaudron J referred in Saraswati v The Queen17. Her Honour said18:
The result is that, in enacting the provisions in the FOI Act with respect to conclusive certificates, the Parliament did not clearly state its will to redefine the jurisdiction of the Federal Court under the ADJR Act. The nature of the conclusiveness given the decision is to be seen within the operation of the FOI Act. So long as it remains in force and has not been revoked, for example under the procedures indicated in s 58A, the certificate withdraws the documents in question from access by the legally enforceable right conferred by s 11.
That does not deny the anterior question of law, namely whether the decision to issue the certificate will withstand judicial review under the ADJR Act. It may be that various of the grounds specified in s 5 of that statute can have but limited or no operation with respect to applications such as the present brought under the ADJR Act. For example, the range of relevant considerations may be very wide and the range of irrelevant considerations very narrow. The content of a requirement to provide natural justice to the person aggrieved by the decision may be very limited. However, such questions are for determination by the Federal Court when dealing with the applications for review.
Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 356‑357 [15]. ↩
(1995) 185 CLR 410 at 458. See also DJL v The Central Authority (2000) 201 CLR 226 at 236‑238 [12]-[13]. ↩
cf Willocks v Anderson (1971) 124 CLR 293 at 297‑298. ↩
See Courtice v Australian Electoral Commission (1990) 21 FCR 554. ↩
cf Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121 at 134. ↩
(1991) 172 CLR 1. ↩
(1991) 172 CLR 1 at 17. ↩
(1961) 106 CLR 268 at 276 per Fullagar J, 290 per Windeyer J. ↩
(1961) 106 CLR 268 at 280. ↩
(1961) 106 CLR 268 at 275. See also Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 375 [67]. ↩
(1961) 106 CLR 268 at 285. ↩
(1961) 106 CLR 268 at 290. ↩
(1973) 129 CLR 1 at 34. ↩
By force of Items 13 and 14 of Sched 4 of the Federal Magistrates (Consequential Amendments) Act 1999 (Cth). ↩
(1995) 183 CLR 168 at 181, 212‑213, 231. ↩
(1995) 183 CLR 168 at 193. ↩