Anangu Pitjantjatjara Yankunytjatjara v Ombudsman - [2019] SASC 162

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ANANGU PITJANTJATJARA YANKUNYTJATJARA v OMBUDSMAN & ANOR
[2019] SASC 162
Judgment of The Honourable Justice Hinton
13 September 2019
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS
ADMINISTRATIVE LAW - THE OMBUDSMAN - REVIEW OF OMBUDSMAN'S DECISIONS
Application for judicial review.
On 14 October 2016 the second defendant in these proceedings, Dr McFetridge, made seven applications under s 13 of the Freedom of Information Act 1991 (SA) (FOI Act) seeking access to a number of documents for the purpose of performing his duties as a Member of Parliament and a member of the Aboriginal Lands Parliamentary Standing Committee. The applications were made to the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara (APY), a body corporate established under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (APYLRA).
APY failed to process the seven applications within 30 days, with the consequence that there was a deemed refusal to grant access to the documents by operation of s 19(2) of the FOI Act. Dr McFetridge subsequently sought internal review of the deemed refusals. By letter dated 6 December 2016 APY advised that its Executive Board had refused to provide the documents sought on the ground that the FOI Act did not apply to APY as it was not an “agency” within the meaning of the Act.
Operating on the basis that the 6 December 2016 letter amounted to an internal review upholding APY’s refusal to grant him access to the documents sought, Dr McFetridge wrote to the Ombudsman seeking the external review of his applications under Pt 5 of the FOI Act. By seven decisions, each dated 25 July 2017, the Ombudsman substituted decisions granting access to the documents pursuant to s 39(11) of the FOI Act. The Ombudsman also found that APY had acted unreasonably within the meaning of s 39(16) by failing to cooperate in the process of review contrary to s 39(7) of the FOI Act.
APY commenced proceedings in this Court for judicial review of the Ombudsman’s decisions, seeking orders in the nature of certiorari quashing each of the determinations made by the Ombudsman upon conducting an external review in addition to a declaration that APY is not an “agency” within the meaning of the FOI Act. APY advanced three grounds as to why this Court should grant the relief sought:
1. APY is not an agency for the purposes of the FOI Act;
2. APY’s refusal to provide access to the documents under s 39(11) FOI Act was “erroneous, ultra vires, affected by jurisdictional error and made in excess of jurisdiction”; and
3. the Ombudsman’s finding that APY was being unreasonable in relation to each of the applications was “erroneous, ultra vires, and a decision made in excess of jurisdiction”.
In response to the grounds of review advanced by APY, the Ombudsman and Dr McFetridge submitted that APY was an agency within the meaning of s 4(1) FOI Act and that the Ombudsman had not erred in his decision-making process or in finding that APY had acted unreasonably.
Held, dismissing the application:
1. APY is an agency within the meaning of s 4(1)(f)(iii) of the FOI Act.
2. The Ombudsman’s determinations were not legally unreasonably and not infected by jurisdictional error.
3. The Ombudsman’s findings under s 39(16) of the FOI Act that APY had acted unreasonably in the external review process formed no part of the Ombudsman’s determinations and were not in this case amendable to certiorari.
Aboriginal Lands Parliamentary Standing Committee Act (SA) s 6; Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) ss 4, 4A, 5, 6, 8, 9, 9B, 9E, 10, 11, 12, 12B, 12C, 12D, 12F, 12G, 12H, 13, 13A, 13B, 13C, 13D, 13G, 13H, 13I, 13J, 13L, 13M, 13N, 13O, 14, 15, 17, 18, 19, 35, 37, 43; Constitution Act 1934 (SA) s 66; Freedom of Information Act 1991 (SA) ss 3, 4, 13, 14, 14A, 19, 25, 26, 27, 28, 29, 35, 39, 40, 48; Freedom of Information (Exempt Agency) Regulations 2008 (SA); Ombudsman Act 1972 (SA) s 39; Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA) s 13; Supreme Court Civil Rules 2006 (SA), referred to.
Egan v Willis (1998) 195 CLR 424; Horne v Barber (1920) 27 CLR 494; Media Research Group Pty Ltd v Department of Premier and Cabinet [2011] NSWADTAP 7; Re Cannon and Australian Quality Egg Farms Pty Ltd (1994) 1 QAR 491, considered.

ANANGU PITJANTJATJARA YANKUNYTJATJARA v OMBUDSMAN & ANOR
[2019] SASC 162
Judicial Review
HINTON J:
Introduction

This is an application for judicial review. The primary issue raised is whether Anangu Pitjantjatjara Yankunytjatjara (APY) is an agency within the meaning of the Freedom of Information Act 1991 (SA) (FOI Act). In my view APY is an agency. My reasons follow.
Background — Dr McFetridge seeks information
Until the March 2018 State election Dr McFetridge was the member for the seat of Morphett in the Parliament of South Australia. He was also a member of the Aboriginal Lands Parliamentary Standing Committee established under the Aboriginal Lands Parliamentary Standing Committee Act 2003 (SA) (the Standing Committee). The functions of the Standing Committee, as set out in s 6 of the Act, are:
(a)to review the operation of the Aboriginal Lands Trust Act 2013, the Maralinga Tjarutja Land Rights Act 1984 and the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981; and
(b)to inquire into matters affecting the interests of the traditional owners of the lands; and
(c)to inquire into the manner in which the lands are being managed, used and controlled; and
(d)to inquire into matters concerning the health, housing, education, economic development, employment or training of Aboriginal people, or any other matter concerning the welfare of Aboriginal people; and
(e) to consider any other matter referred to the Committee by the Minister; and
(f)to perform any other functions imposed on the Committee under this or any other Act or by resolution of both Houses of Parliament.
Below I deal in detail with the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (the APYLRA). For immediate purposes, it is to be observed that the APYLRA continued in existence the body corporate known as Anangu Pitjantjatjara Yankunytjatjara[1] (APY) and provided that APY have an Executive Board (the Executive Board) of up to 14 members[2] and a General Manager.[3] The functions of the General Manager include the implementation of resolutions of the Executive Board.
[1]    Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 5(1).
[2]    Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 9.
[3]    Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13D.
On 14 October 2016 Dr McFetridge made seven applications to the Executive Board under s 13 of the FOI Act seeking copies of the following information:[4]
i.Handwritten minutes of Executive Board meetings written into the minute book during meetings of the Board that took place in June, July, August, September and October 2016;
ii.All documents in relation to the procurement process relating to the retainer of lawyers Johnston Withers, John Stirk and Ruth Morley;
iii.All documents showing distribution and/or comment on emails between the APY Deputy Chair and Richard King and/or Tania King for 18 months prior to the date of this request;
iv.Bank statements showing income and expenditure of money from grazing cattle on the Anangu Pitjantjatjara Yankunytjatjara lands for the period 18 months prior to the date of this request;
v.Funding agreements concerning cattle grazing on the APY lands and bank statements showing receipt and dealings with expenditure of such funding for the period of 18 months prior to this request;
vi.Documents showing the recruitment process for the cattle/pastoral manager currently employed/retained as at the date of the request, including any employment/consulting contract and/or any invoices and payments for consulting work prior to the current appointment including any report in relation to that consulting work; and
vii.Costs agreements and invoices issued by John Stirk and Ruth Morley in the period of 18 months prior to the date of this application.
[4] Affidavit of Dr Duncan McFetridge, sworn 22 November 2017, exhibit DMcF-1.
In the affidavit he filed in these proceedings, Dr McFetridge said that he made the applications set out above for the purpose of the performance of his duties as a Member of Parliament and a member of the Standing Committee.[5]
[5] Affidavit of Dr Duncan McFetridge, sworn 22 November 2017, at [5].
By letter dated 21 October 2016, Mr Richard King, the General Manager of APY, acknowledged the receipt of Dr McFetridge’s seven applications on 20 October 2016 which arrived via the mail plane to Umuwa.
Under s 14(2) of the FOI Act an application made in accordance with s 13 must be dealt with as soon as practicable and, in any case, within 30 days after it is received. That did not occur in the present case. Further, no extension of time within which to determine any of the requests was made under s 14A of the FOI Act. Under s 19(2)(b) FOI Act an application made under s 13 that is not determined within 30 days and is not the subject of any extension of time is taken to have been determined by the agency refusing access to the document to which the application relates for the purposes of Pt 3 Div 3 of the FOI Act and Pt 5.
By letter dated 29 November 2016 addressed to “The Principal FOI Officer” of the Executive Board, Dr McFetridge made an application for the internal review of each of the deemed refusals of access to the documents specified in his seven applications.[6]
[6] Affidavit of Dr Duncan McFetridge, sworn 22 November 2017, at [10].
Under cover of a letter dated 6 December 2016 addressed to Dr McFetridge and signed by Mr King in his capacity as General Manager of APY, and by Mr Rex Tjami in his capacity as the APY Director of Administration, APY advised:
… the FOI Act can only apply to the APY if the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (APY Land Rights Act) is considered to be an act made for a “public purpose”. It was not. The APY Land Rights Act was made for the sole purpose of advancing the APY, not for the benefit or purposes of the public generally.
This position was unanimously confirmed by the High Court in 1985 in Gerhardy v Brown, which specifically examined the purpose of the APY Land Rights Act. Chief Justice Gibbs said that while “… the Act obviously adopts a number of measures to achieve its purpose, [it] nevertheless has the sole purpose of securing the advancement of the [APY].”
While it is possible to characterise individual provisions of the APY Land Rights Act as providing some benefit to the public, this is different from the Act evincing a public purpose. As per Justice Brennan in Gerhardy, “it is artificial to regard [individual sections] as having a purpose or operation divorced from their use and management of the lands.” Justice Brennan went on to say:
“The purpose of the Land Rights Act can be collected from its terms, from the Report of the Pitjantjatjara Land Rights Working Party and from the speeches of the Ministers in charge of the Bill for the Act in the respective Chambers of the Parliament of South Australia. From those sources, its purpose appears to be the restoration to the Pitjantjatjaras of the use and management of the lands free from disturbance by others [our emphasis] so that they may foster the traditional affiliations that Pitjantjatjaras have with the lands and discharge the traditional responsibilities to which they are subject in respect of the lands.”
Gerhardy unanimously held that the APY Act is a special measure consistent with Article 1(4) of the International Convention on the Elimination of all Forms of Racial Discrimination taken for the sole purpose of securing the advancement of the APY.
The APY Land Rights Act does not in any sense establish the APY as an agency of the Crown. The High Court confirmed that it is instead intended to provide the legal means by which Anangu may rebuild their relationship with country in accordance with tradition. In accordance with this reasoning, we consider that the FOI Act has no application to the APY.
The letter closed advising Dr McFetridge that his applications were tabled at a meeting of the Executive Board which, on 6 December 2016, passed a resolution to “respectfully decline to provide any of the information sought”.
Operating on the basis that Mr King and Mr Tjami’s letter of 6 December 2016 amounted to a decision upholding the refusal to grant him access to the documents subject of his seven applications, Dr McFetridge wrote to the Ombudsman seeking the external review of his applications under Pt 5 of the FOI Act.[7]
[7] Affidavit of Dr Duncan McFetridge, sworn 22 November 2017, at [12].
On 16 December 2016 Mr King wrote to Dr McFetridge a third time. Mr King’s letter was written in response to Dr McFetridge’s letter of 29 November 2016. Dr McFetridge’s letter, Mr King explained, was not received in Umuwa until 15 December 2016. This being so, the letter was not considered at the Executive Board meeting held on 6 December 2016. Rather the Executive Board had considered its response to Dr McFetridge’s seven applications for the first time on 6 December 2016. Mr King advised that there had been occasions when it took up to six weeks for mail to be received and, on the chance that his and Mr Tjami’s letter of 6 December 2016 had not been received, he enclosed a further copy.
In his affidavit Dr McFetridge states that he received no notification from APY regarding the outcome of any internal review decision. He took this silence as indicative of the initial decision having been confirmed.[8]
[8] Affidavit of Dr Duncan McFetridge, sworn 22 November 2017, at [14].
On 5 June 2017, Ms Helen Lines, a Senior Legal Officer in the Ombudsman’s Office, sent Dr McFetridge seven letters, one for each of the seven freedom of information applications he had made. Ms Lines’ letters contained the Ombudsman’s provisional determinations after conducting an external review of each of Dr McFetridge’s applications with accompanying reasons.
In relation to each of Dr McFetridge’s applications the Ombudsman’s provisional determination was that APY was an agency within the meaning of s 4(1) of the FOI Act with the consequence that that Act applied to APY and the Executive Board’s determinations could not stand. In relation to each of the seven applications the Ombudsman’s provisional determination concluded by expressly stating that the relevant determination be reversed. The purpose of sending Dr McFetridge the provisional determinations was to allow him an opportunity to make any submission he wished which would be taken into account in finalising the determinations.
Under cover of seven letters dated 25 July 2017, Ms Lines forwarded to Dr McFetridge the Ombudsman’s determinations and reasons in relation to the external review of the seven freedom of information applications that Dr McFetridge had made. In relation to each of the seven applications the Ombudsman reversed the determination made by APY.
Under s 40 of the FOI Act, APY had the right to apply to the South Australian Civil and Administrative Tribunal (SACAT) for permission for the review of the Ombudsman’s determinations on any question of law, such review to be instituted within 30 days after notice of the determination was given to APY. APY did not institute proceedings in the SACAT.
On 23 October 2017 Dr McFetridge wrote to the Executive Board enclosing copies of the Ombudsman’s determinations and stating that, no proceedings having been instituted in the SACAT and the time for compliance having passed, he intended to complain to the Ombudsman and take steps to enforce the determinations.
At the time of writing his 23 October 2017 letter Dr McFetridge was unaware that APY had instituted these proceedings.
The Ombudsman’s conduct of the external review
As part of his case the Ombudsman tendered an affidavit affirmed on 28 November 2017 by Ms Helen Lines. As a Senior Legal Officer in the Ombudsman’s office, Ms Lines had the care and conduct of the seven files that the Ombudsman opened in consequence of receiving Dr McFetridge’s request for the external review of the seven freedom of information applications he had made to the APY Executive Board. To her affidavit Ms Lines annexed copies of the relevant documents contained on each file that the Ombudsman had opened. Each file and related application was given a unique sequential reference number, 2017/00111 to 2017/00117 inclusive.
The Ombudsman first wrote to the APY General Manager on 13 January 2017 advising him that the Ombudsman had received Dr McFetridge’s applications and of the history of the applications as relayed to him by Dr McFetridge. The Ombudsman referred to the letter written jointly by Mr King and Mr Tjami dated 6 December 2016 and advised that he disagreed with the view that APY was not an agency within the meaning of the FOI Act. The Ombudsman then set out his reasons. In short, the Ombudsman was of the opinion that APY was a body incorporated for a public purpose within the meaning of s 4(1) of the FOI Act. Accepting this, the Ombudsman advised that APY was required to determine Dr McFetridge’s applications. The Ombudsman closed his 13 January 2017 letter asking that APY advise him of its position by 27 January 2017.
Mr King contacted Ms Lines on 10 February 2017. He had been on leave since 23 December 2016 and had only just received the Ombudsman’s 13 January 2017 letter. He indicated that he intended to obtain legal advice and would respond by 24 February 2017.
On 28 February 2017 Mr King emailed the Ombudsman after being prompted by Ms Lines. Attached to Mr King’s email was a letter in which it was stated:
By way of formal response to your letter dated 13 January 2017, the APY advises as follows.
Your letter advises that you have received seven (7) applications for external review from Mr McFetridge.
The APY does not accept that this is correct.
The position of the APY is that Mr McFetridge has initiated one application for documents, not 7 separate applications.
The fact that Mr McFetridge of his own initiative has broken up his request upon 7 separate application forms (all dated the same date) is immaterial. The separate applications forms are a transparent tactic to attempt to evade the payment of the fees and charges prescribed in the Freedom of Information (Fees and Charges) Regulations.
For the purposes of the FOI Act, the APY has determined this is so.
The APY is not an agency to which the Freedom of Information Act applies.
For the purpose of the FOI Act, the APY has determined this is so.
The purpose of this formal correspondence is to make the position of the APY in respect to your Section 39 Review absolutely clear.
The APY accepts the jurisdiction of your office pursuant to Section 39(11) of the FOI Act, and accepts that you may confirm, vary or reverse the determinations of the APY in this matter.
Mr King closed his letter requesting that the Ombudsman make his decision as soon as reasonably practicable.
On 3 April 2017 the Ombudsman wrote to APY. He pointed out that in relation to previous freedom of information applications APY had accepted that it was subject to the FOI Act. The Ombudsman also made the observation that APY’s acceptance that the Ombudsman had jurisdiction to determine the matter under s 39 of the Act was inconsistent with the contention that APY was not an agency to which the FOI Act applied. The Ombudsman urged APY to reconsider its position. He then referred APY to s 39(5) of the Act, which empowered him to carry out an investigation into the subject matter of an application utilising, if necessary, the same powers as would be available to a Royal Commission, and threatened to consider using the power to compel the attendance of witnesses and to produce documents, should APY maintain its position. The Ombudsman closed his letter inviting APY to respond by 24 April 2017, failing which he would assume that APY had decided to maintain its position and would proceed to consider the options available to him.

On 12 May 2017 the Ombudsman wrote again to APY. In relation to each of the seven applications made by Dr McFetridge he requested that APY provide him with:
·copies of the applications for access and internal review;
·copies of APY’s initial and internal review determinations;
·copies of all of the documents within the scope of the application for access;
·copies of any further correspondence or file notes recording communication between APY and the applicant in relation to the application;
·copies of any internal communications, or communications between the agency and any other party that were relevant to the application; and
·any submissions in support of APY’s determination, in view of APY’s obligations under s 48 of the FOI Act.
The Ombudsman’s 12 May 2017 letter was sent electronically. In the accompanying email Ms Lines advised APY that if the requested documentation was not provided by 2 June 2017, the Ombudsman would proceed to review the determinations externally. That same day Mr King responded by email saying, “Please do”.
APY responded more fulsomely in a letter from its solicitor, Ms Morley, dated 18 May 2017. In response to the Ombudsman’s letter of 3 April 2017, Ms Morley pointed out that APY’s previous response to other FOI applications was irrelevant, stated that APY’s acknowledgement of the Ombudsman’s power under s 39 FOI Act did not amount to any implied acceptance of jurisdiction and maintained that APY was not an agency within the meaning of the FOI Act. Ms Morley observed that if APY were right and it was not an agency, any action taken by the Ombudsman under s 39 FOI Act, including deploying the powers of a Royal Commission, would be in excess of the power conferred by that Act.
Turning to the Ombudsman’s 12 May 2017 letter, Ms Morley advised that APY instructed that it would not comply with the Ombudsman’s requests. The reason was that APY maintained that it was not an agency with the consequence that the Ombudsman had no power to undertake an external review.
Ms Morley concluded her letter inviting the Ombudsman to reconsider his position including enquiring of Dr McFetridge whether he wished to pursue his applications.
Under cover of a letter dated 5 June 2017, the Ombudsman forwarded a copy of his provisional determinations on each application to APY and invited APY to make any submission in relation to the content by close of business on 19 June 2017. The Ombudsman advised that in the event that he did not receive a submission by that time, he would assume that APY had elected to make no comment.
By email dated 16 June 2017, Ms Morley responded. APY maintained its position that it was not an agency. I observe that APY did not make any claim to the effect that if the Ombudsman concluded that it was an agency, any of the documents to which access was sought were exempt.
On 25 July 2017 the Ombudsman completed his external review of the applications and determined that the agency’s determinations in relation to all seven applications be reversed.
In relation to the applications subject of Ombudsman files 2017/00111, 2017/00113, 2017/00114, 2017/00115 and 2017/00116 being applications (i), (iii), (iv) (v) and (vi), respectively, listed above,[9] the Ombudsman in his determinations and reasons for each set out the procedural history of the external reviews before turning to the question of the application of the FOI Act to APY. He said:
[9] At [4].
In my view the APY is an incorporated body established for a public purpose by the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 and is therefore an agency to which the FOI Act applies.
On 12 May 2017, my Senior Legal Officer wrote to Mr King and Mr Frank Young, Chairperson of the Anangu Pitjantjatjara Yankunytjatjara Executive Board formally requesting that they provide me with documents falling within the scope of the application in order that I could conduct the external review. The agency did not provide me with the requested documents. Further, when my Senior Legal Officer advised Mr King that, if the agency did not provide the material requested by 2 June 2017, I would proceed to external review, Mr King responded by writing, ‘Please do’.
As the agency has failed to justify its deemed refusal to give access to the documents that are the subject of the application, other than to put forward the erroneous position that it is not an agency to which the FOI Act applies, the deemed determination cannot stand.
Comment
Section 39 of the FOI Act deals with external reviews by the Ombudsman. Subsection (7) provides:
The agency and the applicant must cooperate in the process proposed by the relevant review authority for the purposes of the conduct of a review under this section … and must do all such things as are reasonably required to expedite the process.
[footnote omitted]
The Ombudsman added that in his opinion APY had failed to cooperate in the process of review contrary to s 39(7) and that its conduct had been unreasonable for the purposes of s 39(16) of the FOI Act.
The Ombudsman reversed APY’s determinations on all five applications.
In relation to Dr McFetridge’s freedom of information request subject of file number 2017/00112, being the request for access to “[a]ll documents in relation to procurement processes relating to the retainer of lawyers Johnson Withers (sic), John Stirk and Ruth Morley”, the Ombudsman received additional material. On 15 June 2017 Ms Morley wrote to the Ombudsman. Ms Morley’s letter was written in response to two letters that the Ombudsman sent to her, both dated 6 June 2017, one in relation to application 2017/00112 and the other in relation to application 2017/00117. The Ombudsman’s letters make plain that he was extending to Ms Morley the opportunity to make submissions in relation to applications 2017/00112 and 2017/00117 in a personal capacity as an interested person within the meaning of the FOI Act and not as APY’s solicitor.
I assume similar letters were sent to Johnston Withers.
Ms Morley’s response indicates that she appreciated the Ombudsman was seeking her view as to applications 2017/00112 and 2017/00117. It was not contended that Ms Morley replied other than in her personal capacity.
In her response Ms Morley advised that she had retained Mr Stirk as special counsel and that, consequently, he provided no invoices to APY. Ms Morley said that any costs agreement she had with APY was subject of legal professional privilege and that, in any event, Ms Morley and Mr Stirk refused to provide the information on the basis that the request was vexatious and unreasonably interfered with her “operations and it is part of a pattern of conduct that amounts to an abuse of access”. She added that the rates she and Mr Stirk charged APY were lower than their general commercial rates for legal services. She contended that such rates were sensitive business information which, if made public, would adversely affect her professional and business affairs, in particular her ability to contract with other clients and future clients on a commercial basis, and her ability to retain others to act for APY. This, she contended, made the documents exempt under Sch 1 cl 7(1)(c) FOI Act.
Ms Morley also contended that Sch 1 cl 9(1)(a)(ii) FOI Act was engaged as the documents subject of this particular application contained matter relating to “consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of APY; and the disclosure of which would, on balance, be contrary to the public interest”.
The Ombudsman also received a submission from Johnston Withers Lawyers on file 2017/00112. That submission is not in evidence.
In his 25 July 2017 determination and reasons on application 2017/00112 the Ombudsman set out the procedural history of the application before turning to deal with the submissions made by Ms Morley and Johnston Withers.
From the Ombudsman’s determination it appears that Johnston Withers submitted that any documents that fell within the scope of Dr McFetridge’s application were exempt on the grounds that, first, the documents were subject to legal professional privilege,[10] and, second, the documents were exempt under Sch 1 cll 7(1)(b) and 7(1)(c) of the FOI Act as they concerned the business affairs of Johnston Withers and APY. In elaborating on these contentions Johnston Withers submitted that the documents requested were of commercial value as they would likely concern the terms of their engagement with APY. Thus disclosure of that information could reasonably be expected to destroy or diminish that information, as well as Johnston Withers’ ability to quote for further work in competition with other legal firms. Johnston Withers further submitted that Sch 1 cl 9(1) of the FOI Act was also invoked as the documents were internal working documents that related to “opinion, advice or recommendation” and “any consultation or deliberation” in the course of or for the purpose of the decision-making functions of APY.
[10] Freedom of Information Act 1991 (SA), Sch 1 cl 10.
The Ombudsman found that the documents were not exempt under any of the clauses in Sch 1. Turning first to Sch 1 cl 7, after noting that the FOI Act does not define the term “commercial value”, the Ombudsman referred to authorities that dealt with the meaning of that term in other contexts and considered that one possible interpretation was that information has commercial value when it is “valuable for the purposes of carrying on the commercial activity in which that agency or other person is engaged. The information may be valuable because it is important or essential to the profitability or viability of a continuing business operation, or a pending, “one-off” commercial transaction”. The Ombudsman was not of the view that any documents that might be held by APY would contain information of commercial value to APY or the interested parties and thus concluded that Sch 1 cl 7(1)(b) did not apply.
Further, the Ombudsman considered that Sch 1 cl 7(1)(c) was not engaged. While he was satisfied that any documents that might be held by APY would relate to Johnston Withers’ and Ms Morley’s business affairs, the disclosure of any retainer agreements held by APY, could not reasonably be expected to have an adverse effect on those affairs. He elaborated:
In reaching this conclusion I have taken account of the fact that the agency is aware of the fees being charged by JWL; it is already in a position where it could compare those fees to any fees quoted by a rival legal firm. I have also taken into account that any retainer would relate to the provision of legal services to a unique client - an organisation responsible for managing a vast tract of land for the benefit of the Anangu, a particular group of Aboriginal Australians. It seems unlikely to me that any rival legal firm would be asked to provide comparable legal services and thereby be placed in a position where it would be able to take commercial advantage of the fees charged by JWL by undercutting them.
Ms Morley has advised that the fees she charges the APY are more favourable to that particular client than fees she charges other clients for commercial services. In those circumstances I consider that the chance of her being undercut by rival practitioners is remote. While Ms Morley claims that disclosure of any retainers held by the agency would negatively affect her ability to contract with other clients, I refer again to the uniqueness of the agency as a client. I think it unlikely that Ms Morley would be asked to provide legal services to another like client.
[footnote omitted]
As for Sch 1 cll 9(1)(a) and 9(1)(b), the Ombudsman agreed that any documents held by APY might relate to the seeking of an opinion, advice or recommendation. However, because any retainer agreements that APY held would not reveal the actual detail of any advice or deliberation, he was not satisfied that such documents would have been created in the course of, or for the purpose of, APY’s decision-making functions. Nor would their disclosure, on balance, be contrary to the public interest.
Lastly, the Ombudsman considered that the exemption for privileged documents contained in Sch 1 cl 10 was not engaged. While he accepted Ms Morley’s submission that any costs agreements held by APY to which she was a party might contain information relating to the advice sought by APY, the Ombudsman doubted that those agreements conveyed legal advice about tactics or strategy, particularly given that the costs agreements would have been entered into before the provision of such advice. The Ombudsman also observed that Johnston Withers did not submit that any documents that fell within the scope of Dr McFetridge’s application were privileged.
As with the other applications, the Ombudsman determined that APY had failed to cooperate in the process as required by s 39(7) of the FOI Act and that its conduct was unreasonable. The Ombudsman reversed APY’s determination on application 2017/00112.
In relation to Dr McFetridge’s application subject of Ombudsman file 2017/00117, being the request for “[c]osts agreements and invoices issued by John Stirk and Ruth Morley in the period of 18 months prior to the date of this application”, the Ombudsman, after referring to the procedural history in relation to the external reviews, determined that the documents requested were not exempt under Sch 1 cll 7(1)(b) and (c), 9(1)(a) and 10(1) for reasons that were largely the same as those he provided in relation to the request subject of file 2017/00112. However, in concluding that the documents were not exempt under Sch 1 cl 7(1)(c) the Ombudsman added that he was not persuaded by Ms Morley’s submissions that disclosure of any costs agreement or invoice could reasonably be expected to impede her ability to quote for other work in competition with rival legal firms as she was still at liberty to negotiate costs agreements with clients and take into account the individual circumstances pertaining to the particular matter. As for cl 9(1)(a) of Sch 1 the Ombudsman also considered that whilst the costs agreements might have been a record of a deliberation or decision, they would not have been prepared for the purpose of facilitating such deliberation or decision-making, and thus could not be related to APY’s decision-making functions such as to invoke cl 9(1)(a).
As with all other applications, the Ombudsman concluded that APY had failed to cooperate in the process as required by s 39(7) of the FOI Act and had acted unreasonably. The Ombudsman reversed APY’s determination.
The application
On 13 October 2017 APY instituted these proceedings. The primary relief sought is orders in the nature of certiorari quashing each of the determinations made by the Ombudsman upon conducting an external review in addition to a declaration that APY is not an agency within the meaning of the FOI Act. APY’s Third Statement of Grounds advances three reasons why the relief sought should be granted.
First, APY maintains that it is not an agency for the purposes of the FOI Act.
Secondly, APY contends that even if it is an agency, the Ombudsman’s determinations to reverse APY’s refusal to provide access to the documents were “erroneous, ultra vires, affected by jurisdictional error, and made in excess of jurisdiction”. In this regard APY elaborated:
3.8.8.1In respect to the Determinations and the Ombudsman’s finding that the Plaintiff acted unreasonably, the Ombudsman failed to provide reasons or adequate reasons for the Determinations, contrary to the mandatory statutory requirement for the provision of reasons prescribed in Section 38(13) of the FOI Act;
…
3.8.8.3The Ombudsman failed to comply with a mandatory statutory provision, namely Section 39(5) of the FOI Act, in that the Ombudsman failed to conduct a review and failed to carry out investigations into the subject matter of the Application;
…
3.8.8.5The Determinations were made on the basis of “no evidence”, as the Ombudsman did not review or consider at all the documents the subject of the Application;
3.8.8.6In determining that the documents the subject of the Application were not exempt documents under the FOI Act and that they should be released to the Second Defendant, the Ombudsman failed to take into account relevant considerations, namely the contents of the documents the subject of the Application;
…
3.8.8.7The Determinations were legally unreasonable in that the decisions to “reverse” the deemed refusals of the Plaintiff such as to require production of the documents to the Second Defendant without having undertaken any assessment as to whether the documents the subject of the Application were exempt documents for the purposes of the FOI Act lacked an evident and intelligible basis, and/or were manifestly unreasonable.
Further, in relation to the determinations the Ombudsman made with respect to files 2017/00111, 2017/00113, 2017/00114, 2017/00115 and 2017/00116, APY contended that the Ombudsman had failed to undertake any assessment as to whether the documents subject of the applications were exempt documents for the purposes of the FOI Act. This, in turn, meant that he had failed to take into account relevant factors in making the determinations.
Further again, APY submitted that the Ombudsman’s determinations with respect to files 2017/00112 and 2017/00117 were invalid because the Ombudsman had erred in law by, among other things, failing to address the correct question or apply the correct statutory test.
APY’s third ground of review was that even if APY were an agency, and even if the Ombudsman’s determinations under s 39(11) were correct, the Ombudsman’s findings that APY was being unreasonable in relation to each of the seven applications, was “erroneous, ultra vires, and a decision made in excess of jurisdiction”. APY stated that the Ombudsman had failed to take into account relevant considerations, namely the content of APY’s letter of 18 May 2017,[11] and the fact that APY’s reason for not complying with the Ombudsman’s request was on the basis of legal advice. Further, APY contended that the Ombudsman’s decisions were made without affording APY procedural fairness as APY was not provided with the opportunity to make any submission on the issue of whether its conduct contravened s 39(16) of the FOI Act. Indeed, the Ombudsman’s decisions were made without any notice being provided to APY. Further again, APY contended that the Ombudsman’s decisions were unreasonable “for lack of an evident and intelligible basis, and/or were manifestly unreasonable” in that non-compliance on the part of an agency with a request made by the Ombudsman under s 39(7) of the FOI Act does not of itself amount to “unreasonable” conduct for the purposes of s 39(16) of the Act.
[11] At [29]-[31].
In an affidavit filed in support of the application, Ms Ruth Morley, the solicitor for APY, confirmed that APY received each of Dr McFetridge’s freedom of information applications but declined to provide the information requested in the applications on the grounds that it was not an agency within the meaning of the FOI Act. Ms Morley further stated that because APY did not consider that it was subject to the FOI Act, it made no determination of the applications under s 19 of the Act. APY adopted the same approach in relation to Dr McFetridge’s request for the internal review of each of his applications. That is, it declined to deal with the request and thus made no determination for the purposes of s 38 of the Act.
In reply to communication from the Ombudsman in relation to his external review of the applications, Ms Morley, on instructions from APY, advised the Ombudsman of APY’s belief that it was not an agency within the meaning of the Act and accordingly that no power to conduct the external review of Dr McFetridge’s applications existed. She further stated that APY was not served with a summons to produce documents by the Ombudsman in respect of his external review of the applications and APY, accordingly, did not provide to the Ombudsman any documents within the scope of the external review. Whilst Ms Morley was aware that the Ombudsman had made findings in this matter under s 39(16) of the FOI Act in relation to APY’s conduct being “unreasonable”, she was instructed by APY that it disputed any action it had taken with respect to this matter, including that its dealings with the Ombudsman were “unreasonable” within the context of s 39(16) of the FOI Act.
The APYLRA

In 1973 the Federal Government established the Aboriginal Land Rights Commission (the Commission) to inquire into and report on the appropriate means to recognise and establish the traditional rights and interests of the Aboriginal people in relation to land and to satisfy in other ways the reasonable aspirations of the Aboriginal people to rights in or in relation to land.[12] This is not the place to analyse the findings of the Commission.
[12] Aboriginal Land Rights Commission, First Report July 1973 (Australian Government Publishing Service: Canberra, 1973); Aboriginal Land Rights Commission, Second Report April 1974 (Government Printer of Australia: Canberra, 1974).
In this State in 1977 the Pitjantjatjara Land Rights Working Party (the Working Party) was established. The Working Party’s primary term of reference was:[13]
to examine the feasibility of establishing by legislation a separate Pitjantjatjara lands trust to cover the North West Reserve, Everard Park, Indulkana, Ernabella, Fregon, provided that the inalienability of the land is firmly established and that arrangements proposed do not contravene the wishes of any of the Pitjantjatjara communities.
[13] Pitjantjatjara Land Rights Working Party, Report of the Pitjantjatjara Land Rights Working Party of South Australia (1978).
It is important to understanding the work of the Commission and the Working Party, and ultimately the APYLRA, that in each instance what was contemplated was that different groups of Aboriginal people would acquire some form of land holding in their traditional lands or portions of their traditional lands. In that connection each of the Commission, the Working Party and the APYLRA had to grapple with the form of title to be invested and in whom such title was to be invested within the given legal framework. The Commission, the Working Party and the APYLRA were not concerned with the legal status of native title. That was something that the law in this country was yet to grapple with. Rather the contemplated grant was one to be made directly from the Crown, or one that could ultimately be traced to the Crown, and the body to whom the grant of title was made or transferred had to be a legal entity known to the law and capable of holding property. Hence, in his first report Commissioner Woodward said:[14]
It is obvious that, whatever form the recognition of Aboriginal land rights may take, there must be provision for title to be vested in groups or communities of Aborigines. And, when it comes to using the land, there must be provision for the operation of Aboriginal businesses.
Since unincorporated associations, co-operatives and trustee arrangements all have clear defects in the Aboriginal situation there is an obvious need for provisions for incorporation. Further, laws relating incorporation to under the Companies Acts are inappropriate for most Aboriginal purposes.
I have no doubt that what is required is a special system of incorporation of Aboriginal groups. …
[14] Aboriginal Land Rights Commission, First Report July 1973 (Australian Government Publishing Service: Canberra, 1973) at p 27. See also, Aboriginal Land Rights Commission, Second Report April 1974 (Government Printer of Australia: Canberra, 1974) at p 65.
Complexity in the task was introduced by the desire to account for the profound difference in the Aboriginal people’s approach to the question of tenure. In his Boyer Lectures, Professor W E H Stanner explained:[15]
No English words are good enough to give a sense of the links between an Aboriginal group and its homeland. Our word ‘home’, warm and suggestive though it be, does not match the Aboriginal word that may mean ‘camp’, ‘hearth’, ‘country’, ‘everlasting home’, ‘totem place’, ‘life source’, ‘spirit centre’ and much else all in one. Our word ‘land’ is too spare and meagre. We can now scarcely use it except with economic overtones unless we happen to be poets. The Aboriginal would speak of ‘earth’ and used the word in a richly symbolic way to mean his ‘shoulder’ or his ‘side’. I have seen an Aboriginal embrace the earth he walked on. To put our words ‘home’ and ‘land’ together into ‘homeland’ is a little better but not much. A different tradition leaves us tongueless and earless towards this other world of meaning and significance. When we took what we call ‘land’ we took what to them meant hearth, home, the source and locus of life, and everlastingness of spirit. At the same time it left each local band bereft of an essential constant that made their plan and code of living intelligible. Particular pieces of territory, each a homeland, formed part of a set of constants without which no affiliation of any person to any other person, no link in the whole network of relationships, no part of the complex structure of social groups any longer had all its co-ordinates. What I describe as ‘homelessness’, then, means that the Aborigines faced a kind of vertigo in living. They had no stable base of life; every personal affiliation was lamed; every group structure was put out of kilter; no social network had a point of fixture left.
[15] W E H Stanner, White Man Got No Dreaming: Essays 1938-1973 (Australian National University Press: Canberra, 1979) at p 230.
The Working Party said:[16]
We were concerned to avoid what we considered the pitfall of vesting title in any particular group – for example, clan, community, linguistic entity, councils, traditional or pseudo traditional classes of people. Such vesting could pre-suppose organisational principles which may not be paramount and which may fail to reflect modes of Pitjantjatjara decision-making and tenure not understood by us.
The Working Party in fact elucidated eight possible models of custodianship and aired them extensively but it was the Pitjantjatjaras themselves who rejected the vesting of custodianship in anything but the totality of all Pitjantjatjara people. They saw the vesting of title in a group of trustees such as the old men, council or community representatives, heads of totemic patriclans, or a single figure head as granting to such particular people prerogatives in the land which the culture could not recognise.
In the light of these discussions, we have recommended that title to the lands be vested in a body corporate to be known as Anangu Pitjantjatjara – the Pitjantjatjara Peoples (see page 82: see also p. 38)
Membership will comprise all Pitjantjatjaras having an interest (which term includes, by definition, social, economic, and spiritual affiliations and responsibilities required by Aboriginal tradition) in and towards the lands even though some such people may regard themselves primarily as belonging to an associated group – for example the Yangkutjatjara.
It is expected that the effect of the legislation will be to ensure that all those groups of people who regard themselves by operation of Aboriginal tradition as members will have the opportunity of full and proper fulfilment of their traditional and spiritual attachments to the land.
[16] Pitjantjatjara Land Rights Working Party, Report of the Pitjantjatjara Land Rights Working Party of South Australia (1978) at pp 63-64.
Further:[17]
Fundamental to our deliberations were the views expressed by the Pitjantjatjara who overwhelmingly supported a new land holding entity. These views followed those expressed to the Premier at a meeting at Amata on 4^th May 1977 where it was said:
The Pitjantjatjara Council have talked about land rights and also lease and the freehold. The Council said at each meeting “the land is ours and we, as Aboriginal people should ask for special freehold so that the land cannot be sold”. Also at the meeting they said a lot about Aboriginal Lands Trust and Pitjantjatjara Lands Trust. The Council make important point that that Aboriginal people down Adelaide who are holding the Aboriginal Lands Trust are not men in our Aboriginal Law … so we Pitjantjatjara people want freehold and to have a special Pitjantjatjara Lands Trust right here at Amata held by the Pitjantjatjara Council and also helped by our Solicitors.
Therefore, the recommendation establishing a new entity follows from the clear wish of the Pitjantjatjara, and this wish reflects the living links the Pitjantjatjara have with their land. The Working Party supports the principle followed by Mr. Justice Woodward that such links should be preserved and strengthened. Moreover, the very size of the land; its relevance in supporting a scattered but culturally homogenous group; its remoteness and separation from southern interests, aspirations, and cultures all added credence to the notion of creating a new entity.
[footnote omitted]
[17] Pitjantjatjara Land Rights Working Party, Report of the Pitjantjatjara Land Rights Working Party of South Australia (1978) at pp 66-67.
Consistent with the recommendations of the Working Party, the APYLRA as originally enacted created a body corporate to be known as “Anangu Pitjantjatjaraku”.[18] Subsequently, the name of the body corporate was changed to “Anangu Pitjantjatjara” and then “Anangu Pitjantjatjara Yankunytjatjara”.[19] Importantly, all Anangu and only Anangu are members of APY.[20]
[18] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 5(1).
[19] See Pitjantjatjara Land Rights Act Amendment Act 1987 (SA), s 3; Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA), s 7(1).
[20] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 5(2).
Essentially the entity created was a legal construct of convenience connecting two cultures. It was not an entity known to the traditional law and customs of the Pitjantjatjara, the Yankunytjatjara or the Ngaanyatjarra. It was not an entity intended to replace the structures of the traditional laws and customs of the Anangu.[21] It was facultative of those traditional laws and customs. Thus whilst the objects of the APYLRA are stated as being to provide for and subsequently acknowledge Anangu ownership of the lands, to establish APY as a body corporate, to set out the powers and functions of APY, and to provide for the efficient and accountable administration and management of the lands vested in the corporate body,[22] the functions of APY were linked to the wishes, opinions and aspirations of the Anangu. In this regard s 6(1) prescribes:
The functions of Anangu Pitjantjatjara Yankunytjatjarra are as follows:
(a)to ascertain the wishes and opinions of traditional owners in relation to the management, use and control of the lands and to seek, where practicable, to give effect to those wishes and opinions; and
(b)to protect the interests of traditional owners in relation to the management use and control of the lands; and
(c)to negotiate with persons desiring to use, occupy or gain access to any part of the lands; and
(d)to administer land vested in Anangu Pitjantjatjara Yankunytjatjara.
[21] Anangu means a person who is a member of the Pitjantjatjara, or Yankunytjatjara or Ngaanyatjarra people, and a traditional owner of the lands or part of them: Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 4(1).
[22] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 4A.
On 30 October 1981 the Governor issued a land grant in fee simple to APY in relation to an area of approximately 102,630 km² in the North West of this State pursuant to the power conferred by s 15(1) of the APYLRA. Subject to the APYLRA, no estate or interest in the lands can be alienated from APY and the lands vested cannot be compulsorily acquired, resumed or forfeited under any law of the State.[23]
[23] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 17.
Despite its facultative function, the model recommended and enacted was intended to:[24]
… place the Pitjantjatjara within the legal framework of the State; and although this will necessarily result in some strictures it will guarantee the rights, protections, and redresses the people would not otherwise have. They will thus gain legal parity with the rest of the community and at the same time enjoy full access to their own culture.
[24] Pitjantjatjara Land Rights Working Party, Report of the Pitjantjatjara Land Rights Working Party of South Australia (1978) at p 68.
Such step was considered necessary because, whilst all Anangu are members of APY[25] and have unrestricted rights of access to the lands,[26] without the imposition of legal strictures the beneficial ownership as was conferred would not carry any enforceable right. The Working Party explained:[27]
Having made recommendations which seek to confer upon all Pitjantjatjaras ownership of their land, and by operation of the law, all the rights, duties and obligations which go with ownership, it needs to emphasising that the actual owner of the land, the incorporated body called Pitjantjatjara Peoples, is a separate legal entity from the people for whom the land is owned. At law it is common for a trustee to be appointed in a situation in which a large group of people or people with limitations at law, own land. The trustee owns the land for the beneficiaries who have rights at law, and the trustee has duties to them.
However, in our proposals there is no such relationship. The beneficial owners of the land, the extant Pitjantjatjaras, in the absence of specific provision, have no enforceable rights as owners of the Lands. Those rights are exercisable at law by the legal body, the Pitjantjatjara Peoples, and by none other. We have found it essential, therefore, to include provisions which ensure that individuals or groups of Pitjantjatjaras have some recourse against decisions of the Pitjantjatjara Peoples which are contrary to their interests.
[25] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 5(2).
[26] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 18.
[27] Pitjantjatjara Land Rights Working Party, Report of the Pitjantjatjara Land Rights Working Party of South Australia (1978) at pp 69-70.
Consequently, any Anangu aggrieved by a decision or action of the Executive Board may apply for conciliation in relation to that decision or action to the Minister[28] and to the District Court to enforce the decision of a conciliator.[29]
[28] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 35A.
[29] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 37.
It is also to be remembered that APY is an entity of defined powers. In this regard s 6(2) of the APYLRA provides:
(2)Subject to this section, Anangu Pitjantjatjara Yankunytjatjara has the following powers:
(a)     the power to sue and be sued; and
(b)     the power—
(i)to grant a lease or licence, for any period it thinks fit, in respect of any part of the lands to an Anangu or an organisation comprised of Anangu;
(ii)to grant a lease or licence, for a period not exceeding fifty years, in respect of any part of the lands to an agency or instrumentality of the Crown;
(iii)to grant a lease or licence, for a period not exceeding 10 years, in respect of any part of the lands to any other person or body of persons; and
(c)     the power to acquire by agreement, hold, deal in, or dispose of, land outside the lands; and
(d)     the power to enter into contracts; and
(e)     the power to appoint and dismiss staff; and
(f)    the power to receive and disburse moneys; and
(g)     the power to obtain advice from persons who are expert in matters with which Anangu Pitjantjatjara Yankunytjatjara is concerned; and
(h)     the power to establish offices; and
(i)    the power to make a constitution relating to—
(i)    the conduct of meetings of Anangu Pitjantjatjara Yankunytjatjara; and
(ii)    the procedures to be followed in resolving disputes; and
(iii)any other matter that may be necessary or expedient in relation to the conduct or administration of the affairs of Anangu Pitjantjatjara Yankunytjatjara; and
(j)    the power to take such other steps as may be necessary or expedient for, or incidental to, the performance of its functions.
Such powers are broad but they are constrained in their exercise by the functions that they are intended to serve. Further, s 7 of the APYLRA commands:
Anangu Pitjantjatjara Yankunytjatjara shall, before carrying out or authorising or permitting the carrying out of any proposal relating to the administration, development or use of any portion of the lands, have regard to the interests of, and consult with, traditional owners having a particular interest in that portion of the lands, or otherwise affected by the proposal, and shall not carry out the proposal, or authorise or permit it to be carried out, unless satisfied that those traditional owners—
(a)understand the nature and purpose of the proposal; and
(b)have had the opportunity to express their views to Anangu Pitjantjatjara Yankunytjatjara; and
(c)consent to the proposal.
Turning more particularly to the governance of APY, ss 9(1) and (2) in combination provide that there shall be an Executive Board of the body corporate comprised of 14 members elected or appointed in accordance with the Act. The Executive Board is the governing body of APY.[30] Sections 9 and 9C together provide that the Executive Board must consist of a chairperson, a deputy chairperson and a maximum of 12 other members all of whom must be elected or appointed in accordance with the APYLRA, but which cannot include the Director of Administration, the General Manager or an employee of APY. The functions of the Executive Board, which must be carried out in an endeavour to advance the interests of Anangu at all times,[31] are provided in s 9B(2). That section provides:
(2)     Subject to this Act, the Executive Board—
(a)     is responsible for carrying out the functions of Anangu Pitjantjatjara Yankunytjatjara and the day-to-day business of Anangu Pitjantjatjara Yankunytjatjara; and
(b)     may, in carrying out the functions of Anangu Pitjantjatjara Yankunytjatjara, exercise any power conferred on Anangu Pitjantjatjara Yankunytjatjara by or under this Act.
[30] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 9B(1).
[31] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 9B(3).
An act of the Executive Board done in accordance with the APYLRA is binding on the body corporate.[32]
[32] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 9B(5).
Under s 9B(4) the Executive Board must comply with a resolution of APY made at an annual general or general special meeting. An annual general meeting must be held once in every calendar year and no longer than 15 months after the preceding annual general meeting.[33] A special general meeting must be held if the Executive Board passes a resolution that such meeting be held or if 10 or more members of APY make a request to the Executive Board that such a meeting be held.[34] In either instance the meeting must be held as soon as is reasonably practicable after the resolution is passed or request made.
[33] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), ss 8(1) and (3).
[34] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 8(4).
The APYLRA does not deal with the procedure to be adopted at an annual general meeting or at a special general meeting of the body corporate other than to provide when they must be held. As ss 6(2)(i) and 14 make plain, the proceedings of APY, as distinct from the Executive Board, may be regulated by the APY constitution. The constitution is also capable of having a broader relevance.[35]
[35] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 6(2)(i).
In comparison to general meetings of the corporate body as a whole, meetings of the Executive Board must be conducted in accordance with s 10. The Executive Board must meet at least once every two months for the transaction of business.[36] Power is vested in the Minister to call a meeting of the Executive Board if the Chairperson refuses to do so or fails to do so within four months of the previous meeting or if two or more successive meetings are inquorate.[37]
[36] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 10(1).
[37] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 11(1).

A quorum of the Executive Board consists of half the total number of members plus one.[38] Each member present at a meeting has one vote on any question arising for decision and a decision carried by a majority is a decision of the Executive Board.[39] Accurate minutes must be kept, provision is made for proxies, and, subject to the APYLRA and the constitution, the Executive Board may determine its own procedures.[40] Board meetings must be open to all Anangu unless there are reasonable grounds to exclude a particular Anangu or class of Anangu, in which case such decision must be minuted.[41]
[38] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 10(2). In calculating half of the total number of members of the Executive Board any fraction resulting from the division is ignored.
[39] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), ss 10(4) and (6).
[40] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), ss 10(7), (10), (11), (13) and (14).
[41] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 12.
I pass over those sections that deal with the duties and obligations imposed upon Board members in their capacity as Board members, the prudential requirements attaching to actions of the Executive Board, and the duty to keep proper accounts which are audited annually and presented to the annual general meeting.[42]
[42] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), ss 12B, 12C, 12D, 12F, 12G,12H and 13.
The APYLRA also makes provision for the appointment by the Executive Board of a Director of Administration[43] and a General Manager.[44] The functions of the Director of Administration include to oversee the implementation of resolutions of APY and the Executive Board in addition to other functions assigned as part of the Director of Administration’s appointment or by the Minister.[45] The General Manager’s functions are set out in s 13E:
The functions of the General Manager are—
(a)to implement the resolutions of the Executive Board in a timely and efficient manner; and
(b)to undertake responsibility for the day-to-day operations and affairs of Anangu Pitjantjatjara Yankunytjatjara; and
(c)to ensure that records required under this or another Act are properly kept and maintained; and
(d)to discharge any duties under this or any other Act relating to financial and annual reports; and
(e)to ensure that the assets and resource of Anangu Pitjantjatjara Yankunytjatjara are properly managed and maintained; and
(f)to exercise, perform or discharge any other powers, functions or duties conferred on the General Manager by or under this or any other Act.
[43] The lands being defined as the lands referred to in Sch 1 of the Act: Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 4(1).
[44] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), ss 13B and 13D.
[45] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13C.
I pass over those sections of the APYLRA that deal with the professional duties and obligations imposed on those persons appointed to the positions of General Manager and Director of Administration including the power to terminate the appointments.[46]
[46] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), ss 13G, 13H, 13I, 13J and 13M.
In its Annual Report for 2015/2016 APY reported activities including road upgrade, waste management and landfill remediation projections, water and telecommunication infrastructure installation, tourism ventures, research into land tenure, heritage impact assessments, management of mineral exploration, pastoral management and environmental land management. APY is substantially funded by grants.
I turn to the powers of intervention that the APYLRA affords the Minister to whom the APYLRA is committed. These include:
·the Executive Board must, not later than 31 December in each year, prepare and submit to the Minister an annual report on the operations of the Executive Board during the financial year ending on the proceeding 30 June (and must provide a copy of the audited accounts for that financial year with the annual report);[47]
[47] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13A(1).
·the Executive Board must, not later than the prescribed day in each year, prepare and submit to the Minister for approval a budget setting out estimates of the Executive Board’s proposed expenditure for the next financial year or for some other period determined by the Minister;[48]
[48] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13A(2).
·the Minister must determine to approve, or not approve, a budget within 28 days after receiving the proposed budget, and may, in determining whether to approve the budget, take into consideration any matter the Minister thinks fit;[49]
[49] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13A(6).
·the proceedings of APY and the administration of the affairs of APY are to be governed by a constitution determined by APY and approved by the Minister;[50]
[50] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 14.
·the terms and conditions of the appointment of the General Manager and the Director of Administration are subject to approval by the Minister, and in deciding whether to approve the conditions the Minister may take into account any matter he or she thinks fit;[51]
[51] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), ss 13B(4), 13B(5), 13D(4) and s 13D(5).
·the Minister may direct the Executive Board to terminate the appointment of the Director of Administration or of the General Manager in certain circumstances;[52]
[52] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13G(4).
·as mentioned, the Minister may call a meeting of the Executive Board if one has not been called within four months of the previous meeting or two or more successive meetings are inquorate, and may direct the Board’s members to attend;[53]
[53] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 11.
·the Minister is to approve guidelines to be followed by the Executive Board and the General Manager when entering contracts or engaging in other commercial activities;[54]
[54] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 12G(1).
·the Minister may suspend the Executive Board for any reason the Minister thinks fit by notice in the Gazette for a period specified in the notice or until further notice in the Gazette;[55]
·the Minister is to appoint an administrator on terms and conditions determined by the Minister to administer the affairs of APY during the period of suspension of the Executive Board;[56]
·the Minister is to approve the remuneration, allowances and expenses of members of the Executive Board;[57]
·the General Manager may only appoint an employee of APY with the approval of the Minister, and the Minister may take into consideration any matter the Minister thinks fit;[58]
·the Minister may assign functions to the Director of Administration of APY;[59]
·any disclosure of a direct or indirect personal interest by the General Manager or the Director of Administration must be reported to the Minister;[60]
·members of the Executive Board must complete a course of training related to corporate governance that has been approved by the Minister;[61]
·an election of members of the Executive Board must be conducted during the period commencing 1 May and ending 31 August in the third year following the previous election unless the Minister determined otherwise;[62]
·by-laws made by APY are subject to confirmation by the Governor and to disallowance by Parliament, and notice of them must be given to the Minister in writing;[63] and
·the Minister may appoint and remove members of a panel of conciliators to resolve disputes between Anangu and APY.[64]
[55] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13O(1).
[56] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13O(2)(a).
[57] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 9E(1).
[58] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), ss 13L(2) and (6).
[59] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13C(b).
[60] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13J(6).
[61] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 9(9).
[62] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 9(6).
[63] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 43.
[64] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 35.
Importantly, for present purposes, s 13A(3) provides:
The Minister may, if he or she is satisfied that the Executive Board has refused or failed to perform or discharge a function or duty under this Act, by notice in writing, direct the Executive Board to prepare a report on the matter.
And s 13N(1) provides:
(1) If the Minister is satisfied that—
(a)the Executive Board has refused or failed to exercise, perform or discharge a power, function or duty under the Act or the constitution; and
(b)the refusal or failure has resulted in, or will result in, a detriment to Anangu generally, or to substantial section of Anangu,
the Minister may direct the Executive Board to take such action as the Minister requires to correct or prevent such detriment.
If the requirements of a direction under s 13N(1) are not complied with the Minister may take any action required by the direction,[65] with any reasonable costs and expenses incurred in taking such action to be recovered by the Minister from the Executive Board.[66] Action taken by the Minister may be taken on the Minister’s behalf by an employee of the administrative unit of the Public Service that is, under the Minister responsible for the administration of the APYLRA, or another person authorised by the Minister for the purpose.[67] It is an offence to hinder or obstruct the Minister or a person taking action on his behalf.[68]
[65] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13N(2).
[66] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13N(5).
[67] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13N(3).
[68] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 13N(4).
Section 13N was inserted into the APYLRA by the Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA) as part of a number of reforms intended “to provide a legislative framework for a more accountable and transparent system of governance on the Anangu Pitjantjatjara Yankunytjatjara (APY) lands”, including increasing ministerial powers and accountability.[69] In his second reading speech the Minister for Aboriginal Affairs and Reconciliation observed that:[70]
These changes are not about diminishing indigenous self-determination or taking away land rights; their purpose is to increase the confidence that Anangu have in their peak governing body by increasing the transparency and accountability of its decision-making. They are about making the executive board a more effective and responsive body with a greater capacity to implement the wishes of Anangu. The amendments will also improve the delivery of government services on the lands by refocussing the board’s activities on land management.
The checks and balances that are being proposed for the executive board represent normal standards of accountability and transparency. They are no more rigorous or onerous than those expected of other publicly funded corporations. In order to provide for public scrutiny of the measures taken by this bill, the minister must review the operation of the Pitjantjatjara Land Rights Act 1981 insofar as it is amended by the bill, and provide a report to both houses of parliament. The review must be undertaken and the report prepared within three years of commencement of clause 1 of this bill.
The bill is the result of extensive consultation with the current executive board, its legal representatives, Anangu, state and commonwealth government agencies and the general public. The Anangu consultations included public meetings at Indulkana, Umuwa and Pipalyatjara. …
[69] South Australia, Parliamentary Debates, Legislative Council, 14 September 2005, at p 2529.
[70] South Australia, Parliamentary Debates, Legislative Council, 20 September 2005, at p 2529.
It is unnecessary to track through the balance of the APYLRA in detail. Part 3 Div 2 deals with the right vested in APY to control entry to the lands, Div 3 with mining operations on the lands, Div 4 with the Mintabie precious stones field and Div 5 the right of the Crown to continue to occupy certain parts of the lands.
Part 4 of the APYLRA deals with the power vested in the Minister to appoint a panel of conciliators to deal with disputes on the lands. As mentioned above, the disputes that may be conciliated under Pt 4 are those where an Anangu is aggrieved by a decision or action of the Executive Board.
Part 5 of the APYLRA may be passed over save that reference should be made to the by-law making power. In particular, s 43(3) APYLRA vests power in APY to make by-laws regarding the consumption of, and treatment of, alcohol and other substances, the prohibition of specified forms of gambling, in addition to the granting of permission to specified persons to enter and remain on the lands.[71]
[71] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), s 19.
The FOI Act
Section 3(1) of the FOI Act states:
(1)The objects of this Act are, consistently with the principle of the Executive Government’s responsibility to Parliament—
(a) to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State; and
(b) to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies.
The principle of responsible government to which s 3 refers and which the FOI Act is intended to enhance is reflected in s 66(1) of the Constitution Act 1934 (SA) and the prohibition upon a person being a Minister of the Crown for more than three months unless he or she is a Member of Parliament. The practical effect of that prohibition is to ensure that those directly engaged in the conduct of Executive Government sit in Parliament where they are directly responsible to the Parliament. In Horne v Barber Isaacs J explained:[72]
When a man becomes a member of Parliament, he undertakes high public duties. Those duties are inseparable from the position: he cannot retain the honour and divest himself of the duties. One of the duties is that of watching on behalf of the general community the conduct of the Executive, of criticizing it, and, if necessary, of calling it to account in the constitutional way by censure from his place in Parliament—censure which, if sufficiently supported, means removal from office. That is the whole essence of responsible government which is the keystone of our political system, and is the main constitutional safeguard the community possesses.
[72] (1920) 27 CLR 494 at 500.
More recently in Egan v Willis Gaudron, Gummow and Hayne JJ said:[73]
A system of responsible government traditionally has been considered to encompass “the means by which Parliament brings the Executive to account” so that “the Executive’s primary responsibility in its prosecution of government is owed to Parliament”. The point was made by Mill, writing in 1861, who spoke of the task of the legislature “to watch and control the government: to throw the light of publicity on its acts”. It has been said of the contemporary position in Australia that, whilst “the primary role of Parliament is to pass laws, it also has important functions to question and criticise government on behalf of the people” and that “to secure accountability of government activity is the very essence of responsible government”. In Lange v Australian Broadcasting Corporation, reference was made to those provisions of the Commonwealth Constitution which prescribe the system of responsible government as necessarily implying “a limitation on legislative and executive power to deny the electors and their representatives information concerning the conduct of the executive branch of government throughout the life of a federal Parliament”. The Court added :
“Moreover, the conduct of the executive branch is not confined to Ministers and the public service. It includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature.”
In Australia, s 75(v) of the Constitution and judicial review of administrative action under federal and State law, together with freedom of information legislation, supplement the operation of responsible government in this respect.
[footnotes omitted]
[73] (1998) 195 CLR 424 at [42].
As a general proposition, it may be accepted that access to information about government and government agencies provides a means by which the exercise of executive power, or the failure to exercise executive power, may be scrutinised in the Parliament, in the media and in the community. As a tool for the evaluation of the exercise or non-exercise of power, such access to information serves as a check on those who would exceed their power and those who would fail to exercise it, in addition to promoting discussion on the nature and adequacy of the power, its appropriate exercise and the appropriate party, person or officer to exercise it. Generally speaking, this is the intended effect of the FOI Act. More specifically, s 3(2) of the FOI Act sets out the means by which the objects prescribed in s 3(1) are intended to be achieved. Sections 3(2) and (3) state:
(2)     The means by which it is intended to achieve these objects are as follows:
(a)     ensuring that information concerning the operations of government (including, in particular, information concerning the rules and practices followed by government in its dealings with members of the public) is readily available to members of the public and to Members of Parliament; and
(b)     conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy; and
(c)     enabling each member of the public to apply for the amendment of such government records concerning his or her personal affairs as are incomplete, incorrect, out-of-date or misleading.
(3)Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records otherwise than under this Act if it is proper and reasonable to do so or if it is permitted or required by or under any other Act or law.
The concepts of government and the operations of government as used in ss 3(2)(a) and (b) refer to the system by which the State as a body politic is governed and not to the government, being the party enjoying the majority in the House of Assembly. That is to say, the concepts of government and the operations of government include the operations of the government, but extend to agencies and instrumentalities of the State that may operate independent of government departments, and that are generally created by or pursuant to statute exercising power sourced in statute. The breadth of the concepts caters for the breadth of the power of the State to create executive bodies of various types and confer power accordingly. The inclusive breadth of the concepts also reflects the purpose of the FOI Act and the intention that Members of Parliament be able to obtain the information necessary to the discharge of their obligation to watch and, if necessary, to call the Executive to account.

The evidence establishes that no internal review was conducted. As a consequence, the deemed refusal of Dr McFetridge’s application for internal review was also triggered.[115]
[115] Freedom of Information Act 1991 (SA), s 29(5).
It is not suggested that Dr McFetridge’s application for external review was not validly instituted.
APY contends that the Ombudsman could not confirm, vary or reverse APY’s determinations on Dr McFetridge’s applications without first undertaking an investigation in accordance with s 39(5) of the FOI Act. In this case, the Ombudsman purported to reverse APY’s determinations without considering the documents subject of the applications. So doing the Ombudsman’s reversals are legally unreasonable and infected by jurisdictional error in two respects; first, in the circumstances of this case no determination could be made unless the documents subject of the applications were considered, and, second, the reversals have been made on a basis having no evidential foundation.
The power conferred by s 39(5)(a) of the FOI Act is permissive. The Ombudsman was under no duty to proceed by conducting an investigation under s 39(5)(a). Except as provided by ss 39(9) and (10), how the Ombudsman chooses to conduct a review is a matter in the discretion of the Ombudsman. There being no duty to proceed in accordance with s 39(5)(a), not doing so cannot amount to jurisdictional error.[116]
[116] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [22] (French CJ and Kiefel J).
I also accept the submission that the Ombudsman did, in any event, conduct an investigation into the subject matter of the application. True it is he did not exercise any of the coercive powers available to him under the Royal Commissions Act 1917 (SA), but he did correspond with APY and Dr McFetridge regarding the seven applications and the basis upon which it was determined that access to the documents should be refused. Further, he provided APY and Dr McFetridge with the opportunity to make submissions in relation to the content of his provisional determinations. That invitation was extended to Ms Morley and to Johnston Withers as interested parties.
In my view the ambit of any investigation undertaken for the purposes of a review will be a function of the nature of the dispute. In that connection it is to be recalled that the agency bears the onus of establishing that a determination is justified.[117] Thus, the scope of a review and any investigation will be determined primarily by the nature of the agency’s objection. Complexity may be introduced by the existence of a third party with an interest in the question of whether access be granted to documents held by the agency, but again how the Ombudsman chooses to proceed will be driven by the issues to be resolved.
[117] Freedom of Information Act 1991 (SA), s 48.
In the present case APY has always maintained that it was not an agency for the purposes of the FOI Act. No investigation beyond that undertaken by the Ombudsman was required in order that this issue be dealt with. To the extent that matters of commercial-in-confidence and legal professional privilege were raised by Ms Morley and Johnston Withers, they were not linked to any particular document but were raised at a level of generality. Further, the possibility that some documents subject of applications 2017/00112 and 2017/00117 were exempt was not embraced by APY. In my view the nature of the issues raised meant that it was unnecessary for the Ombudsman to see the documents subject of the applications in order to determine the review.
APY did not put its case so high as to contend that an external review could never be conducted without the Ombudsman viewing the documents. Accepting this, it cannot be the case that consideration of the documents subject of an application under external review is a mandatory consideration. Whether a determination on external review can be maintained without the Ombudsman viewing the documents subject of the relevant application is an issue that will go to whether or not the determination is legally unreasonable.
Something more should be said about s 48 of the FOI Act. In my view, an external review is a proceeding for the purposes of s 48. Implicitly, the burden in s 48 is not simply persuasive but evidential; accepting this, it is for the agency to put all information necessary to justifying a determination before the Ombudsman. Failure to do so does not necessarily frustrate an external review or mean that the Ombudsman must resort to the powers contained in the Royal Commissions Act 1917 (SA). But it will impact upon the discharge of the burden. That is to say, if an agency fails to put all information necessary to justify a determination before the Ombudsman then it risks the review being determined on the basis of what was before the Ombudsman. If the determination is adverse to the agency, it cannot complain.
In my view, s 48 had the consequence that if APY wished to contend that the documents subject of Dr McFetridge’s applications were exempt documents, it bore the onus of placing before the Ombudsman whatever material it considered justified the determination made. APY was afforded the opportunity to do so and declined. In this Court APY has adduced no evidence suggesting that consideration of the documents subject of Dr McFetridge’s applications may give rise to any different conclusion to that arrived at by the Ombudsman. In my view, it was not unreasonable in the legal sense for the Ombudsman to proceed as he did.
The contention that the Ombudsman proceeded to reverse the deemed determinations on the basis of no evidence is misconceived. There was evidence before the Ombudsman — the applications and the various communications with Dr McFetridge, APY, Ms Morley and Johnston Withers. If APY considered access by the Ombudsman to the particular documents was necessary to justifying APY’s determinations of the applications, it was for APY to adduce the documents. Here is must be remembered that access is the norm and exemption is the exception. All that has occurred is that APY has failed to discharge the onus.
When regard is had to the fact that an investigation was undertaken and that there was evidence before the Ombudsman, any argument as to legal unreasonableness can only succeed if the determinations lacked an evident and intelligible justification.[118] That question would need be answered having regard to s 48 FOI Act. In my view each of the determinations has the requisite justification and is not legally unreasonable.
[118] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ).
APY also contended that the Ombudsman exceeded jurisdiction in reversing APY’s determinations on applications 2017/00111, 2017/00113, 2017/00114, 2017/00115 and 2017/00116 without considering whether the documents subject of those applications were exempt. In my view, as a matter of construction the power contained in s 39(11) is not conditioned upon consideration of whether a document is an exempt document absent the agency, the applicant or an interested person raising such issue for consideration. Put slightly differently, s 39(11) of the FOI Act does not on its terms burden the Ombudsman with having to determine, independent of any contention raised by the agency, the applicant or an interested person, whether documents sought fall within any of the classes of exemption.
Further, to accede to APY’s submission would strip s 48 of its intended effect. In the present case APY did not raise the internal working documents exemption in relation to application 2017/00111 or the personal affairs exemption in relation to application 2017/00113, or the business affairs exemption in applications 2017/00114, 2017/00115 and 2017/00116. In my view, in such circumstances it was not necessary for the Ombudsman to consider those exemptions nor to refer to his having done so in his reasons. It was enough that the Ombudsman gave APY a reasonable opportunity to make any submission it wished in relation to the applications.
As I have said, access is the norm under the FOI Act and exemption is the exception. To accede to APY’s submission would alter that policy upon external review, and only external review, to one from access unless, to no access until. APY did not identify any textual or contextual hook supportive of its submission.
I turn to the complaint regarding the Ombudsman’s reasons more generally. This complaint was not that reasons were not provided, but that adequate reasons were not provided. More particularly, the submission was that the Ombudsman failed to provide reasons for concluding that APY was an incorporated body established for a public purpose by an Act within the meaning of paragraph (f)(i) of the definition of agency contained in s 4(1) of the FOI Act. I can deal with this complaint briefly. In view of my conclusion that APY is an agency within the meaning of paragraph (f)(iii) of the definition of agency contained in s 4(1), even if I were minded to agree with APY that the Ombudsman’s reasons were inadequate such as to amount to an error of law on the face of the record or a jurisdictional error, I would refuse to grant the relief sought in the exercise of my discretion. In my view there is no utility in setting aside the Ombudsman’s reasons on the basis that they fail to disclose his reasoning on a question of statutory construction where, for the reasons I have given, his ultimate conclusion (that APY is an agency to which the FOI Act applied) was in any event correct.
APY contends that in relation to application 2017/00112 the Ombudsman erred by asking himself the wrong question in considering the application of Sch 1 cl 7(1)(b) of the FOI Act. Sch 1 cl 7(1)(b) provides:
(1) A document is an exempt document—
…
(b) if it contains matter—
(i) consisting of information (other than trade secrets) that has a commercial value to any agency or any other person; and
(ii) the disclosure of which—
(A) could reasonably be expected to destroy or diminish the commercial value of the information; and
(B) would, on balance, be contrary to the public interest; …
It is to be noted that the requirements prescribed by cl 7(1)(b) are cumulative. Failure at any step is fatal to a claim that the relevant document is exempt under the FOI Act.
At paragraph 28 of his reasons on application 2017/00112 the Ombudsman stated:
For a document to be exempt pursuant to clause 7(1)(b), three criteria must be satisfied:
·     the document must contain matter consisting of information that has commercial value to any agency or any other person
·     the disclosure of that matter could reasonably be expected to destroy or diminish the commercial value of that information
·     the disclosure of that matter would, on balance, be contrary to the public interest.
The first dot point overlooks the requirement that the information must comprise other than trade secrets. In the present case I do not think the oversight matters. There was and is no suggestion that the documents to which application 2017/00112 relates contained trade secrets within the meaning of Sch 1 cl 7 of the FOI Act. Thus, in terms of the application with which he was concerned and having regard to the submissions he had received, in paragraph 28 of his reasons the Ombudsman correctly directed himself as to the task to be undertaken.
Immediately succeeding paragraph 28 the Ombudsman posed the question, “[w]ould any document that might be held by the agency contain matter consisting of information that has commercial value to any agency or any other person?”. The question accurately reflects the content of cl 7(1)(b)(i) and the first dot point in paragraph 28. The Ombudsman then considers two authorities dealing with the meaning of the expression “commercial value”. The Ombudsman quoted from each authority. The quotation taken from Re Cannon and Australian Quality Egg Farms Ltd provides two possible meanings that may be given to the expression “commercial value”; the information is valuable for the purposes of the carrying on of the commercial activity in which the particular agency or person is engaged (in the sense that it is important or essential to the profitability or viability of a continuing business operation or a pending transaction), or, the information has a commercial value in the sense that a genuine, arms-length purchaser is prepared to pay to obtain that information from the agency or other person.[119] In the second case, Media Research Group Pty Ltd v Department of Premier and Cabinet, it is said that information of commercial value is something less than a trade secret but nonetheless has “some measure of exclusivity”.[120] A statement of an amount paid under contract by a government agency does not, on its face, involve anything that could reasonably be said to be of “commercial value”. Information of “commercial value” ordinarily has a proprietary character, such as “information of an internal character (such as specialised statistics) or information the product of some unique or special intellectual processes of a high order”.[121] In this way the information has a uniqueness justifying its treatment as “exclusive, secret or confidential”. In Media Research Group Pty Ltd v Department of Premier and Cabinet the Administrative Decisions Tribunal of New South Wales stated that it is unrealistic to ascribe a “commercial value” to a document setting out the amount paid by government for services rendered to a business party under a contract.[122]
[119] (1994) 1 QAR 491 at [54]-[55] (Commissioner Albietz).
[120] [2011] NSWADTAP 7 at [39].
[121] Media Research Group Pty Ltd v Department of Premier and Cabinet [2011] NSWADTAP 7 at [48].
[122] Media Research Group Pty Ltd v Department of Premier and Cabinet [2011] NSWADTAP 7 at [50].
After quoting from the two authorities the Ombudsman stated:
In light of the above, I do not consider that any documents that might be held by the agency would contain information that is of commercial value to the agency or the interested parties. I conclude that any such documents are not exempt pursuant to clause 7(1)(b) of Schedule 1 to the FOI Act.
The Ombudsman does not venture an opinion as to which of the meanings referred to in the authorities to which he refers is correct. Nor does he attempt any analysis of the two authorities. I do not understand the Ombudsman to have made any choice as between the possible meanings of the expression “commercial value” discussed in the two authorities to which he refers, rather I understand the Ombudsman to have considered Johnston Withers’ submission in the light of the analysis undertaken in each of the authorities to which he referred and in each instance found the submission that the documents subject of application 2017/00112 contained matter having a commercial value to any agency or any other unpersuasive. It may be that the analysis in Media Research Group Pty Ltd v Department of Premier and Cabinet is unduly restrictive, but as I have said, the Ombudsman did not apply that analysis exclusively. I understand him to have also considered the submission in the light of the analysis in Re Cannon and Australian Quality Egg Farms Ltd.[123] I am not persuaded that the Ombudsman asked himself the wrong question in his application of Sch 1 cl 7(1)(b)(i).
[123] (1994) 1 QAR 491.
To the extent that it is contended that the Ombudsman failed to address the issue of whether procurement documents have a commercial value to APY, the disclosure of which may affect future tenders, four points may be made. First, Sch 1 cl 7(1)(b)(i) is not applied in the abstract, s 48 makes as much plain. APY made no submission to the Ombudsman that any of the documents sought were exempt under Sch 1 cl 7(1)(b) (nor did it attempt to do so in this Court). The Ombudsman would have been entitled to take into account the attitude of the agency regarding the supposed application of the exemption. Secondly, the Ombudsman considered Johnston Withers’ submission in which, amongst other things, it was contended that the documents were of commercial value to APY. True it is that the submission was not prominent and was not elaborated upon. However, no reason arises to think that this was overlooked and, for the reasons I have already given, it is not for the Ombudsman to conduct some sort of inquiry on behalf of an agency where the agency does not itself put or embrace a submission that documents requested under the FOI Act are exempt. Thirdly, once it is accepted that the Ombudsman did have regard to the issue to the extent it was raised, any contention that he failed to have regard to a mandatory consideration, if it be a mandatory consideration, cannot be sustained. Fourthly, once it is accepted that the Ombudsman did have regard to the issue to the extent it was raised, the question becomes one more in the nature of an asserted error within jurisdiction which can form no part of these proceedings.
Next APY attacks the Ombudsman’s application of Sch 1 cl 7(1)(c) of the FOI Act in his determination on application 2017/00112. Clause 7(1)(c) provides:
(c) if it contains matter—
(i) consisting of information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person; and
(ii)the disclosure of which—
(A) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency; and
(B) would, on balance, be contrary to the public interest.
The contention is that the Ombudsman misunderstood and did not address Ms Morley’s and Johnston Withers’ submissions on the application of cl 7(1)(c). More particularly, the Ombudsman is said to have failed to address the contention that disclosure of the retainer agreements entered into with the lawyers may affect future tenders for legal services. Consistent with other submissions advanced, the submission suggests that the Ombudsman was required, despite there being no claim made by APY that the documents sought were exempt, to consider whether they were in fact exempt. For the reasons I have previously given I reject that submission. I should add, the FOI Act does not prohibit an agency providing access to documents that might fall within one or more categories of exempt documents. This being so, the onus imposed by s 48 is all the more important. Again, absent any claim to exemption made by APY, the Ombudsman was entitled to proceed on the basis that there was no such claim and, subject to the question of whether APY was an agency, that APY was content for access to the documents subject of the applications to be granted.
In his reasons in relation to application 2017/00112 the Ombudsman said:
36.   I do not consider there is a reasonable expectation that disclosure of any retainer agreements held by the agency could reasonably be expected to have an adverse effect on the agency or the interested parties’ business affairs.
37.   As stated, a retainer is merely an agreement between a legal practitioner and client for the provision of legal services. It is evident from the submissions made by JWL and Ms Morley that the retainers they have entered into with the agency contain agreements relating to the fees they will charge for such work. I am not persuaded by JWL’s submission that disclosure of any such retainer could reasonably be expected to destroy or diminish JWL’s ability to quote for other work in competition with other legal firms. In reaching this conclusion I have taken account of the fact that the agency is aware of the fees being charged by JWL; it is already in a position where it could compare those fees to any fees quoted by a rival legal firm. I have also taken into account that any retainer would relate to the provision of legal services to a unique client - an organisation responsible for managing a vast tract of land for the benefit of the Anangu, a particular group of Aboriginal Australians. It seems unlikely to me that any rival legal firm would be asked to provide comparable legal services and thereby be placed in a position where it would be able to take commercial advantage of the fees charged by JWL by undercutting them.
38.   Ms Morley has advised that the fees she charges the APY are more favourable to that particular client than fees she charges other clients for commercial services. In those circumstances I consider that the chance of her being undercut by rival practitioners is remote. While Ms Morley claims that disclosure of any retainers held by the agency would negatively affect her ability to contract with other clients, I refer again to the uniqueness of the agency as a client. I think it unlikely that Ms Morley would be asked to provide legal services to another like client.
[footnote omitted]

Having regard to these passages, it cannot be said that the Ombudsman has not considered the submissions made by Ms Morley and Johnston Withers regarding the application of cl 7(1)(c). I do not think it can be said that the Ombudsman’s reasoning, bearing in mind APY’s then attitude, lacks an intelligent, rational foundation.
Lastly, in relation to application 2017/00112, APY contends that the Ombudsman asked himself the wrong question in his application of Sch 1 cl 9(1)(a). Clause 9(1) provides:
(1) A document is an exempt document if it contains matter—
(a) that relates to—
(i) any opinion, advice or recommendation that has been obtained, prepared or recorded; or
(ii) any consultation or deliberation that has taken place,
in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and
(b) the disclosure of which would, on balance, be contrary to the public interest.
In his reasons under the heading, “Clause 9(1)(a)”, the Ombudsman lists the elements of cl 9(1), before stating three questions each of which he answers in turn. The three questions reflect the elements of cl 9(1). They were:
Would any documents held by the agency relate to opinion, advice, recommendations, consultation or deliberation? (clause 9(1)(a)(i))
Would the documents have been obtained in the course of, or for the purpose of, the agency’s decision-making functions? (clause 9(1)(a)(ii))
Would the disclosure of any matter, on balance, be contrary to public interest? (clause 9(1)(b))
As is apparent, the questions largely follow the statutory language. The second question does not refer to documents prepared or recorded in the course of, or for the purpose of, the agency’s decision-making functions. Nothing turns on this.
In answer to the second question the Ombudsman stated:
43. The test for whether a document has been obtained for the purpose of the agency’s decision making function is quite broad, as was articulated in Daycorp Pty Ltd v Parnett:
Central to this class of documents are advising and deliberative documents which may influence or reflect the “thinking” of government decision-makers when performing a “decision-making function”. This potentially encompasses most documents produced in the course of decision making or policy formulation by a minister or agency other than matter which has only an administrative purpose.
44. As any retainer agreements held by the agency would not reveal the nature or any details or advice or deliberation, I am not satisfied they would have been obtained in the course of, of, [sic] or for the purpose of the agency’s decision-making functions. They would merely reflect an agreement between the agency and the interested parties in relation to the future provision of legal services. Any such retainer agreements would not be exempt pursuant to clause 9(1)(a) of Schedule 1.
[footnotes omitted]
APY seizes upon the language of the opening sentence to paragraph 44 as indicating that the Ombudsman has applied the wrong test in his consideration of the application of cl 9(1). The submission is correct insofar as it is not necessary for a document to reveal the nature or details or any advice or deliberations for it to be a document containing matter that relates to opinion, advice or recommendations obtained, prepared or record, or consultation or deliberation that has taken place. Respectfully, I do not think that Daycorp Pty Ltd v Parnell states the test applicable in considering the second question.[124] But if a document contains matter that relates to opinion, advice or recommendation that has been obtained, prepared or recorded, or consultation or deliberation that has taken place, but does not reveal the nature or any details of opinion, advice or recommendation, or of the consultation or deliberation, it would be most exceptional for the disclosure of such document to be contrary to the public interest.
[124] [2011] SADC 191.
Here it is to be recalled that the Ombudsman only concluded that retainer agreements did not reveal the nature or any details of opinion, advice or recommendation, or of the consultation or deliberation. No complaint is made of the Ombudsman’s conclusion that it would not be contrary to the public interest to disclose all other documents caught by application 2017/00112 to which cl 9(1) applied. As to the third question and the public interest the Ombudsman said:
46.   For any documents referred to in paragraph 44 above to be exempt, it must be established that their disclosure would, on balance, be contrary to the public interest. Factors weighing in favour of disclosure include:
·the public interest in citizens generally and Members of Parliament being informed of the processes of agencies
·the unlikelihood that disclosure of any documents would interfere in the proper workings of the Government or the agency
·the disclosure of any documents that might exist would unlikely to be misunderstood or lead to ill-informed debate or undesirable speculation
·any documents that exist would unlikely to be particularly sensitive.
47.   I specifically reject JWL’s submission that disclosure of any documents would be contrary to the public interest because it would be ‘likely to impede on the ability of APY to make informed and appropriate decisions’. I cannot see how the disclosure of any documents that might exist could possibly have this effect.
48.   In the absence of submissions from the agency, I am unable to generate any factors that would weigh against disclosure of any documents.
In my view, even if the Ombudsman had asked himself the right question in his consideration of question 2, he would have arrived at no different conclusion bearing in mind his conclusion on the third question and the absence on the part of APY of any claim that the documents were exempt. No reason exists for the Ombudsman to treat retainer agreements differently to the other documents caught by the application. As I have said, the Ombudsman was entitled to take into account the absence of any claim on the part of APY to exemption. In my view, notwithstanding the error identified I would refuse to grant the relief sought in the exercise of my discretion.
In relation to application 2017/00117 APY contends that the Ombudsman erred in his consideration of the application of Sch 1 cl 10 in that he applied the wrong test. It is to be recalled that application 2017/00117 sought copies of costs agreements and invoices issued by Mr Stirk and Ms Morley in the period of 18 months prior to the date of the application. The Ombudsman determined:
50. Costs agreements do not generally attract legal professional privilege unless the document itself refers to legal advice. In CSR v Eddy, Hodgson JA said:
Costs agreements that do no more than specify rates for work to be done by specific classes of persons, and/or give a global figure for carrying out a specified task, and/or give estimates for carrying out a specified task, are not the subject of client legal privilege at general law. However, if an agreement contains material which expressly or impliedly conveys legal advice or views about tactics or strategy, that material may be privileged.
51. I do not accept that any documents that might be held by the agency would be exempt pursuant to clause 10(1) of Schedule 1. Ms Morley has not submitted that any costs agreements that might be held by the agency convey legal advice or views about tactics or strategy that might attract legal professional privilege. Any invoices held by the agency would not have been issued for the dominant purpose of obtaining or giving legal advice.
[footnotes omitted]
Under Sch 1 cl 10 of the FOI Act a document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. It might be said that the Ombudsman would have reasoned more correctly had he said that he was not satisfied that any invoice within the ambit of the application was prepared for the dominant purpose of giving legal advice. However, in my view that is what he meant. I am not persuaded that the Ombudsman applied the wrong test in his application of Sch 1 cl 10 to application 2017/00117.
I turn to the third ground of review which challenges the reasonableness of the Ombudsman’s comment made in relation to each application that, in failing to discharge its duty to cooperate in the conduct of the external review process, APY’s conduct had been unreasonable.
In my view a comment forms no part of a determination. It is irrelevant to the exercise of the power contained in s 39(11). As much is plain from the textual location of the power to make a comment in s 39(16) (thus forming no part of the exercise of the power contained in s 39(11)) and the text of s 39(16) itself, including the fact that the power to make a comment is discretionary and that the reasons for a determination are separate and distinct to any comment, though a comment may be included in those reasons. It follows that whatever the reasonableness or otherwise of a comment made, it will not result in the quashing of a determination.
The evident purpose of s 39(16) of the FOI Act is to encourage cooperation where applications are made under the FOI Act and the appropriate exercise of rights under that Act upon threat of public admonishment.
Each of the Ombudsman’s provisional determinations contained the comment. To the extent that APY was invited to make any submission it wished in relation to the provisional determinations including the comments, it was afforded procedural fairness. A comment made under s 39(16) has no legal consequence or legal effect for the person or agency about whom it is made. It is not amenable to certiorari save where a failure to afford procedural fairness has occurred.[125] That is not this case.
[125] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580-581 (Mason CJ, Dawson, Toohey and Gaudron JJ).
Before leaving this issue I should make plain that the right to comment provided by s 39(16) should be exercised judiciously. An agency may disagree and disagree vigorously yet reasonably with the provisional views of the Ombudsman. That the Ombudsman is equally adamant that his view of an issue is correct does not mean that the agency has conducted itself unreasonably. Where an agency considers that it is not an agency at all for the purposes of the FOI Act, it would not waive the right to advance such argument in the SACAT or in this Court simply by providing the documents subject of an FOI application to the Ombudsman. It could do so on the understanding that it should not be taken to have waived or abandoned in any way the question of whether the FOI Act applies to it. If doing so means the incursion of cost, that issue would be dealt with under the FOI Act in the usual way. The agency could also seek an undertaking from the Ombudsman that in the event that he determined an external review adverse to the agency, he would not provide access to the documents for an agreed period (perhaps no greater than 30 days; see s 40(3) FOI Act) in order that the agency be given the opportunity to consider its options. I express no concluded view on the circumstances of this case, it seems to me, however, that subject to cost (by which I mean cost involved in identifying, retrieving and copying documents subject of an application) it will be a rare case where the agency refuses to provide the documents subject of an application to the Ombudsman as part of an external review if requested to do so.
Conclusion
I dismiss the application.