Australian Conservation Foundation Incorporated v Secretary, Department of Climate Change, Energy, the Environment and Water

In the Federal Court of Australia, the Australian Conservation Foundation Incorporated (ACF) appealed against the decision of the Administrative Appeals Tribunal (AAT) which upheld the decision of the Secretary of the Department of Climate Change, Energy, the Environment and Water (the Department) to refuse access to certain documents under the Freedom of Information Act 1982 (Cth) (FOI Act). The central dispute was whether the AAT had correctly applied the law in determining that the documents were exempt or conditionally exempt from disclosure. The ACF argued that the AAT had misapplied the statutory tests, leading to an erroneous decision in favour of the Department.

The legal issues before the Court included whether the AAT had properly considered the elements required to establish that disclosure of certain documents would found an action for breach of confidence under s 45(1) of the FOI Act. Additionally, the Court had to examine whether the AAT correctly assessed whether the documents were conditionally exempt under s 47E(d) of the FOI Act, which pertains to documents that could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the Department's operations. The ACF also contended that the AAT had misconstrued the phrase “could reasonably be expected to” in s 47E of the FOI Act and had misapplied the statutory “public interest” test in s 11A(5) of the FOI Act.

The Court found that the AAT had indeed made errors in its reasoning and application of the law. Specifically, the Court determined that the AAT had not sufficiently considered the necessary elements for establishing a breach of confidence, had misconstrued the statutory phrase in question, and had misapplied the public interest test. Consequently, the Court allowed the appeal and set aside the AAT’s decision, remitting the matter back to the AAT for re-determination. The Court also noted that while costs usually follow the event, it would grant the Department an opportunity to argue against an order for costs being paid by the Department to the ACF, before making a final determination on the costs.

In light of the findings, the Court made orders setting aside the AAT’s decision, remitting the matter to the AAT for re-determination, and providing a procedure for the determination of costs between the parties. The Secretary was required to file and serve a submission within seven days if they wished to contend against an order for costs being paid by the Secretary to the ACF, with the ACF then having an opportunity to respond. The Court reserved the final determination of the costs issue pending these submissions.