THE NEWS CORPORATION LIMITED & ORS. v NATIONAL COMPANTES AND

Federal Court of Australia|1984-03-01|Before: Fisher JJ, John J, Mason J, Fisher J

Administrative Law - Judicial Review - Documents in possession of Nationai Companies and Securities Commission - Whether exempt under s.38 - Consideration of secrecy provisions in statutes -~

Whether s.47 of National Companies and Securities Commission Act

National Companies and Securities Commission Act s.47.

THE NEWS CORPORATION LIMITED & ORS. v NATIONAL COMPANTES AND SECURITIES COMMISSION

CORAM: Bowen C.J., St. John and Fisher JJ, 1 March 1984

No.N.S.W. G312 of On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by

THE NEWS CORPORATION LIMITED MIRROR NEWSPAPERS LIMITED,

i. The appeal be upheld. 2. The cross-appeal be upheld. 3. The matter be remitted to the Administrative Appeals

The National Companies and Securities Commission pay to

The News Corporation Limited, Mirror Newspapers Limited, Nationwide News Pty. Limited and Control Investments Pty. Limited half their costs of the appeal and

) No.N.S.W. G312 of NEW SOUTH WALES DISTRICT REGISTRY) 1983

On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by J.D. Davies, J. President

BETWEEN: THE NEWS CORPORATION LIMITED MIRROR NEWSPAPERS LIMITED,

Respondent CORAM: Bowen C.J., St.John and Fisher Jd. 1 March 1984 REASONS FOR JUDGMENT BOWEN C.J. and FISHER J. In this matter we have had the

advantage of perusing the draft reasons of St.John J. We agree with his conclusion that the appeal and cross appeal be upheld

and generally with his reasons. As this is the first occasion

upon which ss.12 and 38 of the Freedom of Information Act 1982 have been considered by the Full Court of this Court we think 1t

desirable that we express our own reasons for upholding the

The object of the Freedom of Information Act 1982 is conveyed by its long title "An Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies". An agency is defined

to mean "a Department or a prescribed authority". A prescribed authority is defined and given a wide meaning. The object of the

Act is described in some detail in s.3. It is to extend as far as possible the right of the Australian community to access to

information in possession of the Government of the Commonwealth

(a) making available information about the operations of departments and public authorities; and

(b) creating a general right of access to information in

documentary form in the possession of Ministers, departments and public authorities limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and

The right of access 1S given by s.ll. This provides that, subject to the Act, every person has a legally enforceable right to obtain access in accordance with the Act to a document of an agency other than an exempt document or an official document of a Minister other than an exempt document. There are some documents to which the Act does not apply because they are made available in other ways (s.12). Also it may be noted that the Act applies only to a document which becomes a document of an agency or an official document of a Minister after the date of commencement of Part III of the Act (sub-s.12(2)). A document of an agency or an official document of a Minister which relate to a person's personal affairs or which are necessary to enable documents to which access is given to be understood are covered by a provision for relation back to an earlier time. (See now

In recognition of the delicate balance between the public's interest in knowing and in expressing 1ts opinion and the need in some cases to protect confidentiality and privacy, the Act provides a wide range of exemptions (see Commonwealth v

John Fairfax & Sons Limited (1981) 55 A.L.J.R. 45 at p.49 per

There are two Schedules to the Act which list various

bodies which are wholly or partly exempt from its provisions.

Also the Act contains provisions exempting various types of

documents. These documents are mainly the subject of exemptions

set forth in Part IV. Thus, exemption is provided in Part [VY for documents affecting national security, defence, international relations and relations with States (s.33); Cabinet documents (3.34); Executive Council documents (s.35); internal working documents (s.36); documents affecting enforcement of the law and protection of public safety (5.37); documents to which secrecy provisions of other enactments apply (s.38); documents affecting financial or property interests of the Commonwealth (s.39); documents concerning certain operations of agencies (s.40); documents affecting personal privacy (s.41); documents subject to legal professional privilege (s.42); documents relating to certain business affairs, for example, trade secrets (s.43); documents affecting national economy (s.44); documents

containing material obtained in confidence (s.45); documents disclosure of which would be contempt of Parliament or contempt

of court (s.46); and certain documents arising out of companies

It has been suggested that the form of s.3 15 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. Indeed, there 15 a vast body of American

authority concerning the interpretation 2f the American Freedom of Information Act 5 U.S.C. 552, which was in some respects used as a model, which suqgests that the provisions of the Act concerning access are to be "generously construed" while the exemptions are to be "narrowly construed". (See cases cited in

United States Code Annotated Title 5 Government Organization and

Employees pp.82 et seq and Cumulative Supplement for use in 1983 pp.12 et seq). This approach in America may 1n part be due to the presence in the statute of the following provision following

"S52(c) This section does not authorize withholding of information or limzt the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress."

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 aocorrect 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.

The fact that a document is exempt under this Act 1s not intended to prevent or discourage Ministers or agencies from publishing or giving access to documents (including exempt

documents) where they can properly do so or are required by law

to do so (s.14). However there is a practical restriction upon

the operation of 3.14 which arises from the fact that ss.91 ana 92 limit the protection given against certain actions, for example, defamation and in respect of offences, to access given because it was required by the Act or in the bona fide belief

One other provision should be noted, that is, that where

it is possible for the agency or Minister to make a copy of a

document with such deletions that the copy would not then be an exempt document and would not by reason of the deletions be

misleading, then access may be available to the document with the

exempted material deleted (s.22 and see sub-s.58(2)).

It is with this background i1n mind that we turn to consider the two particular exemptions which were argued before us on this appeal. It will be noted that the decision on these

two exemptions will not finally determine the appellants' ("News

Corporation") right of access to the relevant documents.

The first question argued before us was, as St.John J.

says, whether s.47 of the National Companies and Securities

Commission Act 1979 ("the N.C.S.C. Act") 15 an enactment of the

kind referred to in s.38 of the Freedom of Information Act 1982 ("the Act"). This is a matter to be decided by reference to the

words of s.38, construed in their context. It is in the

"38. A document is an exempt document if there is in force an enactment applving specifically to information of a kind contained in the aocument and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition 1s absolute or is subject to exceptions or

Section 47 of the N.C.S.C. Act does prohibit certain persons "from disclosing information", but the crucial question 1s whether it can be said that that information is "of the kind"

referred to in s.38. Section 47 refers to the particular persons

and information to which it applies in the following terms:

"47(1). Subject to this section, a person who is, or has at any time been -

(a) appointed for the purposes of this Act or any other prescribed Act;

(b) engaged as a member of the staff of the Commission; or

shall not, except to the extent necessary to perform his official duties, or to perform or exercise such a function or power, either directly or indirectly, make a record of, or divulge or communicate to any person, any information that 1s or was acquired by him by reason of his being or having been so appointed, engaged or authorized, or make use of any such information, for any purpose other than the performance of his official duties or the performance or exercise of that function or power.

Penalty $5,000 or imprisonment for one year, or both."

Section 47 describes the information, the disclosure of which 1s prohibited, as information that has been acquired by a person who 1s within the categories referred to in paras.47(1)(a)-(c). In other words the important aspect 1s the capacity 1n which the relevant person acquires the information.

If the disclosure of this information 1s to be exempt under s.38

ef the Act, it must be because it is "information of a kind

contained in a document in respect of which there is an enactment

applying specifically to information" of that kind.

The N.C.S.C. argued before the Tribunal and before us that s.47 satisfied the requirements of s.38 because it defined the kind of document by reference to the capacity in which the relevant person received the information. The Tribunal was of the opinion that by so doing 3.47 sufficiently described the category of anformation with which s.38 deals. With respect to the learned President of the Tribunal and his careful reasoning we cannot accept this conclusion as correct. We are firmly of the opinion that s.38 expressly and intentionally directs attention to the nature of the information contained in the document and not to the capacity of the person who has received the information. This is made clear by the words in s.38

Section 38 defines a particular category of exempt documents with some care, although the generality of the words used leaves scope for arqument. These documents are exempt because, stated generally, they contain information and because there is in force an enactment relating to that information which prohibits its disclosure. Thus the document is defined by

reférence to the anformation it contains and the fact that

persons are prohibited from disclosing that type of information.

The crucial question is as to the kind of information which 1t is necessary for the document to contain before it can be elevated to the class of exempt documents. The section states it as being information in respect of which an enactment "applies specifically", which enactment prohibits persons therein referred to from disclosing it. For the purpose of deciding whether the document 1s exempt, the section necessarily requires that the nature of the information 1n the subject document first

be determined. Then the question is to ascertain whether "there

is in force an enactment applying specifically to information" which the subject document has been found to contain ("the particular information"). In this respect the legislature has stated quite explicitly that to have relevance an enactment must apply "specifically" to the particular ainformation. It 1s not enough for the enactment to have general application or to be

formulated in such general terms that it would encompass the

particular information without expressly referring to it. The enactment must be formulated with such orecision that it refers

Viewing the crucial words in s.38 1n this way, it 1s, in our opinion, clear where the legislature has placed the emphasi's in identifying exempt documents under this head. It applies

exclusively to documents which contain information of a specified

kind; and to ascertain what information the subject document contains must be the first step in determining a claim to exemption. It is only after both the particular information in the document and any relevant enactment has been identified that the question arises whether that enactment refers to persons and prohibits them from disclosing the particular information. No support can be found in the words of the section for an argument which ignores the emphasis which is placed on the information contained in the document and which seeks to establish as crucial the fact that persons referred to in the enactment are prohibited from disclosing information. Such an argument overlooks the fact

that the section goes to some lengths to identify the type of

information which they are prohibited from disclosing. It attaches no necessary significance to the status of the persons

prohibited other than that they are referred to in the enactment.

In our opinion this construction of 8.38 receives support from a consideration of the enactments which prohibit persons from disclosing information. We were referred to many secrecy provisions. Counsel for News Corporation divided these into three categories: these which define the kind of information by reference to the characteristics or qualities of the information, those which rely upon the status or capacity of the person in possession of the information and an intermediate hybrid group. The latter category refers specifically to the capacity of the person in possession of the information and only generally to the characteristics of the information. It is not necessary to consider further this category except to say that whether it is within s.38 may depend upon the significance it is

proper to attach to the word "specifically" in that section.

A few examples of the two contrasting categories will suffice to illustrate the ambit of 5.38. Section 70 of the

"7O(1). A person who, being a Commonwealth officer,

publishes or communicates, except to some person to whom he is authorized to publish or communicate it, any fact or document which comes to his knowledge, or into his possession, by virtue of his office, and which it is his duty not to disclose, shall be guilty of an offence."

We agree with the contention of counsel for the News Corporation

that this provision is similar to s.47 in that it defines the

information which is not to be disclosed only by reference to the

fact that 1t came into the possession of the officer by virtue of

Section 78 of the Crimes Act 1914 by way of contrast in sub-s.(1) makes specific reference to the characteristics of the

information. It is, to the extent relevant, as follows:

"7B8¢1). If a person for a purpose intended to be prejudicial to the safety or defence of the Commonwealth or a part of the Queen's dominions-

(a) makes a sketch, plan, photograph, model, cipher, note, document or article that is likely to be, might be or is intended to be directly or indirectly useful to an enemy or a foreign power;

(b) obtains, collects, records, uses, has in his possession or communicates to another person a sketch, plan, photograph, model, cipher, note, document, article or information that 1s likely to be, might be or is intended to be directly or indirectly useful to an enemy or a foreign power; or

We do not wish to express a final view about a section which has not been the subject of full argument and which is not in issue in the proceedings before us. However, as at present advised we see no reason to disagree with the submission of counsel for News Corporation that s.78 of the Crimes Act illustrates a type of section which would bring about exemption under s.38 whereas s.70 of the Crimes Act illustrates a type of section which would not

exclude documents in the possession of an officer from

We were also referred to contrasting provisions in the

Atomic Energy Act 1953. Section 53 1s in the following terms:

"53. A member of the Commission or an Advisory Committee, or an officer or employee of the Commission, shall not, except in the course of his duty or with the

approval of the Commission, communicate to a person any information concerning the activities of the Commission

or the contents of a document to which he has had access by reason of his position as such a member, officer or employee.

Penalty: Imprisonment for 7 years." This section in its general reference to the contents of a

document may be regarded as similar to s.47 of the N.C.S.C. Act.

On the other hand s.48 of the Atomic Energy Act may be regarded as furnishing another illustration of a provision making specific reference to the characteristics or qualities of information which is not to be disclosed. To the extent relevant it provides:

"48(1). A person who has knowledge of or access to,

or has in his possession or under his control, a photograph, sketch, plan, model, article, instrument,

appliance, note or other document, or any information, which 1s capable of conveying , or is or includes restricted information and-

The definiticn of restricted information covers information ona

In our view s.38 should be construed as applying when enactments specify the nature or quality of information which is not to be disclosed; it has no application if the enactment identifies the information merely by reference to the capacity of the person who has received or is in possession of the

On the question whether a corporation can have "personal

affairs" as contemplated by para.12(2)(a) of the Act, it is not as easy to reach a firm conclusion. The Act clearly indicates a dichotomy between business and non-business affairs but whether it sees a corporation as having non-business affairs is uncertain. Clearly a natural person 1s perceived as having non-business affairs referred to as "personal affairs" but with corporations there is no such certainty. There 1s no provision in the Act which unambiguously uses the expression "personal affairs" 1n relation to the affairs of a corporation. However the Act differentiates between natural and corporate persons

when dealing with business affairs, labelling such affairs in the

case of a natural person as "business or professional" and

"business commercial or financial" in the case of a corporation.

In s.3 of the Act the legislature acknowledges that the right of the Australian community to access to information in documentary form must be limited to the extent necessary to

protect the private and business affairs of persons. Doubtless the expression "person" here encompasses both natural and

corporate persons. But thas is the only instance in the Act in _which the non-business affairs of a person are described as his or its "private" affairs, although the marginal notes to certain

sections refer to the protection of a person's privacy.

Paragraph 12(2)(a) of the Act gives a person whose personal affairs are referred to in a document an extended right to access to the document. In the ordinary course his or its

entitlement to access is limited to documents which became a

document of the agency after the commencement of the Act. However if the document relates to the personal affairs of a

person, access may be obtained if the document became a document

of the agency during the periad of 5 years prior to commencement

of the Act. This period has since been altered by the Freedom of

Information Amendment Act 1983. In the ordinary course a person

ancludes a corporation unless a contrary intention appears.

However as Mann C.J. said in Bennett-Hullin v Clark (T.P.) & Co.

[1944] V.L.R. 45 at p.46 when speaking of the word "person":

"This 1s a technical rule of convenience limited to the construction of written documents, and 1s quite contrary to all practice in spoken language, as was vointed out by Lord Blackburn in Pharmaceutical Society v London &

Provincial Supply Association [18803 5 App.Cas. 857 at

It may be of significance that the provisions placing a

document relating to "personal affairs" 1n a separate category were not in the bill as originally introduced into the Senate. They were later included as were the provisions entitling a

natural person to have incorrect information concerning his

In extending the period of access in respect of personal affairs, it is uncertain whether the legislature had in mind that a corporation may have personal in addition to business affairs. If a corporation can have such affairs, the question for determination is whether it was intended to extend the period in respect of a corporation or to limit the extension to affairs which are personal and in some instances peculiar to a natural

person. As has been mentioned the words "personal affairs" are

used on a number of occasions in the Act. In many instances such use is undoubtedly restricted to natural persons andin no instance are the words used with certainty in respect to the

In sub-s.41(1), under the marginal note "Documents affecting personal privacy", a document 1s exempt if it involves

unreasonable disclosure of information relating to the personal affairs of "any person (including a deceased person)". The

reference to deceased person and lack of reference to a dissolved

corporation or one struck off the register indicates that the

legislature had in mind only a natural person as having, for the

purposes of the section, personal affairs. Thi confirmed by sub-s.41(3) which specifically deals with information (relating to . personal affairs) of a medical or psychiatric nature, the disclosure of which could be "prejudicial

to the physical or mental health or well being" of the person.

It is significant that when the Act deals with the need to preserve privacy of business documents, which need is without

doubt relevant to natural persons as well as corporate persons,

it expressly differentiates between such persons and the nature of their affairs. Section 43 provides that, as far as a natural person is concerned, the document is exempt if it discloses

information in respect of his business or professional affairs. T

This exemption contrasts with that granted in the case of a

corporate person, where it is granted to the "business commercial

er financial affairs" of "an organization or undertaking".

Section 27 differentiates in like manner when dealing with requests for business documents. It again refers to the business affairs of a person (obviously a natural person though it does not use this expression) as his business or professional

affairs whereas 1t uses the terminology "business commercial or

financial affairs of an organization or undertaking" ir respect

The expression "personal affairs" 1s also used in s.48

in circumstances where 1t can only relate to a natural person. That section empowers a person, who must be an Australian citizen

or a person whose continued presence in this country 1s not

subject to limitation as to time, to request amendment of incorrect information concerning his personal affairs. This right

It was put to us, as i1t was to the Tribunal, that a corporation must be seen as having personal affairs, otherwise it

would always he excluded from obtaining remission of the charge

for provision of a document. This contention was based on the provisions of sub-s.30(3) which are as follows:

"30(3). Wathout limiting the matters which the agency or Minister may take into account for the purpose of determining whether or not to remit a charge under sub-section (2), the agency or Minister shall take into account-

(a) whether the payment of the charge or of any part of the charge would cause financial hardship to the

(b) whether the document to which the applicant seeks access relates to the personal affairs of the

(c) whether the giving of access is inthe general public interest or in the interest of a substantial section of the public."

It 15 not a necessary consequence of the conclusion that a corporation does not have personal affairs that it be precluded

from obtaining a remission of fees. All that the sub-section

does is to indicate that when exercising its discrerion on remissions, the agency 1S obliged to take into account the fact that the document relates to personal affairs. It does not say that if it does not so relate, a remission shall in no circumstances be granted. It merely states that, 1f it does so

relate, this is a relevant consideration to which some weight

These provisions of the Act support the view that it 1s not intended that the expression "personal affairs" 1s applicable to a corporation. There is nowhere to be found an unequivocal indication to the contrary. There are clear indications that the legislation attaches considerable significance to the personal affairs of a natural person. The privacy of such personal affairs is to be protected, information about them must be correct or at least liable to be corrected on request, access to documents containing information about personal affairs should be more readily and in some circumstances less expensively obtainable. These are all cogent considerations which are of greater significance toa natural person than to a corporation, and justify disparate treatment of this aspect of the affairs of

We agree for those reasons witn the opinion of St.John

J. that the expression "personal affairs" in para.12(2)(a) refers

only to the affairs of a natural person and not to the affairs of

We would allow the appeal and cross-appeal and remit the matter to the Administrative Appeals Tribunal. Each party has

been partly successful. We think the appropriate order for costs would be that the Commission pay half the costs of News

"sare a trae copy of 'i, 1 for _-dgment hepela af the Cus:

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On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by J. ).

This appeal from a2 decision 2F the Administrative Appesais Tribunal, raises a question oF law which may 32 simply

expressed. That question 1s whether s.47 of the Natzronal

Companies and Securities Commission Act 1979 ("the N.C.S.C.

Act") 1s an enactment of the kind referred to in s.38 of the

Freedom of information Act 1982 ("the Act"). The apesllants

urge the simple answer "no" and the respondent, suprorting the decision appealed from, the Simple answer "yes". A cross-appeal involving an entirely separate question, is dealt

The Act, which Counsel for the respondent described as interim legislation with a long pneriod of gestation, has,

The facts with which this Court is, and the Tribunal was concerned, are simple and lacking in controversy. The National Companies and Securities Commission ("the Commission"), a body corporate which owes its existence to the N.C.S.C. Act is, by that Act, charged with the duty, inter alia, of surveillance of the acquisition of shares in circumstances wnere control or potential control of companies May pass from one to another. An expansive treatment of its

functions and structure is contained in the reascns fer

decision of a Full Court of this Court in The News Corporation

Limited v. National Companies and Securities Tommission,

In exercise of its duty of surveillance, the Commission undertoox the investigation of transactions between lst August 1981 and 5th Occober 1982 by the appellants in the shares in Thomas Wationwide Transport Limited. The documents received and compiled pursuant to that investigation were sought to be declared accessible to the appellants pursuant to the Act in proceedings before the Tribunal. In refusing the application the Tribunal held that 3s.47 of the N.C.S.C. Act was an enactment of the kind referred to in s.38 of the Act,

and the documents were, therefore, exempt from disclosure. It

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