Department of Premier and Cabinet v Birrell

[1989] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M8 of 1989

B e t w e e n -

DEPARTMENT OF PREMIER AND

CABINET

Applicant

and

MARK BIRRELL

Respondent

Application for special

leave to appeal

BRENNAN J

DAWSON J McHUGH J

Birrell

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 JUNE 1989, AT 10.52 AM

Copyright in the High Court of Australia

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MR H.C. BERKELEY, QC, Solicitor-General for Victoria: If the

Court pleases, in this application I appear with

my learned friend,MR M.J. GRENNAN, for the

applicant. (instructed by the Victorian Government

Solicitor)

MR R.K.R. ALSTON: If the Court pleases, I appear with my

learned friend, MR T.P. TOBIN, for the respondent.

(instructed by McKean & Park)

MR BERKELEY:  Your Honours, this matter started off as an

application by the respondent under the FREEDOM OF

INFORMATION ACT and two questions are raised: one

arises out of the terms of section 38 of the FREEDOM

OF INFORMATION ACT and the other out of section 32

of the States INTERPRETATION OF LEGISLATION ACT. I

am indebted to the assiduity of my learned junior for

having had photocopied the pages from the relevant

legislation. I wonder if I could hand up three of

those files.

If I could take Your Honours first of all to

the point that arises under the FREEDOM OF INFORMATION

ACT and take Your Honours to section 38. The applicant

in this case asked for access to certain documents.

They, I think, were results of public opinion polls

which were in the possession of the Department. An

application was refused under section 28 on the basis

that they had been prepared by a minister for

submission to Cabinet.

The facts found by the Administrative Appeals

Tribunal were that they had not been prepared by the minister himself but by a consultant on the minister's

instructions and they were prepared for the purpose

of submission to Cabinet and were in fact submitted

to Cabinet. Now, in the first instance, the

Department was successful on that issue but the matter went to the Full Court and the Full Court decided

that although they had been prepared on the

instructions of a minister, they had not been prepared

by the minister within the meaning of section 28 and

hearing. the matter was sent back to the tribunal for further In the meantime a regulation had been passed by the

Public Service Board in respect of certain types of
information which I will call, for convenience,

Cabinet information- but I will come to the regulation

later - forbidding amongst others officers and
employees of the public service from disclosing that
information. And it is in that way that section 38

becomes relevant. That says:

A document is an exempt document if there

is in force an enactment applying specifically

to information of a kind contained in the

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document and prohibiting persons referred
to in the enactment from disclosing

information of that kind -

The second leg of the section is not in issue because

it seems to be common ground that the regulation

does prohibit persons from disclosing the information.
The matter which was agitated before the tribunal
and before the Full Court was, does the regulation -

and "enactment" is defined as including regulation -

apply specifically to information of a kind contained

in the document. That is, does the regulation refer

to a kind of information?

The first point I want to make about that, with

respect, is this, that information has many

characteristics. It can be defined by any one of

those characteristics. For instance, it has subject-

matter, personal affairs or Cabinet decisions can be

the subject-matter, or defence secrets. I mention

personal affairs and Cabinet decisions because those

are two classes of exempt documents referred to in the

Act. But then information also has the characteristic

that it comes into existence and it can be defined by

the way in which it comes into existence; for instance,

prepared by a minister or subject to legal professional

privilege - that is a characteristic of information.

It may have any sort of subject-matter or content but

one thing that characterizes that information is the

circumstances under which it came into existence and

exempt documents.

it is characterized in that way in section 32 of the are

Information can be, as in this case, characterized

by the way in which it is communicated from one person

to another or by the way in which it is dealt with, as
in section 37 of the Act, information communicated by
the Commonwealth to a State, that is a kind of
information, whatever the content. In another section,

information communicated in confidence and there are

other examples which could be got from the Act.

All those ways of characterizing information are recognized by the FREEDOM OF INFORAMATION ACT

and one of the ways in which information was

characterized appears in the regulation which is set

out, amongst other places, at page 80 of the

application book. If I could take the Court to

regulation 3(1):

In these Regulations 'Cabinet information' includes any information that is in the possession of a Minister, an administrative

unit

that is this case, it was in possession of the

Department -

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or other body constituted under the law of Victoria, being information that has

been submitted to the Cabinet for its

consideration or is proposed by a
Minister to be so submitted or records
the proceedings or conclusions of the

Cabinet.

And the fact in this case is, and it was so found by

the tribunal, the information contained in the

documents in issue was information submitted to

Cabinet for its consideration by a minister and falls within that part of the regulation.

Now, what the Full Court held is that information

as referred to in section 38 can be characterized only

by reference to its content or subject-matter and that the characterization of information in any other way

does not constitute a kind of information for the

purposes of that section. And that appears in the

leading judgment which was that of Mr Justice Gobbo

at page 101.

BRENNAN J: Would it be right to say, Mr Solicitor, that if

that regulation had the effect for which you contend,

that the FREEDOM OF INFORMATION ACT can be

circumvented by a minister proposing to take any

information to Cabinet?

MR BERKELEY: Apart from the verb that Your Honour chose, we

would agree with that, because if one looks at the
Act, the objects are set out in section 3 - I did not anticipate that I would have to go to this -

is to create - 3(l)(b):

create a general right of access to
information in documentary form in the

possession of ministers and agencies

limited only bJ exceptions and exemptions

necessary for the protection of essential

public interests.

So what is created is not a - it is not right to say

that the object of the Act is to create access to
government documents.	The object of the Act is to

create a limited access to public documents and

limited by exemptions necessary for the protection of essential public interests. So one can come to the conclusion that the exemptions which are set out
in Part 4 of the Act which includes section 38, are considered by Parliament to be exemptions necessary for the protection of essential public interests.

By putting the section in those terms,and providing that an enactment includes a regulation, Parliament

left it open to the executive, subject to the

parliamentary control that there is in respect of

regulations, left it to the executive to add to the

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exemptions that are in the Act. I mean, that is

clearly a possibility that was contemplated when

this was drafted and a possibility that was

intended. And the sanction in that case is the

control that Parliament has over the making of

regulations and disallowance of them. But it was

clearly thought, when this was enacted, that it was

in the public interest to leave this possibility open.

And the section in exactly the same words appears in

the Commonwealth Act.

Now, the consequence is the one Your Honour put to me, but one should not assume that that is

inconsistent or contrary to the objects of the Act.

We would say it implements the limited objects of

the Act.

Now, at page 101 His Honour says this, starting

about three lines from the top of the page:

The general description of "Cabinet

information" in the regulations is not, in my

view, a specific statement of a kind of

information for the purposes of s.38. At

best it amounts to saying that any information

placed before Cabinet is a kind of information.

That appears to be altogether too general and

uncertain to be a kind of information for it

could cover every conceivable kind of

information .

I think when one reads on it is apparent that what

His Honour means there "every conceivable subject- matter".

Moreover it appears to categorize information

solely by reference to destination and not by

reference to content. In HARRIGAN's case the enactment relating to material placed before any officer was sufficient to provide

an exemption but it was an enactment that

specified such information "with respect to

the affairs of another". This is, of course,

a wide class of information but the description

was one that denoted the content of the

information. Sometimes the categorization

of the information by reference to source or destination may very well suffice when

that description is of such a nature as to

create its own class of character, especially

if the content is thereby identified. But,
as a general rule, description of information

by reference only to source or destination

should not be taken as thereby identifying

what kind of information is being provided.

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Now, if one looks at section 38, in our submission

that limitation does not appear there. There is a limitation clearly enough and that is it must be a

specific kind of information, but "kind" does not

refer merely to identification by one characteristic.

The section has never been the subject of consideration

by this Court. It has been considered a number of

times by the Federal Court and in relation to

regulations of the kind that prohibit an officer
disclosing anything that comes to him in the course
of his duties and I think I can encapsulate the

decisions fairly by saying what the Federal Court has

decided in those case is that a regulation in those

terms is not a regulation about information at all,

it is a regulation about the duties and functions of

officers.

Now, the second ground raises the question of

section 22 of the Victorian INTERPRETATION OF

LEGISLATION ACT and before I could do that, I wonder if I could ask Your Honours each to pick up a blue

pencil and turn to page 80 of the application book

and strike out certain words so that Your Honours
can see what it was that we asked the Full Court to

do, because in the Full Court this regulation was

held to be ultra vires the Public Service Board.

First of all, could I take Your Honours to the

third line of regulation 3(1) and strike out the

words after unit "or other body constituted under

the law of Victoria". That would leave the document

as being those "in the possession of a Minister or

an administrative unit", which in effect means the

government department. Then could I ask Your Honours

to turn to page 81 and cross out (g). Then could I

ask Your Honours, in rule 4, Cabinet information	shall not be disclosed or communicated 1, 1 to cross out
those next words "to any person" or recorded or copied
and cross out the other words "by any person" and
then leave in unless and then cross out the next three words "that person acted", so that would leave
a rule that "Cabinet information shall not be
disclosed or connnunicated" and so on, and the next
rule will then say, "It is an offence for any
officer or employee" and that is defined by the Act as meaning an officer or employee in the public service, "to do anything forbidden by Regulation 4."
Before going to the way the Full Court decided this, can I take the Court to the legislation. For
many years, and before and after 1958, there was in
force in Victoria a section in the INTERPRETATION ACT -
we have not got the 1958 Act but it was in identical
terms to section 15A of the Connnonwealth ACTS
INTERPRETATION ACT which is in document 8. I am sorry,
Your Honour, it was missing from my folder. The 1958
Act, Your Honours, was document 9, and section 3 of

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that is in exactly the same terms as section 15A of
the ·Corrnnonwealth Act. Now in 1984 there was a new

INTERPRETATION ACT passed in the State of Victoria which made a radical extension to the terms of section 3 and that is contained in document 10 in section 6:

Every Act shall be construed as operating to the

full extent of, but so as not to exceed, the
legislative power of the State of Victoria, to

the intent that where a provision of an Act -

and then these words are new:

or the application of any such provision
to any person, subject-matter or

circumstance, would, but for this section,

have been construed as being in excess of that

power, it shall nevertheless be a valid

provision to the extent to which it is not in

excess of that power -

and then the following words are new, taking up the

earlier new words -

and the remainder of the Act and the

application of that provision to other persons,

subject-matter or circumstances shall not be

affected.

Now, in our submission, that change, that addition to

the section was intended to extend very greatly the

powers of the court to validate Victorian legislation.

The section.22 is in the like terms and that applies,

in the like terms, to subordinate legislation. It
occurred to us that the extra words which are now
in the INTERPRETATION ACT are probably founded upon

what Sir John Latham said in the case of PIDOTO V VICTORIA, 68 CLR 87, and it is not on our list of

cases but we have three volumes here. I wonder if

we could hand three volumes up to Your Honours.

That was a question of whether certain wartime

legislation was ultra vires the Connnonwealth or

whether it was within the defence power. It was a

case of applying an industrial regulation to State
public servants and the Court held that in so far as

the State public servants wa:-einvolved in industry,

under the defence power the Connnonwealth could

regulate their working conditions. But they could not

regulate the working conditions of State public

servants engaged merely in governmental functions.

There was a regulation which applied indifferently

in general terms to all State public servants and the

question which was argued and which was decided was

the extent to which the Act could be severed or read

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down so as to have valid application and the

particular passage I want to refer to starts at the

bottom of page 107 and Sir John is there referring

to the terms of section 15A of the Connnonwealth ACTS

INTERPRETATION ACT:

It is a fair construction of the Act to say

that Parliament has in the Act indicated

its general intention that all Federal laws

shall be held to be valid so far as possible.

But it may be that the provisions of a

particular law show that it was the intention

of the Parliament that, if the law did not have

a full and complete application in all cases

according to its terms, it should not apply

in any case. The whole question is one of the

intention of Parliament.

Mr Phillips, in an interesting argument,

submitted to the Court that the Act was not

directed to the construction of laws for the

purpose of determining their meaning, but to

the operation of all laws. The Act applies

only when the law, construed according to its

terms, is beyond power. One view of the

section -

and this is the view the court proved -

is that if it appears that Parliament intended

it to operate under certain conditions, even

though it could not operate fully as

expressed, and if this intention can be

ascertained from an examination of the law

itself (taking the ACTS INTERPRETATION ACT

into account), then it is valid in relation

to those conditions. This view treats the

Act as prescribing a rule of construction .....

Upon this view, where, .... good and bad provisions

are contained in separate words and expressions,

then it will be possible to strike out the invalid

parts, provided that the operation of the remaining

parts of the law remains unchanged.

Now, the next view stated is the view put forward by

Mr Phillips:

But if, either in such a case or in the case
of "general words or expressions" the Court
is of the opinion that the law was intended to

operate fully and completely according to its

terms, or not at all, then the law would be

either completely valid, or completely invalid.

The opposing view -

this is Mr Phillips' view -

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for which the applicants contend, is that the

Act should be read as affecting the operation

of all laws in the sense that all laws are to

be held to be valid in all cases to which

they are, according to their terms, applicable,

irrespective of failure to operate in other cases:

that is, that the Act in effect says that all

laws are to be construed as validly applying

wherever they could by suitable limitations

have been made validly applicable. Upon this

view no legislation would ever be completely

invalid if a case could be discovered to which

it could have been validly applied.

And when one goes back to section 6 of the 1984 Act

our submission is that that is what Parliament
intended - that is the way in which Parliament
intended this new and enlarged section to operate.

It was to operate in respect of persons, subject-

matters and circumstances upon which it could validly

operate. Now, when the Full Court came to consider

this, what the court did was to go through all the

cases in the Cormnonwealth Law Reports - and I think

all of them except two are in the Cormnonwealth Law Reports - and they are all upon section 15A of the

ACTS INTERPRETATION ACT, and having considered the

way in which the High Court applied the ACTS

INTERPRETATION ACT, the Full Court proceeded to apply

those principles to the regulation in this case as if
the 1958 Act had never been repealed and as if the

new section had never been enacted. And that appears

quite clearly at page 112 - between pages 107 and

112 His Honour Mr Justice Gobbo goes through a
number of the case~ one in Victoria and the others
in the Cormnonwealth Law Reports and considers them,

and then at page 112, about 10 lines from the top of

the page His Honour says:

From the foregoing authorities and as

a matter of general principle the following

propositions that are relevant to the present

case would seem to emerge as to the limits

on the severability of invalid legislation.

And we would say that is clearly wrong. These are

principles which emerge as to the proper application

of section 15A of the ACTS INTERPRETATION ACT and

they are cases about the proper meaning of that

section and the way it should be applied to legislation.

They say nothing at all as to the proper meaning of sections6 and 22 of the 1984 Act or to the way that

should be applied. And as a last string to our bow,

Your Honours, we would say that in any event the bad

parts of this regulation were clearly severable even

if the law had never been changed, and it should have

been severed.

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Now, the matters of general application: in

part it is of importance both to the State and to the

Connnonwealth and to the government - the public

service and for those reasons we respectfully ask

for special leave to appeal.

BRENNAN J:  Mr Solicitor, does the interpretation point arise

if you fail on the section 38 point?

MR BERKELEY:  No, Your Honour.

McHUGH J: It does not; is that right?

MR BERKELEY: Well, Your Honour might be able to see some way

in which it could. If one assumes - it all depends which way you go about it, but it all depends which

question you ask first. On the assumption that the

regulation is a valid regulation - well, one has to

first of all decide what the regulation says and to

whom it is directed. So it may be that, logically, one

cannot say what the answer is to the section 38 point

before the Court decides what the regulation says, and

for that purpose it will have to be read down in some

way. So it may be that as a matter of logic it

cannot be divided up as simply as I thought when

Your Honour Justice Brennan put the question to me.

Because if the logical thing is first of all to consider what the regulation says, and then to say

whether it discloses a kind of information, one would

have to answer that question first.

BRENNAN J: But if you say that it is - granted the full operation

of the regulation to the extent to which you would

seek to have it adopted, if you fail on the

information of a kind point, then does one need to

worry about the question of the regulatiort?

MR BERKELEY:  'Ihis is a terribly difficult question because

courts do not behave that way.

BRENNAN J:  Some do.

MR BERKELEY: Not always successfully, Your Honour. If you

had two points, both of which are essential to be

decided, both have to be decided, and the case is

authority for both. Now, it may be that when we

get up to the Full Court the Full Court will say,

well, we will only hear you - one cannot imagine the

Full Court would say we will only hear you on the

section 38 point, because if that is decided in your

favour we do not need to decide the other one. It

would need argument on both points and both points

would be decided. Now whether, logically, one goes

one way or logically one goes the other way is a

separate question. But logically, our submission is

you would first of all have to work out what the

regulation does.

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BRENNAN J:  We need not trouble you, Mr Alston.

In this case the Court does not see that the

view taken by the Full Court of section 38 of the

FREEDOM OF INFORMATION ACT is attended with

sufficient doubt to justify the grant of special

leave. Having regard to the construction which the

court placed on section 38, it does not appear to

us that whatever construction might be placed upon

the regulation the result of the case is attended
with sufficient doubt to justify the grant of special

leave.

Special leave is accordingly refused.

MR ALSTON: If the Court pleases, I ask for an order for costs.

BRENNAN J: With costs.

AT 11.23 AM THE MATTER WAS ADJOURNED SINE DIE

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