Administrative Appeals Tribunal Act 1975 (Cth) - s.37

United States v Aluminium Co of America 148 F 2d 416 (1945)

Coco v A.N. Clark (Engineers) Limited (1969) RPC 41

Duchess of Argyll v Duke of Argyll (1967) 1 Ch 302

Attorney-General v Jonathon Cape Limited (1976) 1 QB 752

Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534

Re Brennan and The Law Society of the Australian Capital Territory (No. A.84/29, 5 July 1985)

Sankey v Whitlam (1978) 142 CLR 1

Saltman Engineering Company Limited v Campbell Engineering Company Limited (1948) 65 RPC 203

Ansell Rubber Company Pty Limited v Allied Rubber Industries Pty Limited [1967] VicRp 7; (1967) VR 37

Re Howard and The Treasurer of the Commonwealth of Australia (No. A.84/154, 29 April 1985)

1. The Tribunal declares that there exist reasonable grounds for the claims made in the certificate issued 15 June 1984 under s.33(2) of the Freedom of Information Act 1982 (Cth).

2. The Tribunal affirms the decision under review.

This is a review of a decision not to grant to the applicant, Mr Laurence William Maher, access under the Freedom of Information Act 1982 (Cth) ("the FOI Act") to paragraphs 4 and 5 of a letter, dated 30 September 1980, from the then Attorney-General of the United States of America, Mr Benjamin R. Civiletti, to the then Attorney-General of the Commonwealth of Australia, Senator the Honourable Peter D. Durack, QC.

2. On 15 June 1984, the then Attorney-General of the Commonwealth, Senator the Honourable Gareth Evans, QC, issued under s.33(2) of the FOI Act a certificate with respect to the subject letter which read:

1984 by Laurence W. Maher for access to a letter

dated 1 October 1980 from the then United States

Attorney-General referred to at page 6 of the

Press Release No. 73 of 1980 of the

Attorney-General of the Commonwealth; I, GARETH

JOHN EVANS Attorney-General, having examined the

document described in the Schedule to this

Certificate, hereby certify in accordance with

sub-section 33(2) of the Act that I am satisfied

that that document is exempt

(i) under sub-paragraph 33(1)(a)(iii) of the Act

because the disclosure of information would

or could reasonably be expected to cause

damage to the international relations of the

Commonwealth; and

(ii) under paragraph 33(1)(b) of the Act because

it would divulge information or matter

communicated in confidence by or on behalf

of the United States Government to the then

Attorney-General of the Commonwealth.

For the purposes of sub-section 33(3) of the Act,

the particular parts of the document by reason of

which the certificate is given are identified as

paragraphs 4 and 5 of the said document."

This certificate did not expressly state that the Attorney- General was satisfied that disclosure under the FOI Act of the subject letter would be contrary to the public interest. However, it was issued under s.33(2) and I am content to infer such a statement from it.

3. Access to paragraphs 4 and 5 of the letter was refused, by the agency, reliance being placed upon ss.33(1)(a)(iii) and 33(1)(b) of the FOI Act. Mr Maher was granted access to the remainder of the document under s.14 of the FOI Act. At the hearing of the review, Mr Maher requested that the Tribunal determine the question whether there were reasonable grounds for the claim made in the certificate of 15 June 1984 that the letter was exempt under s.33 of the FOI Act.

4. Much of the hearing was necessarily conducted in private because of the provisions of s.58C of the FOI Act, though the applicant himself was excluded from only a small part of the proceedings. However, after the hearing several documents were forwarded to the Tribunal which were exhibits tendered in evidence during the private hearing. These exhibits were in the possession of the respondent prior to the hearing and, in my view, were relevant documents which ought to have been made available to the Tribunal either under the disclosure required by s.37 of the Administrative Appeals Tribunal Act 1975 (Cth) or, to the extent that those documents came into the hands of the respondent after the lodgement of the s.37 documents, in a subsequent lodgement complying with the intent and spirit of s.37. As they have now been so lodged with the Tribunal, I have received them as part of the public evidence and have given them the following numbers:

TC.18 Copy of agreement between the Government of

Australia and the Government of the United

States of America relating to co-operation

on antitrust matters, dated 29 June 1982

TC.19 Copy of a letter, dated 10 May 1984, from Mr

Charles S. Stark, Chief Foreign Commerce

Section Antitrust Division to Mr David

Edwards, Legal Counsellor at the Australian

Embassy, Washington

TC.20 Copy of a press release by the then

Attorney-General, Senator the Honourable

Peter Durack, QC, dated 13 August 1980.

5. Now that those materials are part of the public evidence in these proceedings, not subject to the restrictions imposed by s.58C, I am able to give reasons for my decision which are not subject to any restriction as to distribution. In formulating my reasons for decision, I refer to the public material, that is, the s.37 documents, the three documents I have mentioned and the evidence given by and submissions made by Mr Maher. In forming my views, I have also had regard to the private evidence adduced and the private submissions made on behalf of the respondent but it is not necessary to refer to them in these reasons.

6. For the purpose of my decision, I have not found it necessary to call for and to inspect the two paragraphs for which exemption has been claimed.

7. There is in evidence a press release by Senator the Honourable Peter Durack, QC, dated 5 October 1980 which outlines the events which led to the subject letter. During the 1970s, private litigation in the United States of America, particularly litigation seeking treble damages in suits under the antitrust laws of the United States, raised problems for companies and organisations in other countries of the world and for the governments of those countries. Senator Durack cited from the "Antitrust Guide for International Operations" issued by the United States Department of Justice on 26 January 1977 :

"where foreign transactions have a substantial and

foreseeable effect on United States commerce they

are subject to United States law regardless of

where they take place.".

Senator Durack referred to the fact that United States law may be applied to non-United States nationals and that the extra territorial jurisdiction of the United States antitrust laws extends to the foreign commerce of the United States.

8. I may interpolate that that principle was established in United States v Aluminium Co of America 148 F 2d 416 (1945) ("the Alcoa Case"), in which a Canadian Corporation was held to be in violation of the Sherman Act by virtue of its agreement with aluminium producers to stay out of the United States market. Judge Learned Hand said, at p.443, that "any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends;", at least where those effects were intended. Further examination of the principle may be found in Areeda & Turner "Antitrust Law", 1st ed (1978), Vol.I, at Chapter 2E.

9. Private litigation of this type was encouraged in the United States by the provision of treble damages and such suits were not subject to control either by the Government of the United States or by the Governments of other countries affected. Yet such a suit could very often affect not only the citizens and residents of countries other than the United States but also the policies of the Governments of those countries.

10. In the 1970s, a private proceeding of this type, known as the Westinghouse Case, was commenced in the United States claiming treble damages against a number of companies, four of which were incorporated in and resident in Australia. The subject of the proceedings was an alleged uranium cartel. Not only did those proceedings affect the Australian companies, they also affected the Government of Australia in its control and regulation of the export of uranium from Australia.

11. During the 1970s and early 1980s, legislation was passed in many countries of the world giving some protection against proceedings of this nature, either by way of preventing the disclosure of relevant evidence, by way of inhibiting enforcement of judgments or by way of providing for the recovery back of sums paid pursuant to judgment. But there was no total solution to the problem having regard to the extra-territorial effect which the Courts of the United States gave to the laws of that country.

12. Senator Durack's press release of 5 October 1980 records other steps that were taken to minimise the problems. The press release states:

"For some time Australia and the United States have

been negotiating a bilateral agreement designed to

avoid the kind of differences which had arisen in

the uranium matter from occurring in the future.

That proposed agreement would formulate a process

of intergovernmental consultation on the whole

range of each government's interests so that

consultations could take place in advance of

proceedings or any allied processes.

'I was encouraged' Senator Durack said 'by the

warm response to the proposed agreement which the

United States Attorney-General, Mr Civiletti,

expressed when he was in Australia last month.

There are difficulties but I attach the greatest

importance to agreement in this area. I was left

in no doubt following our discussions that the

United States Government holds the same view. If,

as Mr Civiletti hoped, such an agreement could

become a model, so much the better. At the end of

the day these differences must be resolved by

agreement.' Negotiations for an agreement are

continuing.

The Attorney-General added that he was fortified

in the views expressed above as to the United

States Government's attitude by a letter dated 1

October 1980 which he had just received from Mr

Civiletti."

The letter from Mr Civiletti last referred to is the subject letter of 30 September 1980, its date being wrongly recorded. I pause at this moment to say that those paragraphs of Mr Civiletti's letter to which access has been given clearly support what Senator Durack had to say of it.

13. Discussions were subsequently held between the Attorneys-General for the two countries and the agreement of 29 June 1982, Exhibit TC.18, was negotiated and finalised. The treaty recognised that conflicts had arisen between the interests reflected in the United States antitrust laws and policies and those reflected in Australian laws and policies and that there was a need for such conflicts to be resolved by mutual respect for each country's sovereignty and with due regard for considerations of comity. The treaty established a structure for the notification by the Government of Australia of policies that it considered may have antitrust implications for the United States and by the Department of Justice or the Federal Trade Commission of the United States of any antitrust investigation that might have implications for Australian laws, policies or national interests. The treaty provided that, upon receiving any such notification, the recipient country could request consultation with the other and that the countries would thereafter enter into consultations and should seek earnestly to avoid possible conflict between the respective laws, policies and national interests. The treaty provided for frank disclosure and for confidentiality. Article 2.7 and Article 3 read:

"2.7 Each Party during consultations shall provide

as detailed an account as possible, under the

particular circumstances, of the basis and nature

of its antitrust investigation or proceeding, or

its national policy and its implementation, as the

case may be.

3. Documents and information provided by either

Party in the course of notification or

consultations under this Agreement shall be

treated confidentially by the receiving Party

unless the providing Party consents to disclosure

or disclosure is compelled by law. The Government

of the United States shall not, without the

consent of the Government of Australia, use

information or documents provided by the

Government of Australia in the course of

notification or consultations under this Agreement

as evidence in any judicial or administrative

proceeding under United States antitrust laws.

The Government of the United States shall not,

however, be foreclosed from pursuing an

investigation of any conduct which is the subject

of notification or consultations, or from

initiating a proceeding based on evidence obtained

from sources other than the Government of

Australia."

The treaty contained other detailed provisions but I need not describe them.

14. A further matter of fact which I should mention is that the United States Government has not objected to the release to Mr Maher of those passages of Mr Civiletti's letter that have been released to him but has objected to the release of paragraphs 4 and 5 and has put the view that the letter was confidential. Mr Charles S. Stark, Chief of the Foreign Commerce Section Antitrust Division, wrote on 10 May 1984, Exhibit TC.19, as follows:

"There are two basic reasons why we would be

concerned if the letter were released in its

entirety. The first of these concerns is a

general, but nonetheless important, one. It is

important to protect the confidence of

communications between governments, where those

communications are made with the express or tacit

expectation that they would be held in confidence.

Both of our countries have freedom of information

laws based on our shared view that, to the extent

consistent with their proper functioning, the

activities of democratic governments should be

open to the scrutiny of their citizens.

Nonetheless, it is our standard practice in

responding to requests for disclosure made under

our law to protect the confidentiality of

communications from other governments that were

made in the expectation of confidentiality, unless

the other government consents to disclosure. It

would be difficult if not impossible for our

governments to communicate with one another with

the candor that is presumed and required by our

close relationship if we did not have that sort of

assurance. Indeed, the express provisions for the

confidentiality of communications between us

contained in our 1982 Antitrust Cooperation

Agreement -- provisions that are of great

importance to both of us -- underscore that

recognition.

Our second concern is specific to the contents of

the letter between our former Attorneys General.

The letter refers to, and in substance is part of,

the negotiations that led to our 1982 agreement.

As you know, we recently concluded an antitrust

understanding with the Government of Canada, and

are likely to be engaged in similar discussions

with other governments in the future. Our ability

to conduct negotiations of that nature would be

impaired if a detailed record of positions taken

and views exchanged in previous negotiations

(whether in their entirety, or partially) were

freely available. While we of course enter into

all such negotiations in a spirit of good faith

and candor, each such bilateral setting is in

important respects sui generis and could be

severely complicated if every interim position and

view we expressed in an earlier negotiation with

another government were available to subsequent

negotiating partners.

For these reasons, we reiterate our view that the

fourth and fifth paragraphs of the September 1980

letter should not be released. Release would be

inconsistent with our expectation of the

confidentiality of such communications generally,

and with our interest in preserving the

confidentiality of this communication in

particular. Release would also undermine our

confidence in the confidentiality of such

communications in the future, and to that extent

would detract from the openness and candor in

these matters which we both hope for and expect

from one another.

I have discussed the contents of this letter with

our Department of State, and can confirm that it

reflects the views of both the Department of State

and the Department of Justice."

15. Those are the principal facts to be considered. The law to be applied is set out in s.33 of the FOI Act which reads, inter alia,

"33.(1) A document is an exempt document if

disclosure of the document under this Act would be

contrary to the public interest for the reason

that the disclosure -

(a) would, or could reasonably be expected to,

cause damage to -

.....

(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."

16. It is convenient to deal first with the question whether the paragraphs of the letter for which exemption is claimed, paragraphs 4 and 5, were communicated in confidence by the Attorney-General of the United States, Mr Civiletti, to the Attorney-General of Australia, Senator Durack.

17. The law recognises that a contractural obligation for confidentiality may be expressed between the parties or it may be implied, as it often has been in master and servant and agency relationships. The law also recognises that information may be received in confidence and that that confidence may be protected whether or not there be a contractural term as to confidentiality. The protection of confidential information communicated during negotiations for contract is a clear example. See Coco v A.N. Clark (Engineers) Limited (1969) RPC 41. But there are many others. In Duchess of Argyll v Duke of Argyll (1967) 1 Ch 302, the matrimonial relationship was held to give rise to an obligation of confidentiality with respect to disclosures between spouses. In Attorney-General v Jonathan Cape Limited (1976) 1 QB 752, it was accepted that, as the doctrine of joint responsibility was an established feature of the British form of government, matters leading to a cabinet decision were to be regarded as confidential.

18. Sections 33(1)(b) and 45 (the general confidentiality exemption) of the FOI Act are concerned not only with communications which would be protected by courts under the common law principles with respect to express or implied obligations of confidence or by courts of equity with respect to communications made under special relationships but also with information that was communicated to an agency in confidence, that is to say, information that was communicated and received under an express or inferred understanding that the communication would be kept confidential. (cf. Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534, 542; Re Brennan and The Law Society of the Australian Capital Territory (No. A 84/29, delivered 5 July 1985) paras.30, 37-38).

19. It is not to be expected that precedents can be found in the legal authorities for all the types of circumstance that meet that criteria. The courts of common law require there to be an express or implied duty of confidence, a breach of which would give rise to an action for damages. Courts of equity require a fiduciary or other special relationship and for it to be established that the information that was in fact communicated was confidential and ought to be protected. In the past, courts have not been much concerned with communications to or between agencies of the Commonwealth for, until the coming into operation of the FOI Act in this country, the disclosure of such information could be enforced only under the principles established in the Crown privilege cases (see, eg, Sankey v Whitlam (1978) 142 CLR 1). There are few precedents which deal directly or even indirectly with the problem which the Tribunal now has to consider.

20. It is clear, however, from such authorities as there are, that a conclusion may be drawn that information was communicated in confidence either because of the particular relationship between the parties or because the information communicated was and would be recognised to be of a confidential nature. The relationships of solicitor and client, of doctor and patient, of priest and penitent and of husband and wife are special relationships of the type which prima facie give rise to a relationship of confidence. It has been recognised that communications between a person seeking advice and an adviser may well give rise to a relationship of confidence. Negotiations may give rise to a confidential situation. In the administrative field, it has been recognised that communications within Cabinet or between Cabinet and the Crown have a particular element of confidentiality about them. In the present case, the letter from Mr C.S. Stark, Exhibit TC.19, suggests that communications between Governments are to be treated as having a special confidentiality about them.

21. If a communication includes confidential information, that fact may, when taken with the surrounding circumstances, give rise to an inference that the information was communicated in confidence, but it may not be simple to identify information that was and would be recognised to be confidential. In Saltman Engineering Company Limited v Campbell Engineering Company Limited (1948) 65 RPC 203 at p.215, Lord Greene said that "something which is public property and public knowledge" cannot per se provide any foundation for proceedings of breach of confidence. In the United States, "The Restatement of the Law of Torts" (1st ed.) Ch.IV, Section 757 contains this comment with respect to trade secrets, at pp.5-6:

"Secrecy. The subject matter of a trade secret

must be secret. Matters of public knowledge or of

general knowledge in an industry cannot be

appropriated by one as his secret. Matters which

are completely disclosed by the goods which one

markets cannot be his secret. Substantially, a

trade secret is known only in the particular

business in which it is used. It is not requisite

that only the proprietor of the business know it.

He may, without losing his protection, communicate

it to employees involved in its use. He may

likewise communicate it to others pledged to

secrecy. Others may also know of it

independently, as, for example, when they have

discovered the formula by independent invention

and are keeping it secret. Nevertheless, a

substantial element of secrecy must exist, so

that, except by the use of improper means, there

would be difficulty in acquiring the information.

An exact definition of a trade secret is not

possible. Some factors to be considered in

determining whether given information is one's

trade secret are : (1) the extent to which the

information is known outside of his business; (2)

the extent to which it is known by employees and

others involved in his business; (3) the extent

of measures taken by him to guard the secrecy of

the information; (4) the value of the information

to him and to his competitors; (5) the amount of

effort or money expended by him in developing the

information; (6) the ease or difficulty with

which the information could be properly acquired

or duplicated by others."

Megarry J said, at p.47, in Coco v A.N. Clark (Engineers) Limited, cited above,

"Something that has been constructed solely from

materials in the public domain may possess the

necessary quality of confidentiality : for

something new and confidential may have been

brought into being by the application of the skill

and ingenuity of the human brain. Novelty

depends, on the thing itself, and not upon the

quality of its constituent parts. Indeed, often

the more striking the novelty, the more

commonplace its components."

In Ansell Rubber Company Pty Limited v Allied Rubber Industries Pty Limited [1967] VicRp 7; (1967) VR 37 at 49, Gowans J, after referring to numerous authorities, said:

"There is very little in these English cases to

enable one to identify a 'trade secret'. But some

collation of the characteristics may be attempted,

without trying to make it an exhaustive statement.

Its subject-matter may not be a process in common

use, or something which is public property and

public knowledge, but if it is the result of work

done by the maker upon materials which may be

available for the use of anybody, so as to achieve

a result which can only be produced by somebody

who goes through the same process, it will be

sufficient. All of its separate features may have

been published, or capable of being ascertained by

actual inspection by any member of the public, but

if the whole result has not been achieved, and

could not be achieved, except by someone going

through the same kind of process as the owner, it

will not fail to qualify by reason of the

publication. It may derive from a maker in

another country without losing its character, if

it is used, or entitled to be used, by the owner

alone in the country in which the owner operates.

There is no suggestion of the need for invention.

...".

22. However, those cases were directed at trade secrets, a subject remote from the present problem. More assistance can be gained from decisions dealing with communications among Ministers and the bureaucracy or to them. A discussion of some of the circumstances in which there is a need to protect the confidentiality of documents held by the bureaucracy may be found in Re Howard and The Treasurer of the Commonwealth of Australia (No. A 84/154, delivered 29 April 1985), in which I said, with respect to s.36 of the FOI Act:

"In Re Murtagh and Commissioner of Taxation, cited

above, the Tribunal said, at p 121 :

'It is clear that the public interest is not

to be limited by the prescription of

categories or classes of documents the

disclosure of which to the public would be

contrary to the public interest. The public

interest is not to be circumscribed. All

documents must be examined to ascertain

whether, having regard to the circumstances,

their disclosure would be contary to the

public interest.'

The Tribunal went on to consider a number of

American authorities on Exemption (b)(5),

including (at pp.121-2) the following remarks of

Wilkey J in Jordan v Department of Justice 591 F

(2d) 753 (1978) :

' "... The privilege attaches to inter- and

intra-agency communications that are part of

the deliberative process preceding the

adoption and promulgation of an agency

policy. There are essentially three policy

bases for this privilege. First, it

protects creative debate and candid

consideration of alternatives within an

agency, and, thereby, improves the quality

of agency policy decisions. See NLRB v

Sears Roebuck & Co, 421 US at 151; 95 S Ct

1504; Montrose Chemical Corp v Train, 160

US App DC 270, 273; [1974] USCADC 40; 491 F 2d 63, 66 (1974).

Second, it protects the public from the

confusion that would result from premature

exposure to discussions occurring before the

policies affecting it had actually been

settled upon. See Grumman Aircraft Eng Corp

v Renegotiation Board, note 77 supra, 157 US

App DC at 129; 482 F 2d at 718; Sterling

Drug Inc v FTC, [1971] USCADC 275; 146 US App DC 237, 245-246;

[1971] USCADC 275; 450 F 2d 698, 706-708 (1971). And third, it

protects the integrity of the

decision-making process itself by confirming

that 'officials should be judged by what

they decide(,) not for matters they

considered before making up their minds'.

Grumman Aircraft Eng Corp v Renegotiation

Board, supra. See Boeing Airplane Co v

Coggeshall, 108 US App 106, 112; 280 F 2d

654, 660 (1960); Carl Zeiss Stiftung v VEB

Carl Zeiss Jena, note 77 supra, 40 FRD at

325-326".'

The Tribunal referred to the decisions of Conway v

Rimmer [1968] UKHL 2; (1968) AC 910 and Sankey v Whitlam (1978)

142 CLR 1, both of which considered public

interest in the context of Crown privilege. The

Tribunal concluded, at p.123 :

'... Broadly speaking, s 36 can be seen as

an attempt by the legislature to protect the

integrity and viability of the

decision-making process. If the release of

documents would impair this process to a

significant or substantial degree and there

is no countervailing benefit to the public

which outweighs that impairment then it

would be contrary to the public interest to

grant access.'

The Tribunal also referred to the object of the

Act expressed in s.3(1)(b) and the reference in

that paragraph to 'essential public interests'. A

generally similar approach was taken by the

Tribunal in Re Lianos and Secretary to the

Department of Social Security (N.83/893, delivered

19 February 1985), though the Tribunal there gave

rather more attention to the Crown privilege

cases.

Reference should also be made to the remarks of

Lord Reid in Conway v Rimmer, cited above, where

his Lordship said at p.952 :

'I do not doubt that there are certain

classes of documents which ought not to be

disclosed whatever their content may be.

Virtually everyone agrees that Cabinet

minutes and the like ought not to be

disclosed until such time as they are only

of historical interest. But I do not think

that many people would give as the reason

that premature disclosure would prevent

candour in the Cabinet. To my mind the most

important reason is that such disclosure

would create or fan ill-informed or captious

public or political criticism. The business

of government is difficult enough as it is,

and no government could contemplate with

equanimity the inner workings of the

government machine being exposed to the gaze

of those ready to criticise without adequate

knowledge of the background and perhaps with

some axe to grind. And that must, in my

view, also apply to all documents concerned

with policy making within departments

including, it may be, minutes and the like

by quite junior officials and correspondence

with outside bodies. Further it may be that

deliberations about a particular case

require protection as much as deliberations

about policy. I do not think that it is

possible to limit such documents by any

definition. But there seems to me to be a

wide difference between such documents and

routine reports. There may be special

reasons for withholding some kinds of

routine documents, but I think that the

proper test to be applied is to ask, in the

language of Lord Simon in Duncan's case

[1942] UKHL 3; (1942) AC 624, 642, whether the withholding

of a document because it belongs to a

particular class is really "necessary for

the proper functioning of the public

service".'

These remarks were referred to and in general

approved in the judgments delivered in Sankey v

Whitlam, cited above.

In considering the public interest element of

s.36, the Tribunal may be called upon and in this

review is called upon to have regard not only to

the incidents of the disclosure of the particular

documents but also to the effect which

availability for disclosure to the public under

the FOI Act of like documents would have upon the

decision-making processes of the Minister and of

his Department. The task reposed upon the

Tribunal by s.36 is not that which arises in the

Crown Privilege cases of which Conway v Rimmer,

cited above, and Sankey v Whitlam, cited above,

are pre-eminent examples, or that undertaken in

Jordan v Department of Justice, cited above, which

considered US Exemption b(5). Yet those

authorities throw light upon the elements of the

public interest to be considered and the

circumstances in which traditionally it has been

thought that the reservation of documents from

public view should be maintained. From such

authorities and from decisions of Tribunals,

including Re Peters and Department of the Prime

Minister and Cabinet (1983) 5 ALN No.218, Re

Waterford and Department of Treasury, cited above,

Re Murtagh and Commissioner of Taxation, cited

above, Re Chandra and Minister for Immigration and

Ethnic Affairs (1984) 6 ALN 257, Re Burns and

Australian National University and Re Lianos and

Secretary to the Department of Social Security it

is possible to postulate that in each case the

whole of the circumstances must be examined

including any public benefit perceived in the

disclosure of the documents sought but that :

(i) the higher the office of the persons

between whom the communications pass

and the more sensitive the issues

involved in the communication, the

more likely it will be that the

communication should not be

disclosed;

(ii) disclosure of communications made in

the course of the development and

subsequent promulgation of policy

tends not to be in the public

interest;

(iii) disclosure which will inhibit

frankness and candour in future

pre-decisional communications is

likely to be contrary to the public

interest;

(iv) disclosure, which will lead to

confusion and unnecessary debate

resulting from disclosure of

possibilities considered, tends not

to be in the public interest;

(v) disclosure of documents which do not

fairly disclose the reasons for a

decision subsequently taken may be

unfair to a decision-maker and may

prejudice the integrity of the

decision-making process."

See also the comments on s.45 by Deputy President Hall in Re Brennan and The Law Society of the Australian Capital Territory (A 84/29, delivered 5 July 1985) paras.37-47).

23. In the light of the above discussion, I turn now to the circumstances of the particular case.

24. The situation under consideration in this review is one where there were communications with a view to a joint agreement being reached between Australia and the United States, a factor which, in itself, tends to give rise to a confidential relationship.

25. Moreover, as I have said, communications may be made not under any express agreement or even any necessarily implied agreement as to confidentiality but pursuant to a general understanding that communications of that nature will be treated in confidence. Mr Stark's letter states that Mr Civiletti's letter was written subject to a "tacit expectation" that it would be held in confidence. Such a statement is not unexpected in communications of this nature. The cases referred to in Re Howard and The Treasurer of the Commonwealth of Australia make it plain that there is a general understanding that communications at the highest level of government which are of a sensitive nature will be so treated. It is equally to be expected that sensitive communications between two governments will be so regarded.

26. Clearly the higher the office of the persons between whom the communications pass, the more likely it is that the communications may be confidential. Matters which are dealt with at the highest level of government tend to be of a sensitive nature and, moreover, the fact that a communication is between persons at a high level of government may give a sensitivity to communications that might otherwise seem to be of a routine nature.

27. Not only was the subject letter one between the Attorneys-General each acting on behalf of his own Government but Mr Stark's letter makes it clear that paragraphs 4 and 5 contained sensitive material of the type that, in the view of the United States Government, ought to be kept confidential. In the circumstances of this case, I am prepared to conclude, on the basis of Mr Stark's letter, Exhibit TC.19, that paragraphs 4 and 5 of Mr Civiletti's letter contained specific sensitive and confidential material.

28. Mr Maher submitted that there was nothing in the terms of the subject letter to the extent that it had been disclosed which showed that it was a confidential communication. He pointed to the fact that the letter concluded with greetings from Mr Civiletti to Senator Durack. But, as was said in Re Howard and The Treasurer of the Commonwealth of Australia, there is a tendency for a pre-decisional communication written between persons at the highest level of decision-making with respect to sensitive subjects to be regarded as documents which ought not to be generally available for public inspection and therefore to be subject to a tacit understanding as to confidentiality. The disclosed parts of Mr Civiletti's letter do not lead me to think that it was written on a different basis.

29. Mr Maher relied upon the fact that the letter was referred to by Senator Durack in his press release of 5 October 1980. But Senator Durack did not make public the whole of the letter and I do not conclude that he intended to do so or that he thought that the whole of the letter should be made public.

30. Mr Maher further submitted that a cloak of confidentiality cannot be created retrospectively and that, if a communication is not made in a confidential situation, then confidentiality cannot be claimed simply because some officer has subsequently looked at the letter and has thought that it ought to have been confidential. I do not dispute that contention but, as I have said, it appears to me that this letter was one which I would expect to have been written and received under a general understanding as to confidentiality. I accept Mr Stark's contention in his letter that,

"Our ability to conduct negotiations ... would be

impaired if a detailed record of positions taken

and views exchanged in previous negotiations

(whether in their entirety, or partially) were

freely available."

Such concepts are well understood. It seems to me to be unlikely that Mr Civiletti's letter was either written or received on the understanding that the letter would be freely available to the public. It was written from one Attorney-General to another during the course of negotiations on a subject that was then sensitive and likely to remain so for a considerable time. These are circumstances which give rise to an understanding as to confidentiality whether or not the confidentiality be expressed.

31. I am therefore satisfied that disclosure of paragraphs 4 and 5 of the subject letter would disclose matters communicated in confidence from the Attorney-General of the United States to the Attorney-General of Australia.

33. Mr Maher submitted that it cannot be the case that the mere fact that another government has expressed concern about the disclosure of a communication can be a complete case for showing that there are reasonable grounds in favour of non-disclosure. Plainly, Mr Maher is correct. Nevertheless, although the issue as to public interest is not correlative to that of confidentiality, the two concepts are not unrelated. In Re Howard and The Treasurer of the Commonwealth of Australia, I discussed the reasons why it was not in the public interest that communications of a particular type should be disclosed to the public. It is considerations of that nature which have led officials of government and representatives of governments to an expectation that certain communications will be received and held in confidence, whether confidentiality is expressly claimed or not. Thus, the very reasons which lead to the conclusion that a communication has been made in confidence often provide, and in this case are, reasons which would support a conclusion that access to the document should not, in the public interest, be granted under the FOI Act.

34. Of course, it is necessary to look at other features of the case to ascertain whether there are specific or special reasons favouring disclosure of the document in the public interest. In the Crown privilege cases, there is always the element of public interest in ensuring that justice is done in the particular proceeding. That is one factor which has to be taken into account if it exists both in those cases and in any ascertainment of the public interest under s.33 or s.36. But no such circumstance here exists. Nor is it shown that the document does not support the statement that Senator Durack made of it in his press release of 13 August 1980. In brief, Mr Maher has not brought forward any particular factor supporting disclosure of the document in the public interest. He claims access to the document as a member of the general public and relies upon no special circumstance relating to the document itself other than Senator Durack's mention of it in his 1980 press release.

35. I take into account the objects expressed in s.3 of the FOI Act but am of the view that the letter was written in confidence from one Attorney-General to another, that the views put forward by Mr Stark in his letter opposing disclosure are sound and that, in the light of the opposition from the Government of the United States to the release of the paragraphs 4 and 5 of the letter, there are reasonable grounds for the claim that disclosure of those paragraphs would be contrary to the public interest.

36. It follows that the claim made in the certificate dated 15 June 1984 should be upheld and that paragraphs 4 and 5 of the letter are exempt under s.33.

37. The claim made for exemption under s.33(1)(a)(iii) is, I think, equally sound.

38. In this respect it could merely have been put that the publication of information which had been communicated from the Attorney-General of the United States to the Attorney-General of Australia and which was claimed by the Government of the United States to be confidential could be expected to cause damage to the international relations of the Commonwealth. However, the decision under review and the decision to issue the conclusive certificate also took into account the nature of the treaty between Australia and the United States with respect to consultation on antitrust problems affecting the two countries. That treaty provides both for the free communication of all relevant information and for the confidentiality of that information and of any consultations which may take place thereon.

39. In my opinion, the disclosure of the letter which the United States Government regards as having been written in confidence could prejudice both the flow of information and the process of consultation and dispute solving which the treaty has established.

40. Mr Maher correctly submitted that s.33(1)(a)(iii) has in mind that disclosure would or could reasonably be expected to cause actual and significant damage to relations between Australia and another country. Those were not his precise words but that was the purport of the submission. I accept that the mere possibility of damage is not sufficient. However, I do not accept that it is necessary to find loss or damage which can be proved in monetary terms. The phrase "damage to international relations of the Commonwealth" comprehends intangible damage to Australia's reputation though such damage may be difficult to assess. International relations have never been matters easy to define or to quantify. Regard must be had, inter alia, to the relationships between particular persons in one government and persons in another. Damage to personal relationships may cause considerable harm for a time at least.

41. I accept that it must be shown that the publication of a document claimed to be exempt could reasonably be expected to cause damage to the international relations of the Commonwealth. A mere allegation to that effect is not enough. There must be cause and effect which can reasonably be anticipated. But if it can reasonably be anticipated that disclosure of the document would lessen the confidence which another country would place on the Government of Australia, that is a sufficient ground for a finding that the disclosure of the document could reasonably be expected to damage international relations. Trust and confidence are intangible aspects of international relations.

42. Therefore, I would conclude that the disclosure to the public of this letter for which confidentiality is claimed by the Government of the United States could reasonably be expected to inhibit the flow of information which would otherwise come to Australia from the United States under the antitrust treaty and would inhibit co-operation thereunder. I would conclude that the disclosure of the matter claimed by the Government of the United States to have been communicated in confidence to the Government of Australia would be likely to damage the trust and confidence which the Government of the United States places in the Government of Australia.

43. Mr Maher submitted that the United States would not take offence if the Administrative Appeals Tribunal came to a view different from that of the Government and further that the United States Government would, in any event, comply with its legal obligations under the treaty. But the operation of a treaty such as the treaty of 29 June 1982 requires, for its effective fulfilment, trust and wholehearted co-operation. That is what the treaty seeks to achieve and it establishes a structure to that end. The disclosure of the letter written by the former Attorney-General of the United States to the former Attorney-General of Australia in circumstances which, in the view of the United States Government, gave rise to a tacit expectation of confidentiality, would be likely to significantly inhibit the co-operation which is essential for the effective working of the treaty.

44. Thus, I am satisfied that publication of the letter could reasonably be expected to cause damage to the international relations of the Commonwealth. For like reasons I am satisfied that publication of the letter is contrary to the public interest.

45. In the circumstances, the claim made in the certificate of 15 June 1984 with respect to the operation of s.33(1)(a)(ii) should be upheld and the decision under review with respect to that aspect of the matter should be affirmed.

46. There are two further matters which I should mention. The first is that Mr Maher submitted that whatever reasons prevailed for restricting disclosure of Mr Civiletti's letter prior to the execution of the treaty, those considerations no longer apply. However, Mr Stark's letter shows that there are continuing reasons why the document should not be disclosed. In any event, I am satisfied that the conditions which would have made the letter sensitive prior to entering into the treaty still prevail. The extra-territorial effect of the United States antitrust laws is still a current and volatile issue.

47. Secondly, I should mention that there is no evidence that Mr Civiletti's letter has been made public in the United States under the United States Freedom of Information legislation or otherwise. Accordingly, I proceed upon the assumption that confidentiality remains attached to it both in the United States and in Australia.

48. For the reasons I have stated, I am satisfied that reasonable grounds exist for the claim made in the certificate of 15 June 1984 and that I should affirm the decision under review.