Arnold v The State of Queensland

Re: JANE SUZANNE ARNOLD on behalf of AUSTRALIANS FOR ANIMALS
And: THE STATE OF QUEENSLAND; THE AUSTRALIAN NATIONAL PARKS AND WILDLIFE
SERVICE
No. NSW G395 of 1986
Freedom of Information - Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.
Wilcox J.
Burchett J.

CATCHWORDS

Freedom of Information - Commonwealth State relations - Documents containing information supplied by State officers to Commonwealth officers upon the assumption that this information would be kept confidential - Claim that disclosure could reasonably be expected to cause damage to relations between Commonwealth and that State - Whether there was evidence before Administrative Appeals Tribunal to support finding of potential damage - Finding that disclosure would not, on balance, be in the public interest - Whether misdirection by Tribunal in requiring "exceptional" circumstances to justify finding that disclosure would, on balance, be in the public interest.

Practice and Procedure - Appeal from Administrative Appeals Tribunal - Leave granted by Tribunal to join as a party an unincorporated association - No specificating representative of association - Competence of appeal in name of association - Application for amendment to add name of representative party.

Security for Costs - Relevance of nature of proceedings and timing of application.

Circumstances warranting exercise of discretion regarding costs of proceedings so as to deny successful respondent an order for costs.

Freedom of Information Act 1982 ss.3,32,33A

Administrative Appeals Tribunal Act 1975 ss.3,27,30,44

Acts Interpretation Act 1901 s.22

Federal Court Rules 0.4 R.4, 0.53 R.8

HEARING

SYDNEY

#DATE 13:5:1987

Counsel for the Applicant: Mr J Basten

Solicitors for the Applicant: Environmental Defenders Office

Counsel for the First Respondent: Mr C E K Hampson QC with Mr K F Watson

Solicitor for the First Respondent: Crown Solicitor (Qld)

Appearance for the Second Respondent: Ms B Pearson (Solicitor)

Solicitor for the Second Respondent: Australian Government Solicitor

ORDER

The Notice of Appeal and all documents subsequently filed in the proceeding be amended nunc pro tunc by substituting for the name of the applicant as therein shown the words "Jane Suzanne Arnold on behalf of Australians for Animals".

The Notice of Motion dated 26 September 1986 filed on behalf of the first respondent be dismissed.

The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In this case I have had the particular advantage of reading the draft judgments of both Wilcox and Burchett JJ. I agree with Wilcox J. on the issues he has dealt with under the headings "Regularity of the appeal" and "Security for costs". I have nothing to add on these matters.

On the merits of the appeal, I find myself in general agreement with the reasons for judgment of Burchett J. and particularly with his views as to the proper approach to the exemption provisions of the Freedom of Information Act 1982 ('the Act') and especially to s.33A(1) (a) of the Act. I also agree generally with the reasons for judgment of Wilcox J.
For the reasons which have been given by my brother judges, I am not persuaded that any error of law in the findings of the Tribunal has been shown. I agree that the appeal should be dismissed, with no order as to costs.

JUDGE2

The substantive question raised by this appeal is whether a decision by the Administrative Appeals Tribunal that certain documents were exempt from production under the Freedom of Information Act 1982 was affected by error of law. The ground of exemption upheld by the Tribunal was that disclosure of the documents could reasonably be expected to cause damage to relations between the Commonwealth and the State of Queensland.

However, some preliminary matters have arisen between the parties. It is convenient to dispose of them first.
The application for access
Australians for Animals ("the Association") is an unincorporated association carrying on activities under that name and comprising -- we were told by counsel -- some 26,000 members. The Association is a registered charity, under New South Wales law, but it has no legal identity separate from that of its members.
During recent years it has been the policy of successive Commonwealth governments to permit, subject to conditions, the export of koalas to overseas zoos. In 1980 policy guidelines, containing standard conditions, were announced in the Senate on behalf of the then Minister for Science and the Environment. In the years 1983 and 1984 the Australian National Parks and Wildlife Service ("ANPWS") reviewed those guidelines. The revised guidelines were tabled by the present Minister in the House of Representatives on 6 September 1984. During the course of this revision ANPWS consulted, amongst others, the Queensland National Parks and Wildlife Service ("QNPWS"). The correspondence exchanged between ANPWS and QNPWS during the course of that consultation constitutes the documents held by the Tribunal to be exempt from disclosure.
By letter dated 25 January 1985, the Association applied for access to the following:

"1. All applications from International Zoos for koalas since 1983, including current applications.

2. All correspondence regarding the export of koalas between the ANPWS and the Governments of Queensland and New South Wales.

3. All correspondence between the ANPWS and the Japanese Government regarding the proposed exports of koalas."

On 15 March 1985 ANPWS advised that:

(a) Access was granted to the documents in category 1 above.

(b) Access to correspondence between the ANPWS and the Governments of Queensland and New South Wales was subject to further consideration and that the requirements of s.26A of the Freedom of Information Act made it appropriate to extend the time for response to the request in this respect to 30 March 1985.

(c) No correspondence between the ANPWS and the Japanese Government (category 3 above) was held.

On 27 March 1985 ANPWS wrote again to notify the Association that access was granted to the correspondence between ANPWS and the Government of New South Wales but that, by reason of a request in that regard by the Government of Queensland, access to the correspondence between ANPWS and that Government was refused. At the request of the Association the decision to refuse access was internally reviewed. But the earlier decision was affirmed. The Association sought review of that decision by the Administrative Appeals Tribunal. ANPWS reconsidered its position and, on 2 July 1985 after consultation with Queensland, Mr N C Gare, the Acting Director of ANPWS decided that access should be granted to all the documents.
The proceedings before the Tribunal
Queensland applied to the Tribunal for review of the Acting Director's decision. The stated reasons for the application were:

"(1) Access to such documents are inconsistent with and impair the confidential relationship between the State of Queensland and a Department of the Commonwealth.

(2) The State of Queensland is concerned to maintain the confidentiality of confidential correspondence between the State of Queensland or its officers, servants or agents and officers of the Commonwealth."

At the commencement of the hearing before it the Tribunal -- which was constituted for the purpose by the President, Davies J, Dr A P Renouf and Mr G D Grant, though Mr Grant retired before the hearing concluded and took no part in the final decision -- ordered that "Australians for Animals are joined as parties in the application by the State of Queensland". No reference was made to the legal status of the Association. No requirement was imposed for the nomination of one or more individuals to act as representative parties on behalf of the members of the Association.
Initially, there were 22 documents in contest. During the course of the hearing one further document was identified as being within the scope of the request for access, making 23 in all. But, also during the hearing, it emerged that seven of these documents were already public or outside the request so that, in the end, the Tribunal was concerned with 16 documents. The Tribunal found that these documents fell into two categories. Some related to an application which the State of Queensland itself had made to the federal Minister for permission to export koalas. As to these documents, the Tribunal held that Queensland was not in a position materially different from that of other applicants for an export permit and that the documents were not exempt. There is no appeal by Queensland from this aspect of the Tribunal's decision.
The second category of documents constituted the series of correspondence between ANPWS and QNPWS in relation to the development of the revised export guidelines. In relation to those documents the Tribunal rejected the claim of Queensland that the documents were "communicated in confidence" by QNPWS to ANPWS: see s.33A(1)(b) of the Freedom of Information Act. However, as already mentioned, it upheld Queensland's alternative claim -- under s.33A(1)(a) of the Act -- that disclosure could reasonably be expected to cause damage to relations between the Commonwealth and Queensland.
The proceedings in this Court
On 11 September 1986 the Association appealed to this Court against the decision of the Tribunal. The Notice of Appeal identified the applicant simply as "Australians for Animals", without the nomination of any representative party. By Notice of Motion filed on 26 September 1986 Queensland sought an order that the applicant give security for the costs of the appeal. This application came before Burchett J on 16 October 1986 when there was some discussion regarding the regularity of the appeal. Thereafter the applicant filed a Notice of Motion seeking an order, if the Court held the proceedings to be irregularly constituted, substituting as the applicant "Jane Suzanne Arnold on behalf of Australians for Animals". The respondent, the State of Queensland, amended its Notice of Motion so as to add a prayer for an order striking out the appeal as being irregular. At the call-over of the appeal Bowen CJ directed that both Notices of Motion be listed for hearing by the Full Court constituted to hear the appeal and immediately prior to the appeal itself. After argument on these preliminary matters we announced that the application for security for costs was dismissed, for reasons to be subsequently announced. We reserved our decision in respect of both applications concerning the regularity of the proceedings. We then proceeded to hear, and subsequently to reserve our decision upon, the appeal itself.
Regularity of the appeal
Section 30(1) of the Administrative Appeals Tribunal Act 1975 provides that the parties to a proceeding before the Tribunal for review of a decision are:

"(a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;

(b) the person who made the decision;

(c) if the Attorney-General intervenes in the proceeding under section 30A--the Attorney-General; and

(d) any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with sub-section (1A)."

Sub-section (1A) of s.30 provides:

"(1A) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding."

The Association was admitted as a party to the proceeding before the Tribunal pursuant to this sub-section.

It is provided by s.22(a) of the Acts Interpretation Act 1901 that the word "person" -- where used in a Commonwealth Act and unless the contrary intention appears -- includes a body politic or corporate as well as an individual. Neither that Act nor the Administrative Appeals Tribunal Act suggests that "person" includes an unincorporated association lacking separate legal identity. I know of no case in which such an organization has been recognized as a "person" and it seems correct in principle to restrict the application of the word "person" in s.30 to individuals and to bodies politic and corporate, all of whom have a recognized separate legal identity.
This conclusion is supported by the insertion in the Administrative Appeals Tribunal Act of s.3(2). This sub-section, in effect, deems an unincorporated decision-maker to be a "person", a provision which would not be necessary if "person" had the wide meaning necessary to include an unincorporated body. That sub-section reads:

"3.(2) Where a board, committee or other unincorporated body constituted by 2 or more persons is empowered by an enactment to make decisions, this Act applies as if that board, committee or other body were a person empowered to make those decisions."

Counsel for the applicant referred us to s.27 of the Act which, he submitted, indicated an intention by the draftsman to use the word "person" so as to include an unincorporated body. Relevantly s.27 provides:

"27.(1) Where this Act or any other enactment provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision.

(2) An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association.

(3) ..."

There are some difficulties of interpretation in s.27. Sub-section (2) relates, inter alia, to unincorporated organizations, deeming their interests to be affected by a decision if the relevant decision relates to a matter included in their objects or purposes. This deeming provision is for the purposes of sub-s.(1), which relates to an application "made by or on behalf of any person or persons ... whose interests are affected by the decision". Thus, the argument runs, the "person or persons" envisaged by sub-s.(1) may be an unincorporated organization having particular objects.
There is force in this submission. It seems that s.27 demonstrates an intention to permit an unincorporated organization to be an applicant for review. If that be the correct view, the reference to "person" in s.30(1)(a) would have to be read as including an unincorporated organization or association. However, that does not assist the present applicant. Whether deliberately or otherwise, the draftsman of the Act has not made any similar provision in relation to the word "person" in s.30(1)(d). In that paragraph "person" should be given its normal meaning so as to exclude an unincorporated body not recognized as having a separate legal identity. It follows that the Association was not entitled, as such, to be admitted as a party to the proceedings before the Tribunal. And only a "party to a proceeding before the Tribunal" may appeal to this Court from its decision: see Administrative Appeals Tribunal Act s.44.
In this situation counsel for the respondent argued that the present appeal is incompetent. They submitted that the order made by the Tribunal for the joinder of the Association was a nullity, that neither the Association, as such, nor any of its members was a party to the proceedings before the Tribunal and that, in consequence, no appeal lay from the Tribunal's decision; either by the Association or by any one on its behalf. There is nothing to indicate, they submitted, that the Tribunal realized that the Association was unincorporated or that it intended to admit as a party any of the members of the Association.
I do not accept the submission of incompetence. The relevant question is not the subjective intention of the members of the Tribunal but the effect of their order. Once it is understood that there is no corporate entity known as "Australians for Animals" and that an unincorporated association may not be joined as a party under s.30(1)(d), effect can be given to the Tribunal's order only by reading it as an order joining as parties the individual members of the Association as at that date. Such a construction of the order would not be unusual or artificial. Rules of Court frequently permit proceedings to be instituted in the name of, or against, a firm or unincorporated association; see, for example, both the limited provisions contained in O.42 rr.12-21 of the Federal Court Rules and in Part 64 of the Rules of the Supreme Court of New South Wales and the wider provisions of Rule 36 of the Rules of the Supreme Court of South Australia. In such a case the real parties are always the members of the relevant firm or association.
In a case where the members of a firm or of an unincorporated association are numerous it is customary to name one or more of the members as a representative of them all. This was not done in the present case; possibly because, there being no provision for costs of the hearing before the Tribunal and no question of the enforcement of any order of the Tribunal against the Association or any of its members, it seemed unnecessary so to do. But in this Court there is no provision for litigation by unincorporated associations otherwise than by a representative; see O.4 r.4(1)(b). As parties before the Tribunal the members of the Association have a right of appeal to this Court on a question of law: see s.44(1) of the Administrative Appeals Tribunal Act. But when they exercised that right they should have done so by filing a Notice of Appeal disclosing a named representative of them all. Their failure to do this goes to regularity rather than to competence. The matter may be rectified by an appropriate amendment of the record. There being no question of prejudice to others, it is appropriate to accede now to the application made on behalf of the applicant and to order that the title to the Notice of Appeal, and to all documents subsequently filed in the matter, be amended nunc pro tunc by substituting for the name of the applicant as thereon shown the words "Jane Suzanne Arnold on behalf of Australians for Animals".
Security for costs
Order 53 r.8(1) empowers the Court "in special circumstances" to order, in relation to an appeal from the Administrative Appeals Tribunal, "that such security for costs of appeal to the Court be given as it thinks fit". Subject to that special case, no security for costs is required: see O.53 r.8(2).
Rule 8(1) gives no guidance as to the nature of the special circumstances which will attract an order for security for costs. No doubt the capacity of the applicant to pay any costs which may be ordered against him or her is always a relevant matter but mere impecuniosity will not necessarily lead to an order for security: see Cameron's Unit Services Pty Limited v Kevin R Whelpton & Associates (Aust) Pty Limited (1986) ATPR 40-732. Care must be taken not to stifle an action which, in the interests of justice, ought to be determined on its merits.
In the present case it would not be right to order security for costs. The evidence filed in support of the motion is sparse. It discloses little about the affairs of the Association, with no information as to its income or assets, and nothing about the financial affairs of any of its members. Impecuniosity is not shown. If any reliance were placed upon counsel's statement as to the number of members, it would be impossible to believe that an order for costs against a representative of those members, which order would be enforceable against each member individually, would be difficult of enforcement. And, in any event, this is a case where it would be wrong to stifle the litigation. The applicant seeks to raise significant questions regarding the interpretation and application of s.33A of the Freedom of Information Act. Section 33A is a provision of major importance, especially to the various State governments. It has not previously been considered in this Court.

Finally, reference should be made to the practical effect of making an order for security for costs. As already mentioned, argument on the application for security for costs was heard immediately before the appeal itself. A large proportion of the costs of the appeal had by then been incurred. The consequence of an order for security would have been an adjournment of the hearing of the appeal, with either duplication or waste of those costs.
For all of the above reasons I concurred in the decision to dismiss the application for security for costs.
The history of s.33A
Section 33A was added to the Freedom of Information Act by Act No.81 of 1983. The section commenced to operate on 1 January 1984. Prior to that date the matters of Commonwealth/State relations, and of information communicated by a State to the Commonwealth, were treated in similar manner to the security, defence and international relations of the Commonwealth and to information communicated by a foreign government to the Commonwealth government. The old s.33(1) was in the following form:

"33.(1) A document is an exempt document if disclosure of the document under this Act would be contrary to the public interest for the reason that the disclosure--

(a) could reasonably be expected to cause damage to--

(i) the security of the Commonwealth;

(ii) the defence of the Commonwealth;

(iii) the international relations of the Commonwealth; or

(iv) relations between the Commonwealth and any State or the Northern Territory; or

(b) would divulge any information or matter communicated in confidence by or on behalf of the Government of another country, or of a State or the Northern Territory, to the Government of the Commonwealth or a person receiving the communication on behalf of that Government.

Sub-section (2) empowered the Minister -- and by sub-s.(5) his delegate -- to give a conclusive certificate that a document was exempt under sub-s.(1). The powers of the Tribunal did not extend to review of the decision to give such a certificate: see s.58(3).

The course adopted by the 1983 amendments was to draw a distinction between Commonwealth/State relations and communications, on the one hand, and the other subjects dealt with by the old s.33. The provisions of s.33 relating to security, defence, international relations and confidential communications from foreign governments were left substantially unchanged. But the references to Commonwealth/State relations, and to confidential communications between the States and the Commonwealth, were omitted from s.33 and inserted into a new s.33A, as follows:

"33A.(1) Subject to sub-section (5), a document is an exempt document if disclosure of the document under this Act--

(a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or

(b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

(2) Where a Minister is satisfied that a document is an exempt document for a reason referred to in sub-section (1), he may sign a certificate to that effect (specifying that reason) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the document is an exempt document referred to in sub-section (1).

(3) Where a Minister is satisfied as mentioned in sub-section (2) by reason only of matter contained in a particular part or particular parts of a document, a certificate under that sub-section in respect of the document shall identify that part or those parts of the document as containing the matter by reason of which the certificate is given.

(4) ...

(5) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

(6) The responsible Minister of an agency may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to the principal officer of the agency his powers under this section in respect of documents of the agency.

(7) ...

(8) ..."

The amendments inserted by s.33A represented a significant shift in policy, in favour of more open government. Previously the certificate of the Minister, or of the Minister's delegate, was conclusive both upon the question whether the document fell within a class specified in sub-s.(1) and also upon the question whether its disclosure would be in the public interest. Indeed it is not clear that the section created a separate question of public interest. One commentator expressed the opinion that the use of the words "for the reason that" had the effect of excluding any independent criterion of public interest, disclosure being presumed to be contrary to the public interest if the document fell within one of the specified categories. See Bayne "Exemptions under the Freedom of Information Act", a paper delivered to a seminar on Access to Government Information at the Australian National University, 27-29 May 1983, at p.2.
The new s.33A retained the notion of a conclusive Ministerial certificate; but there were three significant changes. First, under the new scheme the Ministerial certificate went only to the classification of the documents. It did not deal with any question of public interest. That became one for determination by the Tribunal upon review. Secondly, this determination was now explicitly required to be made upon a balance; taking into account not only the public interest in the non-disclosure of documents falling within a class mentioned in sub-s.(1) but also any public interest in the disclosure of the particular document or documents. Finally, even the certificate as to classification was made subject to limited review. The Tribunal, by the new s.58(4), is now empowered to determine whether there exist reasonable grounds for the claim to exemption.
Construction of s.33A
It is convenient at this stage to make some observations about the construction of s.33A. First, paras.(a) and (b) are separate grounds of exemption. Each must be given separate weight: see s.32 of the Act. There may be cases in which the possible damage to inter-government relations arises out of the publication of information furnished by a State to the Commonwealth. But para.(a) is not concerned only -- or even primarily -- with information so communicated. The Freedom of Information Act relates to all information in the possession of the Commonwealth government and of its agencies. It is inevitable that, from time to time, documents will be created within the Commonwealth bureaucracy -- or be received by the Commonwealth from others -- which contain material critical of the policies of, or of persons within, a particular State government or which contain proposals for Commonwealth action which might be upsetting to one or more States. The public disclosure of such a document may disrupt harmony between that State and the Commonwealth.
Secondly, the words "relations between the Commonwealth and a State" refer to the total relationship between the Commonwealth and the relevant State. As is essential in a federation, there exists a close working relationship, over a wide spectrum of matters and at a multitude of levels, between representatives of the Commonwealth and representatives of each State. The word "relations" includes all of those contacts. It would not normally be correct to describe a falling out between particular individuals on each side as constituting damage to "relations" between the two governments, even if there was some loss of co-operation between those individuals. But a dispute may have ramifications sufficiently extensive for it to affect "relations" between the governments as such. Questions of degree arise. They can only be considered in the light of the facts of each case.
Thirdly, the words "could reasonably be expected" do not require the demonstration of a probability of damage. In Attorney-General's Department v Cockcroft (1986) 64 ALR 97 a Full Court considered the meaning of the words "could reasonably be expected to prejudice the future supply of information" as appearing in s.43(1)(c)(ii) of the Act. At p.106 Bowen CJ and Beaumont J said that those words "require a judgment to be made by the decision maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document were disclosed under the Act". See also the test of "real and substantial grounds" proposed by Sheppard J at p.112.
Finally, it is important to bear in mind the significance of sub-s.(5) in the scheme of s.33A. Sub-section (5) assumes that, as a general principle, there is a public interest in the non-disclosure of a document falling within sub-s.(1). But it contemplates that, nonetheless, it may, on balance, be in the public interest for matter in that document to be disclosed. The sub-section does not specify criteria for consideration in the making of that judgment. All relevant circumstances must be taken into account. One of those circumstances will always be the principle enshrined in s.3 of the Act. That section reads as follows:

"3.(1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by--

(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

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

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

It will be noted that Parliament was not content merely to espouse a policy of extending access to information, as stated in s.3(1). The legislature went further by requiring the implementation of that policy, as far as possible, in the exercise of the discretions conferred by the Act. Although it would not be correct to regard s.33A(5) as conferring a discretion, the command of s.3(2) is an indication that Parliament regarded the principle of facilitating and promoting the disclosure of that information as itself constituting a weighty factor to be taken into account in making a judgment as to the public interest in any decision whether to disclose particular documents. In a particular case, especially where the degree of public disadvantage caused by disclosure is small, or the prospect of any public disadvantage is comparatively remote, that principle may itself be enough to tip the balance in favour of disclosure, notwithstanding that the information falls within s.33A(1).
The classification of the documents
The Tribunal rejected the claim made by Queensland, in reliance upon s.33A(1)(b) of the Act, that the documents relating to the revision of the koala export guidelines would divulge information communicated in confidence by Queensland to the Commonwealth. It had been argued that all communications between Queensland and its authorities, on the one hand, and the Commonwealth and its authorities, on the other, were confidential. But the Tribunal did not agree:

"There are many communications between authorities of the Commonwealth and authorities of the State of Queensland which are of a purely routine nature involving no sensitivity. We do not accept that there is any general understanding that all such communications are confidential."

The Tribunal held that, in the present case, an obligation of confidence was neither expressed nor mutually understood. There was evidence, which the Tribunal accepted, that ANPWS did not regard the communications as confidential.
The Tribunal went on to consider whether there was any implied obligation of confidentiality. It held that, notwithstanding that the documents concerned the formulation of policy, any implication must be excluded by the circumstance that the communications were not only with QNPWS but also with equivalent bodies in other States and with various non-governmental agencies with an interest in koalas. In the result, therefore, the Tribunal held the documents to fall outside s.33A(1)(b). This finding was not disputed on appeal.
However, notwithstanding its finding that the documents were not in fact confidential, the Tribunal did accept evidence that the relevant officers of QNPWS assumed that the correspondence upon the guidelines would be kept confidential by the Commonwealth. The Tribunal also accepted evidence by Mr P T Smith, Director of the Inter-Governmental Relations Division of the Premier's Department, within the Queensland government, that the public disclosure of the documents would adversely affect future relations between the two governments.
The finding made by the Tribunal relating to potential damage was a finding of fact. The applicant has a right of appeal to this Court only upon a matter of law. Although the Notice of Appeal raises many matters, counsel for the applicant, recognizing the restricted nature of the right of appeal, limited himself to a submission -- on this aspect of the case -- that there was no evidence to sustain the finding that disclosure could cause damage to relations between the Commonwealth and a State. Mr Smith's evidence, he said, was predicated upon an assumption that the documents were in fact confidential. He submitted that his evidence did not address the factual position as found by the Tribunal: that the documents were not in fact confidential but were erroneously assumed so to be by officers of QNPWS. Counsel contended that there was no evidence to support the conclusion that the disclosure of non-confidential documents -- even non-confidential documents which their authors assumed would be kept confidential by ANPWS -- would damage relations between the Commonwealth and Queensland.
Mr Smith's affidavit dealt firstly with inter-governmental communications generally (paras.2-5 incl.) and, secondly, with the documents concerning Queensland's application to export koalas to Japan (para.6). The latter matter is not now relevant but it is desirable to set out paras.2-5:

"2. The Queensland Government is concerned about inter-Governmental communications being made public under the Freedom of Information Act as such action will impede the exchange of ideas and information in writing between agencies of the Commonwealth and the State of Queensland because the Queensland Government and its agencies will be reluctant to commit in writing anything that it does not want made public.

3. There is already a difference of views betwen the Government of Queensland and the Australian Government as to the effects of the operation of the Freedom of Information Act on Commonwealth-State communications and if private confidential communications between agencies are to be made public this will exacerbate this difference.

4. I am instructed that the said documents were intended by the Queensland Government to be communications between the Queensland agency and the Commonwealth agency which were not to be made public and that the contents of the communications have not been made public by the Queensland Government.

5. It is the view of the Queensland Government that the disclosure of such documents or any of the contents thereof would be contrary to the public interest in that it would or could reasonably be expected to cause damage to relations between the Commonwealth of Australia and the State of Queensland."

In terms, para.2 applies to all inter-governmental communications. But, under cross-examination, Mr Smith resiled from an absolute proposition. He said that in fact Queensland does consent, from time to time, to the release under the Freedom of Information Act of documents emanating from a Queensland agency. He accepted that there were some communications between a State and the Commonwealth "capable of being released because they will not be confidential or they ... will not damage Commonwealth/State relations". He said that "it depends upon the contents of each and every document". However, Mr Smith said that he had inspected each of the subject documents. He thought that they "have to be regarded as a series of documents and it was most difficult to isolate one from the other" and he went on to observe that "certain things are confidential which you cannot release".
In re-examination Mr Smith was asked directly about damage:

Q. "Now, I want to leave to one side, what your formulation of the policy in the future may be. Just forget about that, and just come back - I would just like you to tell me what damage you apprehend will occur from the release of the documents in question here?"

A. "Yes. The problem with the release of these documents, is the effect that it will have on government administration in the future. Guide-lines will be less frank and less candid in the views that they exchange, because I think, government administration demands more confidentiality."

Q. "Yes?"

A. "And, well, the partners generally will be less frank than they have been, in future, with the result and effect on public administration."

In its reasons for decision the Tribunal quoted several passages from Mr Smith's affidavit and oral evidence, and went on:

"We are persuaded by Mr Smith's evidence. In our opinion, in the light of it, a disclosure against the wishes of the applicant of the subject documents which were understood by the QNPWS to be confidential could reasonably be expected to cause damage to relations between the Commonwealth and the State of Queensland.

It must be remembered that the FOI Act is a Commonwealth enactment. The State of Queensland has no similar legislation. Therefore, the attitude which the Government of the State of Queensland takes with respect to the release of documents is different from that taken by the Government of the Commonwealth. It is necessary to have regard to such differences in attitude and to respect the view of the State of Queensland that communications with its authorities which, under the laws and practices of Queensland, would not be released to the public ought not readily be made available to the public under Commonwealth legislation. Failure to respect this view could well lead to a diminishment in the co-operation between the State of Queensland and its authorities with the Commonwealth and its authorities."

It is true that much of Mr Smith's evidence assumed -- contrary to the finding of the Tribunal -- that the documents ought properly to be regarded as confidential. But Mr Smith's objection to disclosure was not limited only to documents found to fall within para.(b); indeed, to the extent that documents were so found it would have been unnecessary to speak of damage to Commonwealth/Queensland relations. Paragraph (a) provides an independent ground of exemption.
There was evidence, which the Tribunal accepted, that when QNPWS expressed its views upon the policy to be embodied in the guidelines it expected (though without sufficient reason, as it was held) that those views would be treated as confidential. There was evidence from Mr Smith that, having regard to that circumstance, disclosure at this stage would be likely to inhibit future frankness. In evaluating that evidence the Tribunal had the advantage both of inspecting the relevant documents and of certain evidence taken from Mr Smith in confidential session, which evidence is not reproduced in the appeal papers in this Court.

In evaluating the evidence given by Mr Smith the Tribunal was also entitled to take into account the fact that the correspondence occurred between 7 October 1983 and 18 October 1984. The Bill which amended s.33A did not come into operation until 1 January 1984. Although the Queensland government must have been aware of the passage through Parliament of the amending Bill it would not be surprising if its agencies had not then adjusted to the need to stipulate quite clearly for confidentiality, where this was seen as being necessary, in communications with the Commonwealth. No doubt that need is now much better appreciated.
In its reasons the Tribunal referred to the view of Queensland "that communications with its authorities which, under the laws and practices of Queensland, would not be released to the public ought not readily be made available to the public under Commonwealth legislation". It was submitted that this passage indicated an error of law, that the Tribunal had approached the matter upon the basis that the Queensland government had a right to veto the disclosure of any communications between itself and the Commonwealth. Of course, any such approach would be erroneous. The parameters of the exceptions to disclosure are set out in the Act. Whether or not a particular State agrees with those parameters is irrelevant; each State must take the Act as it is. It clearly would not be enough for a State to indicate a disagreement with the policy of the Act and claim, therefore, that a disclosure of particular documents could reasonably be expected to cause damage to relations between the Commonwealth and itself. There must be something in the documents themselves or in the circumstances under which they came into existence potentially to damage relations. But I do not think that the Tribunal was saying otherwise. I think that the reference to the attitude of the Queensland government was made only to explain why it might more readily be accepted that the disclosure of documents having the characteristics and genesis of the subject documents might damage relations between the Commonwealth and the government of that State.
The balance of public interest
I have already commented upon the important role of
sub-s.(5) of s.33A. It was submitted to the Tribunal that, even if the documents or any of them fell within sub-s.(1), the Tribunal ought to find that, upon balance, the disclosure of the documents would be in the public interest. In support of that submission reference was made to evidence given by a veterinary surgeon relating to the limitations in current veterinary knowledge regarding koala diseases. This evidence was not challenged but, after perusing the subject documents, the Tribunal expressed the view that there was little in those documents to aid scientists in their research. This finding is not challenged. The Tribunal went on:

"Nor is there any matter in the documents that ought otherwise to be disclosed in the public interest. The documents do not show other than that the two Services were proceeding to fulfil their tasks in the best interests of Australia and of koalas.

There is thus no matter favouring disclosure in the public interest other than the public interest referred to in s.3 of the FOI Act. In our opinion, this aspect of the matter is outweighed by the damage to Commonwealth/State relations which may result from the disclosure of these documents. If the release of documents could reasonably be expected to cause damage to Commonwealth/State relations, there would need to be some exceptional countervailing reason to justify disclosure in the public interest. There is no such reason in the present case."

Counsel for the appellant submitted that the approach disclosed in the second of these two paragraphs is erroneous. In particular he criticised the use of the word "exceptional" in the penultimate sentence, contending that sub-s.(5) requires no more than a balance in favour of disclosure. So it does, but I do not read the quoted passage as indicating any other view. I think that the Tribunal used the word "exceptional" simply to indicate that sub-s.(1) establishes a prima facie exemption for documents which fall within either of the two categories it specifies but that, as the opening words of sub-s.(1) itself indicate, this exemption is subject to the result of the balanced judgment to be made under sub-s.(5). Using the phrase in this sense, it is not inaccurate to say that sub-s.(5) requires an "exceptional countervailing reason". But this should not be taken to imply that only in a rare or exceptional case will sub-s.(5) prevail. Every case must depend upon its merits and, as I have indicated, there may be cases where s.3 provides a sufficient countervailing factor. I do not think that the Tribunal postulated anything to the contrary. As its reference to the section makes plain, the Tribunal did not overlook s.3. Of course, the assessment under sub-s.(5) of the balance of public interest which was made in this case was a matter for the Tribunal alone.
Orders
I am of the opinion, for the reasons set out above, that the applicant has failed to establish any error of law by the Tribunal. It follows that the appeal ought to be dismissed. However, this is a case in which, in my view, the Court ought to depart from the customary course of ordering the losing party to pay the opposing party's costs. The State of Queensland was an intervener before the Tribunal and it ought not to be assumed that an intervener will have its costs in this Court, even if successful: see Harrigan v Department of Health (Full Court, 13 November 1986, not reported). In the present case the appeal was brought by a public interest group, presenting to the Court arguments of substance upon a section of the Freedom of Information Act which had not previously been considered by the Court. The successful party is a State government, an entity having particular interest in the proper interpretation and application of s.33A. The second respondent, ANPWS, took no active part in the appeal.
In addition to these matters I note that the applicant was successful in respect of the various preliminary matters: competence and security for costs. Those preliminaries occupied a considerable part in the hearing time, extending the total hearing from one day to two days. Under the circumstances it is appropriate to make no order for costs in relation to any aspect of the proceedings.

JUDGE3

This matter came before a Full Court pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 under which "a party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding." The Tribunal, constituted by Davies J., President, and Dr Renouf, Senior Member, had upheld a claim (brought before it by virtue of ss.26A and 58F of the Freedom of Information Act 1982) that certain documents were exempt documents pursuant to s.33A(1)(a) of that Act.

At the hearing, preliminary questions arose concerning the status of the appellant, the appeal having originally been brought simply in the name "Australians for Animals", and as to whether the respondent was entitled to an order for security for costs. Upon those questions I am in agreement with the reasons of Wilcox J., except that I would reserve for the occasion when it arises the submission that s.27(2) of the Administrative Appeals Tribunal Act raises an implication that in s.30 (1)(a) "person" includes an unincorporated association - as at present advised, I am unpersuaded that the Act contemplates an application by such an association, as distinct from an application by the members or their representative; the very great difficulties inherent in the suggested construction may be illustrated by reference to the judgment of Hutley J.A. in Maritime Services Board of New South Wales v. Australian Chamber of Shipping (1977) 1 NSWLR 648.
The circumstances which have given rise to the controversy the subject of the appeal may be briefly stated. The Government of the State of Queensland was concerned to foster its friendly relations with persons and organisations in Japan by donating to certain Japanese zoos a nunmber of Queensland koalas. Any export of koalas from Australia having previously been subject to a blanket prohibition, and being of course a matter within the competence of the Commonwealth, it was thought desirable for the Commonwealth to establish an appropriate set of conditions governing both the proposed export and also any similar ventures. The evidence does not, perhaps, make it completely clear whether coincidentally moves to develop a basis to permit koalas to be exported were already under way in the federal sphere. At all events, the Australian National Parks and Wildlife Service (ANPWS), a Commonwealth agency, entered into correspondence with the Queensland National Parks and Wildlife Service (QNPWS), and with agencies in other States and various zoos, in order to determine an appropriate policy and set of conditions intended to be applicable, in respect not only of the export of Queensland koalas, but as well (subject to some variations) of koalas generally. (It would appear there are quite significant differences between the koalas native to different States, and of course there are some States which do not have koalas at all.)
Although at one time questions arose concerning the application of the Freedom of Information Act to other documents, such as the application for an export permit, the only documents considered in the appeal were documents which passed between the Queensland and Commonwealth agencies in connection with the negotiation and formulation of conditions appropriate to govern the export of koalas. The State of Queensland claimed that these dealt with matters of policy formulation which were, by practice and convention not ordinarily made public (see Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626; Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112 at 121-2; Re Maher and Attorney-General's Department (1985) 7 ALD 731), and that it and its agency the QNPWS understood that the communications were confidential. Reliance was placed on both paragraphs of subsection (1) of s.33A which reads as follows:-

"(1) Subject to subsection (5), a document is an exempt document if disclosure of the document under this Act-

(a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or

(b) would divulge information or matter communicated in confidence by or on behalf of the Government or a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Government of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth."

The Tribunal accepted that "communications which take place in the course of the development of policy are recognized as being of a particularly sensitive character", and described the question whether the documents were exempt under s.33A(1)(b) as a "difficult one", but ultimately concluded "that the nature of the bodies between whom the communications passed and the nature and subject matter of the communications did not give rise to an inference as to confidentiality that ought to have been understood by both the ANPWS and the QNPWS." On the basis, therefore, that it was essential to the applicaion of the exemption that confidentiality be understood by both parties to be required, the Tribunal found against Queensland under paragraph (b). It is unnecessary to consider whether this finding was arrived at upon a correct application of principles of law, since there has been no appeal from it. But it may be remarked that the finding appears to have been significantly influenced by the fact that the ANPWS had communicated in similar terms with other State bodies and with zoos. Whether and to what extent the QNPWS knew of this was not shown, but it was thought to militate against any implication that the particular correspondence, though concerned with policy, was of a confidential nature. At the time the matter was heard, Attorney-General's Department v. Cockcroft (1986) 64 ALR 97 had not been decided, and it is not cited in the reasons of the Tribunal. (See now also Boots v. Department of Immigration and Ethnic Affairs (Beaumont J., unreported, 16th December 1986) at p 3).
A single issue is crucial to the determination of the present appeal. It is whether there was material before the Tribunal upon which it was open to it in law to conclude that s.33A(1)(a) applied to the documents. The Tribunal found:-

"(W)e accept the evidence given on behalf of the applicant

that the QNPWS entertained the communications with respect to policy with the understanding on its part hat the communications were confidential. ...In our opinion, in the light of (the evidence of a director of the Inter-Governmental Relations Division of the Premier's Department of the State of Queensland, a Mr Smith), a disclosure against the wishes of the applicant of the subject documents which were understood by the QNPWS to be confidential could reasonably be expected to cause damage to relations between the Commonwealth and the State of Queensland."

I have described this issue as crucial because other matters raised at the hearing were either not essential to the decision actually arrived at by the Tribunal, or were mere questions of fact for its determination alone. But it should be pointed out at the outset that it is at least doubtful whether the draftsman of the Notice of Appeal, which is lengthy and detailed and raises many matters not argued, imagined that any point of law arose that there was a lack of evidence to ground the finding made. The only "no evidence" point raised was that there was no evidence from which an inference could reasonably be drawn that the Commonwealth agency ANPWS considered the cisclosure of the documents wuld reasonably be expected to cause damage to relations between the Commonwealth and itself except where the communications were confidential. This ground does not make sense, and it may be assumed that it was intended to refer to the QNPWS, but even so the lack of evidence alleged goes to the question whether the QNPWS considered the disclosure could have the postulated effect on relations with itself (not with Queensland) - a doubly immaterial matter. The ground which goes to the vital finding is ground 3, which reads as follows:-

"(3) The Tribunal erred in holding that a disclosure against the wishes of the First Respondent of documents which were understood by an agency of the First Respondent to be confidential could reasonably be expected to cause damage to relations between the Commonwealth and the First Respondent in cicumstances in which it had found other documents understood by the agency of the First Respondent to be confidential not to have the prescribed effect and in circumstances in which the Commonwealth did not believe disclosure would have the prescribed effect."

This is clearly not a "no evidence" point. Furthermore, the appeal papers were allowed to be setled without the inclusion of all the evidence, which argument of a "no evidence" point clearly ought to have required.
The notice of Appeal is important because it is clear that at the hearing a great deal of attention was directed to the question of potential damage to Commonwealth-State relations. The basis of the assertion now made there was no evidence to justify the Tribunal's finding is not that there was no evidence dealing with the topic, but that it was all directed (it is claimed) to a consideration of the question upon the narrow basis that the correspondence involved information properly to be regarded as communicated in confidence by or on behalf of the government of the State or an authority of the State. Of course, if that were correct, the whole question was explored unnecessarily since it was explored on the basis of a factual situation which would in itself (under s.33A(1)(b)) have conferred a complete exemption. But I think he Notice of Appeal casts light on whether the evidence was in fact understood to be so confined. In my view, an appellate court ought to scrutinize the whole of the evidence with considerable care before concluding that the Tribunal which heard the witnesses, and perhaps even the appellant party, misunderstood the thrust of the evidence, were wrong in accepting apparently general propositions as general, and should have regarded a witness as looking at the problem only through the distorting medium of a particular glass.
Before examining the evidence in further detail, it is necessary to make some reference to the proper construction of the Freedom of Information Act. It was suggested in argument that the scope of paragraph (a) of s.33A(1) could be read down because of the presence of the alternative basis of exemption set out in paragraph (b). The contention was that paragraph (a) must be talking about documents which could cause damage to relations between the Commonwealth and a State by reason of other matters connected with those documents than a claim to confidentiality, whether or not the confidentiality alleged measured up to the requirements of the ground set out in paragraph (b). But it was pointed out that s.32 makes it quite clear both that the various grounds of exemption are to be construed independently of each other, in the sense that they are not to have the effect of limiting each other, and also that there is no presumption against overlapping between grounds. As was said in the joint judgment of Fisher, Sheppard and Burchett JJ. in Austin v. Deputy Secretary, Attorney-General's Department (1986) 67 ALR 585 at 589:-

"The unqualified application each exemption is intended to have is confirmed by s.32 which excludes any restrictive implication from the terms of any other exemption.

Each exemption is to be given the meaning its own terms fairly convey."

Yet it was submitted that s.3 somehow has the effect of limiting the exemptions provided by the Act. It was pointed out that subsection (2) of that section expresses an intention "that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as o facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information." However, the relevant object in subsection (1) is that expressed in paragraph (b) of "creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities." The general right is expressed as limited by exemptions which the Parliament says are necessary for the protecion of essential public interests as well as for other reasons. When that general object is translated by the Act into a specific right in s.11, the right is expressed to be subject to the Act, and to relate to documents other than exempt documents. Then the sections defining exemptions are introduced by s.32, to which I have already referred, a provision consistent only with Parliament's intention that the exemptions shall be given their full effect.
All this has been adverted to on a number of occasions by Full Courts of this Court. I have already referred to Austin's case. In Waterford v. Department of the Treasury (1985) 5 FCR 76 at 81, another judgment of a Full Court said of the exemption contained in s.42(1):-

"We see no reason derived from a consideration of the other provisions of the Act to limit the exemption..."

In The News Corporation Ltd v. National Companies and Securities Commission (1984) 5 CR 88 at 105, Woodward J. said of the Freedom of Information Act that it is "designed to advance the principle of open government, in the public interest, subject to a number of express exceptions which are equally in the public interest." In the earlier case The News Corporation Ltd v. National Companies and Securities Commission (1984) 1 FCR 64 at 66, Bowen C.J. and Fisher J. said:-

"In recognition of the delicate balance between the public's interest in knowing and in expressing its opinion and the need in some cases to protect confidentiality and privacy, the Act provides a wide range of exemptions (see Commonwealth v. John Fairfax & Sons Ltd (1980) 55 ALJR 45 at p 49 per Mason J.)....

It has been suggested that the form of s.3 is such that the court when considering rights of access should lean towards a wide interpretation of the provisions of the Act but when considering exemptions should lean towards a narrow interpretation. ...

In construing our Act we do not favour the adoption of a leaning position. The right of access and the exemptions are designed to give a correct balance of the competing public interests involved. Each is to be interpreted according to the words used, bearing in mind the stated object of the Act."

(Commonwealth v. John Fairfax & Sons Ltd is now reported also at 147 CLR 39).

In my view it is too late to regard s.3 as introducing any bias into the construction of the exemptions in the Freedom of Information Act. They are as much a part of the Act as s.11, which confers the right to access expressly subject to them and as a right relating to documents other than those which are exempt. With regard to the particular ground presently in question, in my opinion the Tribunal showed a proper sensitivity to the delicate balance which it maintains between the public interest in access to information and the requirements of inter-governmental relations within the Australian Federation. (Concerning the complexity of the problems engendered by those relations, reference may be made to Prof. K. Wiltshire: Planning and Federalism, Australian and Canadian Experience (1986), and particularly chapter 6. It has been said that "the federal system itself ... depends for its viability on constructive relations among governments:" Prof. Roscoe Martin in Where Governments Meet: Emerging Patterns of Intergovernmental Relations (1967), Institute of Governmental Studies, University of California, Berkeley, at p 4.)
I do not think the refeence in s.3(2) to the exercise of discretions conferred by the Act is relevant to the present case. No discretion is in question. As this Court pointed out in Austin's case (supra at 588):-

"If the documents were rightly held to be wholly exempt documents ... that is an end of the matter, since the Tribunal has no discretion to grant access to wholly exempt documents: s.58(2)."

When s.3(2) speaks of a discretion, it refers to provisions such as ss.20, 21, 24 and 30 which do relate to discretions conferred by the Act.

Reference has also been made to subsection 5 of s.33A which provides:-

"This section does not apply to a document in respect of matter in the document the disclosure of hich under this Act would, on balance, be in the public interest."

That subsection does not confer a discretion upon anyone. It requires a determination of a matter of fact, albeit a matter upon which different minds might well, in a particular case, reach different conclusions. Where either branch of subsection (1) is found to apply, what subsection (5) does is raise the question whether nevertheless it can be affirmed of matter in the document that its disclosure under the Act would, on balance, be in the public interest. In reaching that determination, it is clear that the Tribunal would have regard to the object of the Act expressed in s.3, but it would also have regard to the provision by Parliament of the exemption. It might be expected in practice to look for special features of the instant case which might indicate where, in that particular case, the balance lay. Parliament having provided an exemption, and an escape route from that exemption, I do not think it is very profitable to put a gloss upon the terms which Parliament has itself laid down as a test to be applied - it is for the decision maker to decide whether he can affirm on balance that disclosure would be in the public interest.

Section 33A was inserted by way of amendment to the Freedom of Information Act by Act No. 81 of 1983. It came into operation on 1st January 1984. The form of the section as it now stands may be compared with the terms of s.33 as it previously stood, which then dealt with the subject of exemption upon grounds similar to those contained in s.33A. If a comparison showed that changes were only made in the direction of, on the one hand, restricting the exemption or, on the other hand, expanding it, some inerence might perhaps be drawn concerning the intention of the legislature - though inferences of that kind are often dangerous, and I think the true task of the Court would remain to construe the provision as finally settled by Parliament. However, comparison does not reveal amendments only in one direction. Certainly, the amendments gave the Tribunal a limited power of review of the finding provided for by subsection (5), thus in certain cases making removal of the exemption possible; but equaly the previously bare exemption, where diclosure would divulge any information or matter communicated in confidence by or on behalf of the Government of a State to the Government of the Commonwealth or a person receiving the communication on behalf of that government, was expanded to include such information or matter so communicated by or on behalf of an authority of a State or to an authority of the Commonwealth, or to a person receiving the communication on behalf of an authority of the Commonwealth. Even more significantly, ss.26A and 58F were added to the Act, giving teeth to the exemptions relied on by the State of Queensland in the present case. To my mind, the amendments strikingly illustrate the careful policy of balancing the competing interests involved which is a hallmark of the Act.
A feature of the drafting of para. (a) of s.33A(1) is that it does not require a finding that disclosure would cause damage to relations between the Commonwealth and a State. It provides the alternative: "or could reasonably be expected to cause (such) damage". It is now established that this does not require a probability, though a possibility which fails to reach the level of probability must be sufficiently tangible to anwer to the notion of a reasonable capacity to be expected. In Attorney-General's Department v. Cockcroft (supra, at 106) Bowen C.J. and Beaumont J. said of the words "could reasonably be expected to prejudice the future supply of information" contained in s.43(1)(c)(ii) of the Act that they:

"require a judgment to be made by the decision-maker as to hether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act."

See also Crown Bedding Co. Ltd. v. Inland Revenue Commissioners (1946) 1 All ER 452 where Lord Greene M.R. at 457 described the expression "which might have been expected" as giving to decision makers "a wide area within which they, as judges of fact and of matters of degree, are entitled to form a conclusive opinion".

In Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 382 Deane J. discussed the meaning of the word "likely" in s.45D(1) of the Trade Practices Act 1974, where he concluded the word referred to "a real chance or possibility". He said:

"Whether or not such conduct is likely (in that sense) to have that effect is a question to be determined by reference to well established standards of what could reasonably be expected to be the consequence of the relevant conduct in the circumstances."

I think the statute employs the expression "could reasonably be expected" in a sense corresponding to that which this passage conveys, but when all analysis has been exhausted the ultimate requirement of the statute is to apply its words directly to the problem thrown up by the circumstances of the case: The News Corporation Ltd v. National Companies and Securities Commission (1984) 5 FCR 88 at 95, per Fox J.; Cockcroft's case, ubi supra.

In the present case, I am unable to accept the view that there is any doubt that Queensland relied, and was taken by the other parties and the Tribunal to rely, on para. (a) of s.33A(1) quite independently of any question whether the matter in the documents was properly to be described for the purpose of para. (b) as "communicated in confidence". Soon after access was sought by the appellant to the documents in question, the Principal Executive Officer of the ANPWS, when notifying the initial refusal of access, wrote:

"In this regard the Queensland National Parks and Wildlife Service has been contacted and that organisation has requested that access be denied on the grounds that disclosure would, or could reasonably be expected to, cause damage to relations between the Commonwealth and Queensland."

There was at that stage no reference to the question whether the documents were confidential. On internal review of that decision by the Assistant Director of ANPWS, a telex from the QNPWS was taken into account, and access was again denied on grounds stated as follows:

"The consideration was the release of the documents would, or could reasonably be expected to, cause damage to relations between the Commonwealth and Queensland in that disclosure would substantially impair good working relationships between the Commonwealth and Queensland by prejudicing the future flow of information required for programs

(sic)."

When, shortly afterwards, the Acting Director of the ANPWS reversed this decision, the State of Queensland lodged an application for review by the Administrative Appeals Tribunal which referred to s.33A of the Act, not being limited to para. 33A(1)(b), and set out as the reasons for the application:

"(1) Access to such documents are (sic) inconsistent with and impair (sic) the confidential relationship between the State of Queensland and a Department of the Commonwealth.

(2) The State of Queensland is concerned to maintain the confidentiality of confidential correspondence between the State of Queensland or its officers, servants or agents and offices of the Commonwealth."

After two previous decisions in favour of Queensland had been based upon s.33A(1)(a) only, the first reason seems naturally to repeat this ground, while the second adds the alternative of para. (b). Although the first reason is loosely and ungrammatically expressed, I think it is clear that what it is intended to propound is that access to the documents would be inconsistent with and would impair the confidential relationship between the State of Queensland and the Commonwealth. To speak about such a relationship is to embark upon much broader issues than the narrow question whether particular documents were communicated under the protection of the legal principles to which the appellant would seek to limit the respondent State. But if there be any doubt as to the scope of the first ground taken in the application, the statement of the exemption relied upon furnished in response to a direction fo the President of the Tribunal is sufficient to dissipate it. That statement is appended to a schedule of the documents the subject of the application. It reads:

"The above documents were a series of written communications between an agency of the Commonwealth and an agency of the State of Queensland which affected the relationship between the Commonwealth and the State of Queensland. It was necessary that complete frankness and candour be displayed in all dealings. Should these documents be disclosed it would be difficult to conduct any future dealings between the Departments concerned in future communications with frankness and candour."

At the hearing before the Tribunal, there was lengthy discussion concerning the basis of the claim for exemption and the affidavits which were read in support of it. In the course of that discussion Mr Preston, who appeared for the appellant, clearly recognised that the State of Queensland was relying on two independent grounds, for he argued:-

"If the Tribunal held that the documents either may damage Commonwealth State relations or they were produced in confidence ... these documents may nevertheless be released (under subs. (5))."

Senior counsel for the State of Queensland asserted that:

"(T)he senders of the documents (i.e. the QNPWS) believe that they were engaged in inter-governmental discussions."

He then said that the affidavit (of Mr Smith) he was seeking to read was propounding the proposition:

"If that is the situation, the very fact that they believe it - whether it is right or not as held by the Tribunal - damage will be done because the flow of information presumably will dry up. This is the sort of damage that will be done and - well, perhaps it may be that the only communications will have to take place at the highest level, which obviously would be inappropriate and inefficient. I think that is what he is trying to say in the affidavit, and we would submit that it is all quite proper."

He also said:

"Even if the confidentiality was incorrect because there was that belief in the Queensland Government and its agencies, well, then there would be damage done."

It was following these submissions from Senior Counsel for the State of Queensland that the affidavit of Mr Smith was admitted. (It was not in some respects in the form in which evidence on affidavit is normally tendered in a court, but the Administrative Appeals Tribunal is not bound by the rules of evidence: s.33(1)(c) of the Administrative Appeals Tribunal Act.) Mr Smith deposed to the fact that he was the Director of the Inter-Governmental Relations Division of the Premier's Department of the State of Queensland and that he was duly authorised to make his affidavit on behalf of the Premier's Department. He stated:

"The Queensland Government is concerned about inter-governmental communications being made public under the Freedom of Information Act as such action will impede the exchange of ideas and information in writing between agencies of the Commonwealth and the State of Queensland because the Queensland Government and its agencies will be reluctant to commit in writing anything that it does not want made public."

This paragraph is clearly not tied to any proposition that s.33A (1)(b) would apply to the documents. It is true that in a separate paragraph, para. 3. of the affidavit, Mr Smith does appeal to the nature of confidential communications in aid of his view of the effect of disclosure, but he is there making a different point. In paras. 4 and 5 he again takes a broad approach:

"4. I am instructed that the said documents were intended by the Queensland Government to be communications between the Queensland agency and the Commonwealth agency which were not to be made public and that the contents of the communications have not been made public by the Queensland Government.

5. It is the view of the Queensland Government that the disclosure of such documents or any of the contents thereof would be contrary to the public interest in that it would or could reasonably be expected to cause damage to relations between the Commonwealth of Australia and the State of Queensland."

The reference to the intention, the unilateral intention of the Queensland Government cannot imply that the proposition in these paragraphs is put upon the limited basis that the correspondence was regarded as confidential by both parties to it. It would be quite a different proposition. In paragraph 7 he sets out reasons for "the view of the Queensland Government that the disclosure of such documents would cause damage". None of the five reasons he gives is based on the correspondence having been in fact confidential. Each of them asserts that as a matter of policy the communications should be kept confidential. In summary they refer to the need for mutual trust, candour, discussion of policy without fear of misrepresentation, and the inhibition upon prompt and responsive communication which would result from any fear of exposure to unfavourable publicity. It will be recognized that these are considerations of the kind discussed in Re Howard, Re Maher and Re Murtagh and in the High Court in Sankey v. Whitlam (1978) 142 CLR 1 at 39-40, 63 and 97-99.
Mr Smith was cross-examined. Having regard to the discussion prior to his being called for cross-examination, and the aspects of the affidavit to which I have drawn attention, if the appellant was to contend for a restricted understanding of the affidavit, it seems to me it was incumbent upon the appellant to cross-examine accordingly. On the contrary, the cross-examiner conceded the duality of the argument the affidavit set out to sustain, for early in the cross-examination he put the following questions and received, without challenging them, the answers:

"Q: In your affidavit you say that in respect of each and every one of those documents, they would cause damage to Commonwealth/State relations or that they were confidential. Is that true?

A: Yes, as part of the series of documents.

Q: But in respect of each and every document, you are saying in your affidavit that they will cause damage, or that they were produced in confidence?

A: Yes."

There was then a long series of questions based on the same dichotomy.
Later in his evidence, Mr Smith referred to an effect of the Freedom of Information Act as having been that at a recent important Ministerial Council it had been resolved not to make a transcript of the proceedings. He made it clear that no such measures had as yet been taken in relation to the dealings of the QNPWS with the Commonwealth, but he said that it was within his area of responsibility to consider the matter, and that some action might be taken. Mr Preston, cross-examining, referred to Mr Smith as "saying that this will impede the exchange of ideas and information, that this will exacerbate the difference between Commonwealth/State relations, that it will damage Commonwealth/State relations", to which Mr Smith responded: "Well, it will do these things as I have said, and the question to be determined is what action we should take in future in relation to them." In answer to a specific question, Mr Smith said damage would be caused between the Queensland Government and the Australian Government if the Japanese Government were offended by the release of the documents. He reiterated that "if inter-govoernmental correspondence cannot be conducted on the basis of confidentiality, then the system falls down."
There was a lengthy series of questions requesting Mr Smith to specify what the Queensland Government's response would be if the documents were released. But not once was it put that his evidence was predicated upon an assumption that the documents were properly to be regarded as confidential within the meaning of s.33A(1)(b). In response to questions which were asked, Mr Smith said:

"As I explained to you before ... because of the fear of the releae of documents already action has been taken in a number of areas and I cited one case to you where a ministerial council is not making a transcript of proceedings."

In re-examination, Mr Smith was asked to restate what damage he apprehended would occur from the release of the documents in question, and replied:

"The problem with the relase of these documents is the effect that it will have on government administration in the future. Guidelines will be less frank and less candid in the views that they exchange, because I think, government administration demands more confidentiality ... and, well, the partners generally will be less frank than they have been, in future, with resultant effect on public administration." (I have corrected an obvious typing error.)

This is plainly a plea for more confidentiality than would be displayed by a release of the documents, but, with great respect to those who have understood him otherwise, I think it would be a complete distortion of what Mr Smith was saying here, to see it as based upon an assumption that the documents already fell within the confidentiality exemption.

In answer to some questions asked by the President at the conclusion of his evidence, Mr Smith made it clear that one thing he was asserting (and of course he was giving evidence in support of both the grounds relied upon) was that there was a long-standing practice in government administration in Australia under which it was accepted that inter-governmental communications on policy matters, and matters bearing on government administration, are treated as confidential and not released by one government without the consent of the other government. He did not suggest this understanding was expressed in any handbook, but said:

"Certainly I think if you went through government files over the years you would certainly find that principle enunciated time and again."

Although evidence was given by a very senior officer of the ANPWS, with experience also as an officer in similar organisations in two States, he did not despute the existence of this practice, except that he said "since the Freedom of Information Act came into being" the ANPWS had adopted a different practice. He did not suggest it had notified the State offices with which it dealt of the change in its practice, and I cannot think it realistic to picture the Director of QNPWS, at the date of the correspondence here in question as alert to such a change on the part of the ANPWS. It was in this context that Mr Smith made it clear he considered "the development of conditions for the export of koalas was the development of a policy with respect to the export of koalas", and that accordingly "the Queensland Government would have regarded its views on that policy as confidential." He was specifically referred at this stage of his evidence to the fact that apparently the Commonwealth did not regard one of the relevant documents as confidential. It is plain the practice of which Mr Smith gave evidence did not depend on documents being first regarded by both parties as confidential within s.33A(1)(b), but was proffered as a reason why it was said they should be regarded as confidential, and as a justification for Queensland's so regarding them, for its part.

In the final answer of his evidence, Mr Smith referred to the possible effect of release of some of the documents upon Japanese zoos, as a matter clearly going to the concern of the Queensland Government to foster relations with Japanese authorities, and not at all to the question whether the documents had been accepted as communicated in confidence by both the Commonwealth and the State of Queensland.
In addition to the evidence of Mr Smith, the Tribunal had evidence from Dr Lavery, the Assistant Director (Projects) of the QNPWS, who was the officer of the QNPWS responsible for arranging the official gift of koalas to a Japanese zoo, out of which the documents in question arose. He specifically swore in his affidavit:

"These negotiations and communications were always considered by the Queensland National Parks and Wildlife Service as being confidential between the Queensland Service and the Australian National Parks and Wildlife Service."

He also swore:

"As a result of the decision by the Australian National Parks and Wildlife Service to release the documents my Service and myself are concerned about the release of any future negotiations and communications in relation to koalas.

If these documents were released we would be reluctant to enter into written negotiations with the Commonwealth Agency in the future in view of the possibility of release by the Commonwealth Agency under the Act."

It was suggested in the argument upon the appeal that the Tribunal did not refer to the evidence of Dr Lavery as supporting the decision. Of course, even if that were so it would not necessarily follow that a submission that there was no evidence to justify the Tribunal's finding should be upheld. There was nothing incredible about Dr Lavery's evidence, and nothing said in cross-examination rendered dubious his assertion about the effect upon the agency of which he was an Assistant Director, and upon any future negotiations with the Commonwealth, if the documents were released. Indeed, his evidence in that respect received some support, in cross-examination, and in an answer to a member of the Tribunal, from the senior officer mentioned previously, a Deputy Director of the ANPWS, who conceded that Commonwealth-State relations "may well be" affected by disclosure of the documents. There was some attack in cross-examination upon Dr Lavery's assertion that the QNPWS considered the negotiations and communications to be confidential. But this aspect of his evidence was expressly adverted to by the Tribunal, and accepted by it, notwithstanding that Dr Lavery's name was not mentioned. For the Tribunal's reasons include the following:-

"(W)e accept the evidence given on behalf of the applicant that the QNPWS entertained the communications with respect to policy with the understanding on its part that the communications were confidential."

The evidence directly answering this description was the evidence of Dr Lavery.

There is a further problem about the appellant's submission that there was no evidence to justify the Tribunal's finding. All the evidence is not before this Court. The Tribunal heard confidential evidence which has not been reproduced in the appeal book. It also had before it the documents in question. It seems to me that clearly it was entitled to tae the nature of the documents and their contents into account in deciding whether or not it accepted the proposition that their disclosure could reasonably be expected to cause damage to relations between the Commonwealth and the State of Queensland. Indeed, the discussion that took place more than once during the hearing as to whether the claim made by the State of Queensland applied to particular documents, having regard to their contents, which led to some documents being voluntarily excluded from the application, makes it perfectly plain that the Tribunal did utilize the opportunity to take these matters into account. The appellant has not suggested it was not entitled to do so. I do not think it can be asserted, whatever the nature of particular documents or the matters disclosed by them, that the Tribunal was bound in law to wait until led by the hand, as it were, by the evidence of some administrator, before it could venture to conclude that disclosure could reasonably be expected to cause relevant damage. The Tribunal was entitled to apply ordinary processes of human reasoning, and its knowledge of administration, directly to the documents and the circumstances proved.
What the Tribunal said was:-

"We are persuaded by Mr Smith's evidence. In our opinion, in the light of it, a disclosure against the wishes of the applicant of the subject documents which were understood by the QNPWS to be confidential could reasonably be expected to cause damage to relations between the Commonwealth and the State of Queensland."

In the light of Mr Smith's evidence, it reached a conclusion about the subject documents; that expression of its finding does not tie it to one aspect only of Mr Smith's evidence.

In my view the decision of the Tribunal was open to it. It would not be in every case involving the development of a policy between agencies of the Commonwealth and a State that such a conclusion would be arrived at. Nor would the conclusion, if reached, necessarily survive the application of subsection (5). In some cases, the Tribunal might be influenced by evidence that the likely impact of the Freedom of Information Act was appreciated, and yet communications were not expressed to be confidential. But in this case the Tribunal has accepted Dr Lavery's evidence of the understanding of the QNPWS and Mr Smith's evidence of the attitude of the State of Queensland towards the circumstances. That amply justified the Tribunal in finding that the officers of the QNPWS would be likely in future to react to the disclosure of their candid advice to the ANPWS in the same way in which, as long ago as 1865, Lord Palmerston as British Prime Minister said the law officers would react to disclosure of their advice to the Government, when he said:-

"The Law Officers would be more cautious in expressing an opinion if they knew it was to be laid before Parliament and the public" (See Professor J.L.J. Edwards, The Attorney-General Politics and the Public Interest (1984) p. 225).

It need harly be added that acceptance of evidence of the State's attitude to communications between it and the Commonwealth, and recognition that its reaction to disclosure of certain information would be of a kind inimical to cooperation between it and the Commonwealth, did not involve conferring on the State any power of veto over the operation of the Freedom of Information Act. On the contrary, it is the Freedom of Information Act which, by s.33A(1)(a), gave the evidence its effect But the Act makes that effect subject to the over-riding test of public interest provided by subsection (5):-

"This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest."

In the present case, the question posed by subsection (5) has been answered in favour of the State of Queensland. The Tribunal, having considered the contents of the documents in question, could not see any public interest in their disclosure beyond the broad public interest expressed in s.3 of the Act. Counsel for the appellant relied on evidence from a Deputy Director of the ANPWS that he had gained "in a general sense" understanding of the types of information useful to "technical people", and that "a lot of (the material in the relevant documents) may well be of assistance and certainly of interest to people (involved with the health and welfare of Australian native fauna)." But this evidence was tested in cross-examination in confidential session, of which we know nothing except that Counsel for the State of Queensland announced he would put to the witness the contents of the documents in detail in order to "show him that that (answer) is nonsense". The Tribunal which heard the witness cross- examined, and saw the documents for itself, may have agreed with Counsel. No basis has been shown for disturbing the conclusion to which the Tribunal came.
For these reasons, I am of opinion that the appeal should be dismissed. However, as it raised questions of principle the decision of which was important for the State and the Commonwealth, and as the particular problem of categorisation of the correspondence was significantly contributed to by the failure of the QNPWS to indicate expressly at the time its attitude to disclosure of the documents, I think no order should be made as to the costs of the appeal. I take into account also that the respondent State of Queensland raised issues in respect of the status of the appellant and security for costs upon which it failed.

[1987] FCA 223

13 May 1987