//
[2015] AATA 945
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2015-12-08
Original judgment source is linked above.
I certify that the eighty preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ............................[sgd].....................................
[1] Section 42 exempts from access a document that would be privileged from production in legal proceedings on the ground of legal professional privilege.
[2] Section 47C exempts from access a document whose disclosure would disclose certain matters that have taken place in the deliberative processes involved in the functions of, among others, an agency or Minister.
[4] Exhibit A; [8] and an article from The Australian at Annexure EK2
[14] Deputy Secretary, Governance, in PM&C. She has been a public servant for 25 years and has held her current position since September 2013. In that position, she is responsible for machinery of government, legal policy and governance issues across the Australian Public Service (APS), Cabinet and the coordination of support to the Prime Minister and Portfolio Ministers. In addition, Ms Kelly is the Chief Operating Officer responsible for financial management, Information Communication Technology and corporate services. She reports directly to the Secretary of PM&C on matters within her responsibility.
[18] FOI Act; s 4(1): paragraph (a) of definition of "exempt document". Paragraph (b) does not apply as PM&C is not an agency that is exempt from the operation of the FOI Act in respect of any documents.
[22] [2012] AATA 838; (2012) 59 AAR 35 at [18]; 39-40
[27] [1979] AATA 179; (1979) 2 ALD 634 at 639 -640
[28] [1979] AATA 179; (1979) 2 ALD 634 at 642-643
[29] [1979] AATA 179; (1979) 2 ALD 634 at 644
[30] Any discretion that there is lies outside the bounds of the FOI Act although it is recognised in it. Section 3A provides that it does not intend to limit the power or a Minister or of an officer of an agency to publish or give access to information or a document despite any restriction in the FOI Act and whether or not access has been requested under s 15. Section 58(2) expressly provides that "Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted."
[32] Singh [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599 at [54]; 163; 609-610
[33] Singh [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599 at [57]; 164; 610-611
[34] Singh [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599 at [58]; 164; 611
[35] Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; 169 ALR 400; 60 ALD 342; Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ
[37] [2011] AATA 556; (2011) 122 ALD 619 at [28]- [130]; 630-664
[38] Commissioner Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 at 553; 584; 491 per McHugh J; see also Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561 at 552; 564 [9]
[39] [2005] FCA 1247; (2005) 225 ALR 266 at [30]; 279. Appeal allowed, but not on this point, in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128; Finn, Merkel and Stone JJ
[40] See AWB Ltd v Cole [2006] FCA 571; (2006) 232 ALR 743; 91 ALD 741 at 777; 80; [144]-[145] per Young J
[41] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(7)]; 45; 663 (citations omitted) per Young J
[42] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [101]; 410; 766;69 per Young J
[43] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [131]; 417; 773; 76 per Young J
[44] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [132]; 417; 773; 76-77 per Young J
[45] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and at 493; 43 per Deane J
[46] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and see also Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468 at 478-485 per Hunt CJ at CL
[47] Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378 at [29]; 13; 94; 384 per Gleeson CJ, Gaudron, Gummow and Callinan JJ
[48] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [163]; 77; 693 (citations omitted)
[49] Thomason v Campbelltown Municipal Council [1939] NSWStRp 10; (1939) 39 SR (NSW) 347 at 355 per Jordan CJ cited with approval in Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378 at [30]; 14; 95; 385 per Gleeson CJ, Gaudron, Gummow and Callinan JJ
[50] [2005] FCA 356; (2005) 65 IPR 442 at [26]; 447
[51] Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288 at [49]; 298-299; 17; 1302
[52] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ
[53] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [138]; 69; 686
[54] Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88; (2008) 246 ALR 137 at [16]- [18]; 142-143
[55] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; 69 ALR 31 at 482-483; 34-35 per Gibbs CJ. See also Grofam Pty Ltd v ANZ Banking Group [1993] FCA 501; (1993) 45 FCR 445; 117 ALR 669; Northrop, Ryan and Beazley JJ; Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335 at 414-415 per McPherson J, with whom Andrews CJ and Demack J, Gray
v Associated Book Publishers Pty Limited [2002] FCA 1045 at [32] per Branson J and Candacal Pty Ltd v Industry Research and Development Board [2005] FCA 649; (2005) 223 ALR 284; 59 ATR 615 at [53]; 295 per Lee J
[57] [1985] AATA 100; (1985) 7 ALD 626; 3 AAR 169; Davies J
[58] [1984] AATA 249; (1984) 54 ALR 313; 6 ALD 112; Davies J, President, Sir Ernest Coates and RA Sinclair, Members
[59] [1984] AATA 67; (1984) 5 ALD 588; Deputy President Hall and I Prowse and CA Hughes, Members
[60] [1984] AATA 501; (1984) 6 ALD 687 per Deputy President Hall
[61] [1984] FCA 179; (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198; Sheppard J
[62] Harris v Australian Broadcasting Corporation [1983] FCA 242; (1983) 50 ALR 551; 78 FLR 236; 5 ALD 545 at 560; 248; 553; Beaumont J (see also Re Murtagh and Commissioner of Taxation and Re Howard and Treasurer of the Commonwealth of Australia)
[64] [2000] AATA 512 at [54]- [56]
[67] Re Waterford and Department of the Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588 at 606
[68] [1983] FCA 242; (1983) 50 ALR 551; 5 ALD 545 and see below at [42]-[47]
[69] [1984] FCA 179; (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198 at 76-77; 299-300; 210-211
[70] [1984] FCA 8; (1983) 51 ALR 581; Bowen CJ, St John and Fisher JJ
[71] Harris v Australian Broadcasting Corporation and others [1983] FCA 242; (1983) 50 ALR 551;
[1983] FCA 242; 5 ALD 545 and Harris v Australian Broadcasting Corporation (No.2) [1983] FCA 281; (1983) 50 ALR 567; 78 FLR 264; 5 ALD 560
[72] Harris v Australian Broadcasting Corporation (No.2) [1984] FCA 8; (1984) 1 FCR 150; 51 ALR 581; 5 ALD 564; Bowen CJ, St John and Fisher JJ The issue of Ms Harris's standing to make the application under the ADJR Act on the basis that the ABC should have claimed exemption for them under s 36 was not raised either at trial or on appeal. Rather, the proceedings were conducted on the basis that, if the documents were exempt under s 36, the ABC was obliged to refuse access. This was not so at the time just as it is not so under the FOI Act as now in force. Section 14 has since been repealed but, at the time the Harris judgments were delivered, it provided that "Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so." Section 3A, which is summarised at [30] above, now expresses a similar sentiment.
[73] Harris v Australian Broadcasting Corporation (No.2) [1984] FCA 8; (1984) 1 FCR 150; 51 ALR 581; 5 ALD 564 at [18]; 154; 585-586; 568
[74] Harris v Australian Broadcasting Corporation (No.2) [1984] FCA 8; (1984) 1 FCR 150; 51 ALR 581; 5 ALD 564 at [19]- [21]; 154-155; 586; 568-569
[75] Harris v Australian Broadcasting Corporation (No.2) [1984] FCA 8; (1984) 1 FCR 150; 51 ALR 581; 5 ALD 564 at [24]; 156; 587; 569
[76] Re Waterford and Department of the Treasury [1985] AATA 114 at [14]; Deputy President Todd
[77] McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; 220 ALR 587; 88 ALD 12; 41 AAR 23 at [231]; 139; 78; 92 per Jacobson J with whom Tamberlin J agreed, citing Sankey v Whitlam [1978] HCA 20; (1978) 140 CLR 1 at 60 per Stephen J
[79] British Steel Corporation v Granada Television Ltd (1980) 3 WLR 780
[80] Johansen v City Mutual Life Assurance Society Ltd [1904] HCA 43; (1904) 2 CLR 186
[81] Section 47E(a) provides "A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency".
[82] Re Howard and the Treasurer [1985] AATA 100; (1985) 7 ALD 626; 3 AAR 169
[83] Rovere [2015] AATA 462 at [52]
[84] Public Service Act 1999; ss 10(4) and (5)
[86] [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505 at [38]; 39; 526
[87] [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505 at [39]; 40; 527
[89] [1983] FCA 242; (1983) 78 FLR 236; 50 ALR 551; 5 ALD 545 at 246; 561; 554
Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; 69 ALR 31
Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651
AWB Ltd v Cole [2006] FCA 571; (2006) 232 ALR 743; 91 ALD 741
Booker and Department of Social Security [1990] AATA 218
Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88; (2008) 246 ALR 137
Candacal Pty Ltd v Industry Research and Development Board [2005] FCA 649; (2005) 223 ALR 284; 59 ATR 615
Johansen v City Mutual Life Assurance Society Ltd [1904] HCA 43; (1904) 2 CLR 186
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; 220 ALR 587; 88 ALD 12; 41 AAR 23
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; 169 ALR 400; 60 ALD 342
Gray v Associated Book Publishers Pty Limited [2002] FCA 1045
Grofam Pty Ltd v ANZ Banking Group [1993] FCA 501; (1993) 45 FCR 445; 117 ALR 669
Harris v Australian Broadcasting Corporation and others [1983] FCA 242; (1983) 50 ALR 551; 5 ALD 545
Harris v Australian Broadcasting Corporation and Ors [1984] FCA 8; (1983) 51 ALR 581
Harris v Australian Broadcasting Corporation (No.2) [1983] FCA 281; (1983) 50 ALR 567; 78 FLR 264; 5 ALD 560
Kavvadias v Commonwealth Ombudsman (No 2) [1984] FCA 179; (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198
Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288
Re Francis and Minister for Immigration and Ethnic Affairs (No 2) [2012] AATA 838; (2012) 59 AAR 35
Re Howard and Treasurer of the Commonwealth of Australia [1985] AATA 100; (1985) 7 ALD 626; 3 AAR 169
Re James and Others and Australian National University [1984] AATA 501; (1984) 6 ALD 687
Re Murtagh and Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313; 6 ALD 112
Re Philip Morris Limited and Prime Minister [2011] AATA 556; (2011) 122 ALD 619
Re Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson [2015] AATA 361
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128
Re Rovere and Secretary, Department of Education and Training [2015] AATA 462
Re Waterford and Department of the Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588
Re Waterford and Department of the Treasury [1985] AATA 114
Sankey v Whitlam [1978] HCA 20; (1978) 140 CLR 1
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599
I think the legislative intent is that the court has a complete discretion but that the seven matters, or as many as are appropriate, are to be considered. In any particular case, all or any of the appropriate matters may be rejected or given such weight as the case suggests is suitable. ... [R v D [1976] 1 NZLR 436 at 437. See also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41]
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth [1976] HCA 20; (1976) 136 CLR 1 ...). ... "[27]
"... This expression is capable of different meanings, depending on its context. ... [A] statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and 'give weight to them as a fundamental element in making his [or her] determination': R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. But the phrase 'have regard to' can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process."[32]
(f) " It would, of course, be a different case if the documents and information that the Commonwealth relies upon were disclosed under legal compulsion. On any view, the fact that documents and information were disclosed under compulsion would be very relevant to the question whether the person claiming privilege had engaged in inconsistent conduct. There is, moreover, authority to the effect that a production of documents or evidence under compulsion will not result in any waiver of privilege: Goldman v Hesper [1988] 1 WLR 1238 ('Goldman'); Trans America Computer Co Inc v IBM Corporation [1978] USCA9 418; 573 F2d 646 (9th Cir 1978) ('Trans America') at 651."[53]
17 To put the proposition in different terms, if 'it is in the other side's power to destroy the privilege entirely,' ... it can no longer be said that the original holder can reasonably expect any continued confidentiality. In such circumstances, the existence of the privilege cannot be made to turn on whether the other side in fact places the document into evidence or uses it for examination - either legal privilege exists or it does not, and either the client controls it or they do not: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2_) [2007] FCA 1445 at [21] ... In other words, once it is found that the original holder of the privilege cannot control further dissemination of the document, the privilege is destroyed as a matter of law without further inquiry into whether the communication was in fact disseminated._
18 This is not to say that there could never be something less than a full waiver of privilege; rather, the point is that for there to be only a limited waiver, the original holder must still retain full control as to further dissemination of the document. So, for example, providing a witness statement to a party but subject to conditions that the party may use it only for internal purposes, may not read it in court, may not place it into evidence and may not otherwise rely on it in examination or the proceedings generally might constitute a limited waiver only: see Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, 96 (stating that the waiver 'can be limited so that it applies only in relation to particular persons, materials or purposes'); Goldman v Hesper [1988] 3 All ER 97 (cited in Mann v Carnell [1999] HCA 66; (1988) 201 CLR 1 at [29] for the proposition that disclosure 'for a limited and specific purpose' will not lead to loss of the privilege)."[54]
(1986) 161 CLR 475
(2006) 155 FCR 30
(2006) 152 FCR 382
(2008) 246 ALR 137
(2005) 223 ALR 284
(2005) 145 FCR 70
(1997) 188 CLR 501
(2000) 199 CLR 135
(2002) 213 CLR 543
(1997) 140 FLR 468
(1993) 45 FCR 445
(1983) 50 ALR 551
(1983) 51 ALR 581
(1983) 50 ALR 567
(2004) 136 FCR 357
(1978) 140 CLR 1
(2001) 109 FCR 152
(1976) 136 CLR 1
(1979) 180 CLR 322
(1999) 201 CLR 1
(2005) 225 ALR 266
(1984) 1 FCR 150
(2006) 232 ALR 743
(1904) 2 CLR 186
(1984) 2 FCR 64
(2008) 234 CLR 275
(1984) 54 ALR 313
(1986) 162 CLR 24
(1997) 73 FCR 187
(1995) 185 CLR 83
(1988) 201 CLR 1
(2005) 65 IPR 442
(1978) 142 CLR 1
(1983) 78 FLR 236