Victorian Public Service Board v Wright

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 to an official document of a Minister, other than an exempt document: s. 13. Part IV of the Act provides that certain documents are exempt documents. Under s. 28(1), which deals with Cabinet documents, a document is an exempt document if it is -

(a) the official record of any deliberation or decision of the Cabinet;

(b) a document that has been prepared by a Minister for the purpose of submission for consideration by the Cabinet;

(c) a document that is a copy of, or contains an extract from, a document referred to in paragraph (a) or (b); or

(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.

Section 28(4) provides: For the purpose of this Act, a certificate signed by the Secretary to the Department of the Premier and Cabinet certifying that a document is one of a kind referred to in a paragraph of sub-section (1) establishes conclusively that it is an exempt document. In addition to Cabinet documents, there are other documents which are declared to be exempt under ss. 29 to 38, but no provision is made for a certificate of exemption for them. It is necessary only to refer particularly to s. 30, sub-s. (1) of which provides: 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 opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the Government; and

Section 20(1) of the Act provides that where a request is duly made by a person to an agency or Minister for access to a document of the agency or an official document of the Minister and any charge laid down by the regulations has been paid, that person shall be given access to the document in accordance with the Act. An agency or Minister is, under s. 20(2), not required to give, although neither is precluded from giving, access to a document at a time when it is an exempt document. Under s. 51 provision is made for the internal review by the principal officer of an agency of, amongst other things, a decision to refuse access to a document in accordance with a request to an agency. Under s. 50 of the Act as it was at the relevant time, if an application for internal review is made and the applicant is dissatisfied with the result of the application or he has not been informed of the result within a specified time, he may under s. 50 appeal to the County Court against the original decision refusing access to the document. The relevant sub-sections of s. 50 are as follows:

(a) confirm or vary the decision appealed from, or substitute, or make in addition, any decision that might have been made by an agency or a Minister under this Act; or

(b) remit the matter to the agency or Minister for reconsideration in accordance with any directions or recommendations of the Court.

(4) On the hearing of an appeal the Court shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 31(3), or in section 33) where the Court is of opinion that the public interest requires that access to the document should be granted under this Act.

(5) Where a certificate has been given in respect of a document under section 28(4), the powers of the Court do not extend to reviewing the decision to give the certificate and shall be limited to determining whether a document has been properly classified as an exempt document within the meaning of section 28.

Part VI of the Act has now been amended to provide for the review of decisions by application to the Victorian Administrative Appeals Tribunal rather than the County Court, but this appeal falls to be decided upon the provisions of the Act as they were before that amendment.

By a letter to the respondent dated 29 September 1983, the general manager of the Public Service Board refused the respondent the access which he sought to the document in question upon the ground that, in his opinion, to give access would disclose opinions, advice and recommendations prepared by officers for the purposes of the deliberative processes involved in the functions of government. Upon this ground, if made out, the document may have been an exempt document under s. 30, although not one in respect of which a certificate of exemption could be given under s. 28. The general manager also relied upon the ground that the document was prepared with the intention of its being used as a submission for consideration by Cabinet and accordingly its disclosure would be contrary to the public interest. This ground appears to have been taken with s. 28(1)(b) in mind, but it did not assert that the document had been prepared by a Minister, a circumstance which would have been necessary to meet the requirements of that provision and so qualify the document for the grant of a certificate of exemption. In fact, at that time, no certificate of exemption had been given in respect of the document.

Pursuant to s. 51 of the Act, the respondent applied for the review of that decision by the principal officer of the Public Service Board. The result of this internal review was announced in a letter to the respondent from the chairman of the Board dated 7 November 1983. The decision was given in the following terms:

While the document you have requested was not prepared by a Minister, it was prepared for the purpose of providing information, advice and recommendations by the Public Service Board to a Minister for the purpose of submissions by the Minister to Cabinet. It therefore appears to me that the release of this document would be contrary to the public interest on the same grounds that Parliament saw fit to maintain the confidentiality of Ministerial submissions to Cabinet. Accordingly, after having reviewed the decision to deny access, I have decided that this document is an exempt document by reason of the operation of s. 30(1) of the Freedom of Information Act.

The respondent gave notice of appeal to the County Court on 30 November 1983 and when the appeal came on for hearing, the agency, the Public Service Board, tendered a certificate dated 10 October 1984 and signed by the Secretary to the Department of the Premier and Cabinet certifying under s. 28(4) of the Act that the document to which access was sought was an exempt document of a kind referred to in s. 28(1)(d).

The problem raised before the County Court on appeal arises from an inconsistency between s. 28(4), which provides that a certificate that a document is one of a kind referred to in s. 28(1) establishes conclusively that it is an exempt document, and s. 50(5), which, having provided that the powers of the court do not extend to reviewing the decision to give a certificate, goes on to provide that, where a certificate has been given, those powers shall be limited to determining whether a document has been properly classified as an exempt document within the meaning of s. 28.

The learned County Court judge concluded that he should hear evidence and argument addressed to the question whether the document to which access was sought was one which was properly classified as exempt under the Act. He adjourned the matter, however, to enable the agency to test that conclusion and was subsequently ordered to show cause before the Full Court of the Supreme Court why a writ of prohibition should not issue prohibiting him from further considering the question which he proposed to consider. The grounds upon which the order nisi was granted, as subsequently amended pursuant to leave granted by the Full Court, were:

1. The said certificate signed by the Secretary of the Department of the Premier and Cabinet signed the 10th day of October 1984 and accepted in evidence by the learned Judge establishes conclusively that the document referred to in the certificate is an exempt document.

2. The powers of the County Court in respect of the document are limited to the making of a determination as to whether or not the document has been properly classified as an exempt document.

The order nisi was discharged upon its return before the Full Court and this appeal from that decision is brought by special leave.

The second ground upon which the order nisi was granted may be explained by reference to an argument which was, apparently, pursued before the Full Court, but was not relied upon before us. The argument was that effect might be given to both s. 28(4) and s. 50(5) of the Act by limiting the powers of the County Court on appeal to determining whether the document in question had been properly classified as an exempt document in the sense that it had been properly identified as the document to which the certificate referred. Upon this argument the County Court would be precluded from considering whether the document referred to in the certificate was properly classified as falling within one or other of the descriptions contained in s. 28(1) of the Act and would be limited to the question of identification.

Before us the learned Solicitor-General, who appeared for the appellant agency, adopted a different and, if we may say so, a more arguable approach. He contended that although the court might, if the evidence warranted it, determine that the document was not properly classified as falling within one of the categories contained in s. 28(1), no binding effect could be given to the court's determination, which must be regarded as advisory only. Nevertheless, so the submission continued, the agency might, if it wanted to do so, give effect to the decision by granting access to the document notwithstanding that its exempt status remained conclusively established by the certificate. If it did not, that would be an end of the matter and the certificate would remain conclusive of the exempt character of the document.

The submission to the contrary made on behalf of the respondent was that if the court determined that the document was not properly classified, the certificate ceased to operate to establish conclusively that it was an exempt document. It was conceded that the court could not as a result grant access to it if that course was excluded because the document was one specifically mentioned in s. 50(4), but the court could, it was said, remit the matter to the agency with directions or recommendations under s. 50(3). Upon the matter being remitted, the submission continued, the agency would no longer be able to rely upon the certificate because of the determination of the court, but it might otherwise determine, if appropriate, that the document was an exempt document within one of the categories laid down by the Act, subject, it would seem, to further review both internally and by way of appeal.

The Solicitor-General placed reliance upon a comparison between the Victorian Act and the Commonwealth Freedom of Information Act 1982, in its original form. That Act was the model for the Victorian Act. If any intention is revealed by the comparison, however, it seems to us to be the contrary of that suggested in his submission. Under the Commonwealth Act, it was provided that a certificate signed by the Secretary to the Department of the Prime Minister and Cabinet that a document was in one of the specified categories of Cabinet documents established conclusively, subject to Pt VI of the Act, that it was an exempt document of that kind: s. 34(2). In Pt VI provision was made for the review by the Administrative Appeals Tribunal of decisions relating to access to documents but the power of that Tribunal in relation to a Cabinet document which was the subject of a conclusive certificate did not extend to reviewing the decision to give the certificate: s. 58(3). In such a case the Administrative Appeals Tribunal was required, if the applicant for access so requested, to refer to a Document Review Tribunal the question whether there existed reasonable grounds for the claim that the document was an exempt document: s. 58(4). The Document Review Tribunal was a separate tribunal which was required to consider the question referred to it and decide whether, notwithstanding the existence of the certificate, in its opinion reasonable grounds existed for the claim for exemption: s. 67(1). The appropriate Minister may then have had regard to that decision and may have decided to withdraw the claim that the document was an exempt document and, if he did so, to revoke the certificate in force in respect of the document: s. 67(3).

It may be noted that the Commonwealth scheme was changed by amending Act No. 81 of 1983, with effect from 1 January 1984. The Document Review Tribunal was abolished and s. 58(3) and (4) of the Commonwealth Act were amended to empower a specially constituted Administrative Appeals Tribunal, in the case of Cabinet documents in respect of which a certificate is in force in accordance with s. 34 of that Act, not to review the decision to give the certificate but nevertheless, on the request of the applicant, to determine the question whether there exist reasonable grounds for the claim to exemption. If the Tribunal determines that there do not exist reasonable grounds for the claim to which the question relates, the appropriate Minister is required, not later than twenty-eight days after the determination of the Tribunal is communicated to him, to make a decision either to revoke or not to revoke the certificate: s. 58A(1). If the Minister decides not to revoke the certificate, he must notify the applicant in writing and lay a copy of the notice before each House of the Parliament: s. 58A(3).

It will be observed that the Victorian Act, as it was, departs from the original Commonwealth scheme in two fundamental respects. In the first place, the review of decisions, other than internal review, for which it provides is by way of appeal to a court and not by way of application to an administrative tribunal. In the second place, the scheme for dealing with exempt documents is left incomplete. Under the Commonwealth legislation, clear and comprehensive provision was made for review in the case of documents, including Cabinet documents, which were the subject of a certificate of exemption. It was expressly provided that in relation to them the claim for exemption was to be considered by a Document Review Tribunal specially constituted for the purpose and possessing an advisory function only. The review of decisions, other than internal review, was otherwise carried out under the Commonwealth Act by the Administrative Appeals Tribunal. It may also be observed that, in contrast to s. 67(3) of the Commonwealth Act which required the Minister to do no more than have regard to a decision of the Document Review Tribunal, the Victorian Act makes no provision for the effect to be given to decisions of the court in relation to documents covered by a certificate of exemption. Whilst there are limitations upon its powers in sub-ss. (4) and (5) of s. 50, no distinction is drawn between the effect of its decisions made in respect of the exempt documents to which those sub-sections refer and the effect of its decisions in relation to other documents covered by the Act. Clearly in relation to other documents, the court's decisions are intended to be binding.

Part of the difficulty in construing the Victorian Act may arise from the fact that, looking at the legislation as it was at the relevant time, s. 50(5) of the Victorian Act represents an unsatisfactory attempt to adapt s. 58 of the Commonwealth Act to the Victorian scheme. As we have said, s. 58 provides in sub-s. (3) that the powers of the Administrative Appeals Tribunal "do not extend to reviewing the decision to give the certificate" but in sub-s. (4) provision is made for reference of the matter to the Document Review Tribunal. Section 50(5) of the Victorian Act provides that the powers of the court "do not extend to reviewing the decision to give the certificate" but goes on to provide its powers "shall be limited to determining whether a document has been properly classified as an exempt document within the meaning of section 28". There is an apparent conflict between these two parts of s. 50(5) and also between s. 50(5) and s. 28(4), the latter being the sub-section which provides that a certificate of exemption given in relation to a document establishes conclusively that the document is an exempt document. It is necessary, therefore, to give to the relevant provisions a construction which resolves the apparent conflict. In doing so, some assistance is to be derived from the Act.

(1) The object of this Act is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by -

(b) creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in sub-section (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

In addition, s. 16(1) requires Ministers and agencies to administer the Act with a view to making the maximum amount of government information promptly and inexpensively available to the public. In the light of these sections it is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information. It is, in our view, evident that such a purpose would not be promoted by adopting a narrow construction of the appellate functions of the County Court under the Act or by imposing any limitation upon the effect of its decisions beyond any limits plainly imposed by the Act itself. Whilst s. 3 refers to "exceptions and exemptions necessary for the protection of essential public interests" it is not to be supposed that the court lacks the capacity, which it is accustomed to exercise on other occasions, to give proper consideration to those matters where the Act requires it to do so.

The legislature chose to provide for review by way of appeal to a court and the ordinary function of a court is to make binding decisions and not to express opinions which might be disregarded at the will of the executive. It is to be assumed, in the absence of clear indication to the contrary, that it was intended that the County Court should exercise the jurisdiction conferred upon it by the Act as a court and not in a manner alien to its normal functions: see National Telephone Co. Ltd. v. Postmaster-General [1] ; Electric Light and Power Supply Corporation Ltd. v. Electricity Commission of N.S.W. [2] .

1. [1913] A.C. 546, at p. 552. 2. (1956) 94 C.L.R. 554, at pp. 559-560.

Whilst s. 28(4) provides that a certificate establishes conclusively that a document is an exempt document, that provision is necessarily qualified by s. 50(5) which expressly provides for the court to determine whether a document, which is the subject of a certificate, has been properly classified as an exempt document within the meaning of s. 28. Whatever the effect of the court's decision, it cannot be said in the light of s. 50(5) that a certificate is conclusively binding upon the court and for that reason s. 28(4) affords no real assistance in the construction of s. 50(5). It may be added that to view s. 28(4) in this way is not to deprive it of effect. A certificate nevertheless conclusively establishes the exempt character of a document for all administrative purposes, including, as the case may be, any initial decision by an agency or Minister or any internal review.

Turning to s. 50 itself, it is possible, we think, to give some meaning to the words in sub-s. (5) providing that "the powers of the Court do not extend to reviewing the decision to give the certificate" without restricting the effect of a determination of the court with respect to the proper classification of a document as an exempt document. There is no obligation imposed by the Act upon the Secretary to the Department of the Premier and Cabinet to sign a certificate in respect of a document which is exempt under s. 28, nor is there any obligation imposed upon any person to deny access to an exempt document. With this in mind, the correct construction of s. 50(5) is, we think, that the court may review the proper classification of a document as an exempt document but, because of the restriction upon its powers, may not otherwise review a decision to grant a certificate or a claim for exemption based upon it. The determination of the court concerning the proper classification of a document will be a binding determination and will preclude further reliance upon the certificate if the appeal is allowed. Moreover, if the court in addition determines that the document, for which exemption is claimed under s. 28, does not fall within any of the categories of Cabinet documents described in sub-s. (1) of that section, it may grant access to the document because the prohibition in s. 50(4) against its doing so can have no application. By virtue of such a determination the document will not be a document referred to in s. 28.

Subject to the express limitation against reviewing a decision to give a certificate, the court will also have the powers referred to in s. 50(3). Whilst s. 50(5) speaks in terms of limitation when it says that where a certificate has been given in respect of a document under s. 28(4), "the powers of the Court shall be limited to determining whether a document has been properly classified as an exempt document within the meaning of section 28", this provision in fact operates to confer power rather than restrict it, because it qualifies the earlier provision in the same sub-section that the powers of the court do not extend to reviewing a decision to give a certificate. Viewed in this way and having regard to the object of the Act, this provision cannot be seen as cutting down the powers conferred by s. 50(3), which are in general terms and may be contrasted with the powers conferred by s. 50(4) where there is an express exception in relation to certain documents, including documents referred to in s. 28.

In our opinion there is no reason why the County Court should not pursue the course which it proposed.