Gun Control Australia Inc v Hodgman and Archer
[2019] TASSC 3
•8 February 2019
[2019] TASSC 3
COURT: SUPREME COURT OF TASMANIA
CITATION: Gun Control Australia Inc v Hodgman and Archer [2019] TASSC 3
PARTIES: GUN CONTROL AUSTRALIA INC
BROWNE, Roland
v
HODGMAN, The Hon William
ARCHER, The Hon Elyse
FILE NO: 1370/2018
DELIVERED ON: 8 February 2019
DELIVERED AT: Hobart
HEARING DATE: 26 September 2018
JUDGMENT OF: Brett J
CATCHWORDS:
Administrative Law – The Ombudsman – Jurisdiction – Application pursuant to Right to Information Act seeking disclosure of advice from Police Minister to Premier – Ombudsman correct to refuse to entertain a request for external review of the delegate's decision.
Right to Information Act2009 (Tas), ss 43, 44, 45(1)(a).
Ombudsman Act1978 (Tas), s 12(5)(a).
Aust Dig Administrative Law [1149]
Administrative Law – Judicial review – Grounds of review – Failure to observe a statutory procedure – Matters that must be considered in deciding if the disclosure is contrary to the public interest – Delegate required to give active consideration to, and make findings concerning the matters – Failure to make reference to conclusion and give reasons strongly supports the conclusion that the delegate did not take these considerations into account.
Right to Information Act2009 (Tas), s 33, Sch 1.
He v Minister for Immigration and Border Protection [2017] FCAFC 206, 255 FCR 41, applied.
Aust Dig Administrative Law [1032]
REPRESENTATION:
Counsel:
Appellant: C Tran
Respondent: P Turner
Solicitors:
Appellant: FitzGerald & Browne
Respondent: Office of Solicitor General
Judgment Number: [2019] TASSC 3
Number of paragraphs: 44
Serial No 3/2019
File No 1370/2018
GUN CONTROL AUSTRALIA INC
v THE HON WILLIAM HODGMAN
and THE HON ELYSE ARCHER
REASONS FOR JUDGMENT BRETT J
8 February 2019
According to the applicant, the respondent, the Tasmanian Premier, on two occasions in March 2018, made public statements in relation to mooted changes to legislation which restricts the use and possession of firearms. The alterations were said to be the subject of a policy document prepared in 2018. On each occasion, the Premier stated that he had received advice from the Police Minister that the proposed changes would not breach the National Firearms Agreement. The first occasion was during the course of an interview in an ABC Radio broadcast on 2 March 2018, and the second during the course of a media conference held in Hobart on 5 March 2018. The Premier's statements were in response to questions about criticism that the changes would breach that agreement. The fact and content of the statements is not in issue in these proceedings.
On 19 March 2018, the applicant made an application to the Premier pursuant to the Right to Information Act 2009 (the Act) seeking the disclosure of the said advice from the Police Minister. The application was assessed by a person to whom the Premier had delegated his functions under the Act. It is common ground that this delegation included the power to assess whether the disclosure of the information was required by the Act. The delegate's decision, with a statement of reasons, was notified to the applicant in writing on 30 April 2018. The decision confirmed that there was information in the possession of the Premier which was relevant to the request, in particular an email exchange between the Premier's office, the Police Minister's office and the Tasmanian Government Communications office, all of which were described as "internal deliberations concerning response to media query". However, the delegate determined that all of the information was exempt information, and, accordingly, not liable to be disclosed to the applicant pursuant to the Act. The basis of this decision was that the information fell within s 35 which relates to internal deliberations and consultations between officers of public authorities and Ministers.
The applicant does not dispute that the information in question falls within the description contained in s 35. However, the effect of s 33 is that such information will only be exempt if the Minister, or in this case the Minister's delegate, considers "after taking into account all relevant matters, that it is contrary to the public interest to disclose the information". In his written reasons, the delegate determined that it would be contrary to the public interest to release the said material, and hence the information was exempt information. His reasons for this determination are contained in the following passage:
"... I have determined that releasing this information would prohibit the frank exchange of views and deliberative processes between Ministerial Staff in the future and would not, in this instance, enhance the scrutiny of government administrative processes (Schedule 1(g) of the RTI Act)."
The applicant now applies to this Court pursuant to s 17 of the Judicial Review Act 2000, for an order of review relating to this decision. The grounds of that application are as follows:
"AThe respondent, by his delegate, constructively failed to exercise his jurisdiction by not considering the interview and media conference during which the information sought were [sic] referred to publicly by the respondent [Judicial Review Act 2000 s 17(2)(b) and s 17(2)(i)].
Particulars
(a) The delegate was obliged to give reasons pursuant to s 22 of the Right to Information Act 2009 (Tas).
(b) The delegate's reasons do not refer to these matters.
(c) Having not referred to them, it may be inferred that the delegate did not consider them.
(d) This context was sufficiently significant that failing to consider these matters results in jurisdictional error.
BThe respondent, by his delegate, failed to take into account mandatory relevant considerations and/or constructively failed to exercise his jurisdiction by not considering the matters listed in Schedule 1 to the Right to Information Act 2009 (Tas), in particular items 1(b), (c) and (d) [Judicial Review Act 2000 s 17(2)(e), s 20(b) and s 17(2)(i)].
CThe decision of the respondent, by his delegate, is legally unreasonable [Judicial Review Act 2000 s 17(2)(i)].
Particulars
(a) The statement by the respondent that '[t]hese records include preliminary views and opinions and a final decision is not evidenced in the documentation' cannot sustain the decision, because that will necessarily be the case where s 35 has applied and in the light of item 1(b) of Schedule 2;
(b) The statement by the respondent that 'releasing this information would prohibit the frank exchange of views and deliberative processes between Ministerial Staff in the future' cannot sustain the decision, in the light of the object of the Right to Information Act 2009 (Tas);
(c) The statement by the respondent that release 'would not, in this instance, enhance the scrutiny of government administrative processes' is unexplained;
(d) Other considerations, in particular items 1(b), (c) and (d) in Schedule 1, are not referred to at all;
(e) Other contextual matters, in particular the reference to advice by the respondent in public forums, is not referred to at all.
DThe reasons given by the respondent's delegate are inadequate and fail to discharge the obligation to provide reasons in s 22 [Judicial Review Act 2000 s 17(2)(i)]."
Although the grounds seek to invoke multiple bases of judicial review, they rely on a common proposition. That is that the delegate did not consider or properly take into account certain mandatory considerations with respect to the question of whether the disclosure of the information was contrary to the public interest, and if he did, did not give any or any adequate reasons for that conclusion. On the applicant's argument, the mandatory considerations are enlivened by the fact that the Premier referred to the advice in the context of a public debate about the mooted changes to the gun laws, in justification of the Government's position. The Premier has filed a Notice of Submission, but the application is contradicted by the intervener, the Attorney-General. The intervener opposes the application generally and has also raised a preliminary point. The intervener argues that the Court should dismiss the application pursuant to s 38 of the Judicial Review Act on the basis that it would be inappropriate to proceed with it, because the applicant has available to him an alternative remedy, in particular, external review of the delegate's decision by the Ombudsman, pursuant to the provisions of the Act. It is submitted that this point should be dealt with first, as its acceptance would render consideration of the substantive grounds unnecessary and probably inappropriate. However, in order to provide appropriate context for the consideration of both the preliminary point and the substantive application, it will be useful to first consider the scheme of the legislation.
Legislative scheme
Section 7 provides that a person has a legally enforceable right to be provided with information in the possession of a public authority or Minister, unless the information is exempt information. This basic proposition must be considered in the context of the provisions of s 3, which sets out the object of the Act. That section provides as follows:
"3 Object of Act
(1) The object of this Act is to improve democratic government in Tasmania —
(a) by increasing the accountability of the executive to the people of Tasmania; and
(b) by increasing the ability of the people of Tasmania to participate in their governance; and
(c) by acknowledging that information collected by public authorities is collected for and on behalf of the people of Tasmania and is the property of the State.
(2) This object is to be pursued by giving members of the public the right to obtain information held by public authorities and Ministers.
(3) This object is also to be pursued by giving members of the public the right to obtain information about the operations of Government.
(4) It is the intention of Parliament —
(a) that this Act be interpreted so as to further the object set out in subsection (1); and
(b) that discretions conferred by this Act be exercised so as to facilitate and promote, promptly and at the lowest reasonable cost, the provision of the maximum amount of official information."
As counsel for the intervener correctly submits, there is a clear distinction maintained throughout the Act between information in the possession of a Minister and information in the possession of a public authority. Each is separately defined by s 5 as follows:
"information in the possession of a Minister means information in the possession of a Minister that relates to the official business of the Minister, but does not include information which is in the possession of the Minister for the sole purpose of collation and forwarding to a body other than a public authority;
information in the possession of a public authority means information in the possession of a public authority that relates to the official business of the authority, but does not include information which is in the possession of the public authority for the sole purpose of collation and forwarding to a body other than another public authority."
A "public authority" is defined to mean:
(a)an Agency, within the meaning of the State Service Act 2000 ; or
(ab)the University of Tasmania; or
(b)the Police Service; or
(c)a council; or
(d)a statutory authority; or
(e)a body, whether corporate or unincorporate, that is established by or under an Act for a public purpose; or
(f)a body whose members, or a majority of whose members, are appointed by the Governor or a Minister of the Crown; or
(g)a Government Business Enterprise within the meaning of the Government Business Enterprises Act 1995 ; or
(h)a council-owned company; or
(i)a State-owned company;"
The distinction between the two categories of information is supported by the following provisions:
"5(2) For the purpose of the definition of 'information in the possession of a Minister', a Minister is taken to be in possession of information if the Minister is entitled to access the information and it is not information in the possession of a public authority.
5(3) For the purpose of the definition of 'information in the possession of a public authority', a public authority is taken to be in possession of information if the public authority is entitled to the information and it is not information in the possession of a Minister."
The process for obtaining disclosure of information commences with an application pursuant to s 13 to the public authority or Minister whom the applicant believes has the information, for assessed disclosure of the information. The Act prescribes various aspects of the process of assessment, including provision for assistance by the public authority or Minister to the applicant in respect of the application, a timeframe for assessment, and the mode of provision of the information. The only general exception to the provision of information, having regard to s 7, is if the information is exempt information, although the provision of information may be deferred or refused in particular circumstances (ss 17, 19 and 20). Exempt information is defined in Pt 3. Division 1 of Pt 3 prescribes various categories of information which are exempt absolutely. Division 2 prescribes categories of information which are exempt, subject to the application of the public interest test. One such category is defined by s 35, which relates to information defined as "Internal deliberative information". This includes "a record of consultations or deliberations between officers of public authorities and Ministers … in the course of, or for the purpose of, the deliberative processes related to the official business of ... a Minister or of the Government". The public interest test is prescribed by s 33. I will deal with this provision in more detail later in these reasons.
Section 22 provides that if the response to the application for provision of information is that the applicant is not entitled to the information because it is exempt information, or the provision of information is to be deferred or refused under the relevant provisions of the Act, then the public authority or Minister must give the applicant written notice of the decision and provide reasons for the decision.
It is clear from the wording of the Act that the Minister is responsible for exercising functions and powers and making decisions with respect to the provision of information pursuant to an application to that Minister, in respect of information in his or her possession. However, in relation to an application to a public authority, s 21 provides that the decision is to be made by:
(a)the responsible Minister; or
(b)the principal officer of the public authority; or
(c)a delegated officer.
Each of those terms is defined by s 5. In particular, the "responsible Minister" means:
"(a)in relation to an Agency, within the meaning of the State Service Act 2000, the Minister responsible for the administration of the Agency; or
(b)in relation to another public authority, the Minister administering the Act by which the public authority was established."
It follows that a reference to the responsible Minister is to be distinguished from reference to a Minister in possession of information in his or her own right.
Under s 24, both the principal officer of a public authority and a Minister can delegate the performance or exercise of any of his or her functions or powers under the Act (other than the power of delegation). In this case, there is no dispute that the application by the applicant to the Premier was for the disclosure of information in the possession of the Premier in his capacity as a Minister. It is also not in dispute that the Premier had lawfully delegated to the delegate in question, the performance and exercise of his functions and powers under the Act, including the power to make the decision with respect to the application.
Review of decisions – Does the applicant have an alternative remedy?
Part 4 of the Act is entitled "Review of Decisions". It provides for two types of review, internal and external. Section 43 deals with internal review. The opportunity for internal review arises in defined circumstances. These are set out in s 43(1), (2) and (3):
"(1) If a decision in respect of an application made to a public authority for information has been made by a delegated officer, the applicant may, within 20 working days after notice of the decision is given to the applicant in accordance with section 22, apply to the principal officer of the public authority for a review of the decision.
(2) If —
(a) a decision to provide information relating to the personal affairs of a person referred to in section 36 has been made by a delegated officer; and
(b) notice of the decision has been given to an external party in accordance with section 36(3) —
the external party may within 10 working days of the receipt of the notice apply to the principal officer of the public authority for a review of the decision.
(3) If —
(a) a decision to provide information that is likely to expose an external party to competitive disadvantage has been made by a delegated officer under section 37; and
(b) notice of the decision has been given to the external party in accordance with section 37(3) —
the external party may within 10 working days of the receipt of the notice apply to the principal officer of the public authority for a review of the decision."
The other form of review is external review by the Ombudsman. The relevant provisions are ss 44 and 45. I set out those provisions insofar as they are relevant to this case:
"44 Application for external review
(1) A person or external party may apply to the Ombudsman under this section for a review of a decision in relation to which section 43(1), (2) or (3) applies if —
(a) the person or external party has made an application for internal review under section 43(1), (2) or (3) in relation to the decision; and
(b) either —
(i)the person or external party has been informed of the result of the review; or
(ii)15 working days have elapsed since the application was made.
45 Other applications for review
(1) A person who has applied for information in accordance with section 13 may also apply to the Ombudsman for a review of a decision if —
(a) the decision which may otherwise be the subject of an application for an internal review under section 43 has been made by a Minister or principal officer of a public authority and as a consequence the applicant cannot make an application under section 43; or
(b) a Minister or public authority has made a decision that the information requested was not in existence on the day the application was made; or
(c) a Minister or public authority has made a decision to give access other than in the form requested by the applicant, except where to do so would breach copyright; or
(d) a Minister or public authority has decided that the information requested is not in the possession of the Minister or public authority; or
(e) following a decision being made by a Minister or public authority, the applicant believes, on reasonable grounds, that there is an insufficiency in the searching for the information by the Minister or public authority; or
(f) notice of a decision on an application under section 13 has not been received by the applicant and the period specified in, or calculated under, section 15 has elapsed.
(2) If person has applied for information in accordance with section 13 , another person may apply to the Ombudsman for review if —
(a) a Minister or public authority has decided not to consult the person under section 36(2) or section 37(2) and the person believes that he or she is a person who was required to be consulted; or
(b) a decision has been made on a review under section 43 and a person, other than the person who applied for the review, is adversely affected by the decision."
In this case, the applicant applied to the Ombudsman for an external review of the delegate's decision. The Ombudsman refused to conduct that review on the basis that he was without jurisdiction to do so. In particular, the Ombudsman pointed out that the only potential statutory bases for the Ombudsman's jurisdiction to conduct a review, at least in the circumstances of this case, were those contained in ss 44 or 45(1)(a). In that respect, the Ombudsman noted:
(a)Section 44 only provides for external review in circumstances where there has been an internal review under s 43. That section only provides for internal review of decisions made by delegated officers of a public authority, not delegated officers of a Minister. Therefore, s 44 will have no application where the decision has been made by the delegate of a Minister.
(b)Section 45(1)(a) only permits external review when the decision-maker is either the principal officer of a public authority or a Minister. It does not provide for external review in circumstances where the decision has been made by a delegated officer.
Mr Turner on behalf of the intervener accepts the Ombudsman's interpretation of ss 43 and 44. However, Mr Turner submits that the Ombudsman has incorrectly construed s 45(1)(a), and that that section authorises review in the circumstances pertaining to this case. In fact, the essence of Mr Turner's submission is that the correct construction of s 45(1)(a) is that that section provides for external review in all cases where review is not otherwise authorised under s 43, or, by extension, s 44. Mr Turner's argument relies heavily upon the asserted context provided by the statutory scheme. He argues that the object of the Act as expressed in s 3 is directed towards ensuring members of the public are able to obtain information held by both public authorities and Ministers, and that Ministers are bound to disclose such information, subject only to the constraints provided by the legislation. These constraints are in part defined by the public interest test. This test is not a matter of discretion, but rather requires an evaluative judgment assessed on the basis of objective criteria. Hence, the assessment of the application of that test is amenable to external review. Further, Mr Turner argues that there is no rational basis to distinguish between an application made to a Minister and one made to a public authority, when determining whether decisions in respect of them should be subject to external review by the Ombudsman. It is submitted that the construction of s 45(1)(a) adopted by the Ombudsman, means that a decision of a delegate of a Minister could never be reviewed, notwithstanding that there is, according to the submission, an external right of review when the decision has been made by the Minister directly. Mr Turner submits that such an outcome is completely irrational and contrary to the statutory purpose and context.
There is considerable force in Mr Turner's submissions. However, the starting point of statutory interpretation must be the plain meaning of the text of the legislation. Even allowing for the remedial nature of the legislation, a construction cannot be adopted which is contrary to the actual language used in the Act. See Attorney-General (Tas) v CL [2018] TASFC 6 per Porter AJ at [37] and [38]. In respect of s 45(1)(a), it is expressly provided that the decision which is intended to be subject to external review by the Ombudsman, is defined by two qualifications:
(a)the decision must be one which "may otherwise be the subject of an application for an internal review under s 43", and
(b)the decision must have been made by a Minister or principal officer of a public authority, and as a consequence the applicant cannot make an application under s 43.
The constraint imposed by these qualifications means that s 45(1)(a) does not provide a general right of external review in all circumstances other than the circumstances of internal review captured by s 43. If that were the intention of these provisions then the entirety of Pt 4 could have been expressed in much simpler terms. The section could simply have provided for an initial right of internal review by the Minister or, in the case of a public authority, responsible Minister or principal officer, in all circumstances where the decision had been made by a delegate. A provision could then have been made for external review in all other cases, that is, where the decision was made in the first instance by the Minister, or in the case of a public authority, the responsible Minister or principal officer, and, where a decision had been made by the appropriate person after internal review. However, this is not the scheme expressed in Pt 4. The legislature has taken considerable care to define, and hence limit, the right of review by the Ombudsman to decisions made in respect of certain categories of application. Section 43 limits the right of internal review to circumstances in which an application has been made to a public authority for information, and the decision has been made in respect of such an application by a delegated officer. The section provides for a redetermination of the decision by the principal officer of the public authority in those limited circumstances. The terms of s 43(2) and (3) are similarly constrained to circumstances where the decision has been made in the first instance by the delegate of a public authority, notwithstanding that the decisions in question, those made under ss 36 or 37, may also be made in respect of an application to a Minister. It seems to me that the terms of those provisions make it clear that internal review is not available in respect of the decision of a delegate of a Minister, on an application for disclosure of information in the possession of the Minister.
When considered in this context, I do not think that s 45(1)(a) is difficult to understand. If the reference in that provision to "a Minister" is read as "the responsible Minister", then the meaning of the provision becomes clear. The provision so construed will apply to decisions relating to applications to a public authority which have been made by the responsible Minister or public officer in the first instance. The reference to decisions which would "otherwise" be the subject of an application for internal review under s 43 limits the category of decision to those which, but for the fact that they were not made by a delegate, would otherwise be amenable to internal review under s 43. This limits the opportunity for external review under s 45(1)(a) only to decisions relating to applications to a public authority. This provision will not extend a right of external review by the Ombudsman to decisions made by the Minister or the Minister's delegate, where the application has been made to the Minister for information in possession of the Minister.
As already noted, this interpretation is consistent with the restriction in s 43 of internal review to decisions on applications made to a public authority. It is also consistent with the following:
(a)Section 45(1)(b)–(e) expressly authorises external review in respect of decisions made about applications made to a Minister or public authority, where the decision is not a general decision as to whether or not the information should be provided, but rather is a specific decision defined in each of those paragraphs. A similar observation can be made in respect of s 45(2).
(b)Section 46 provides for review in circumstances where a Minister or public authority has delayed or refused to make a decision.
Part 4 so construed demonstrates a clear legislative intention to confine the general right of review to decisions made in respect of applications to public authorities. It does not provide for the review of decisions by Ministers, except where the decision has been made by the responsible Minister in respect of information in the possession of a public authority, or some decisions of a peripheral or procedural nature concerning applications made to a Minister in respect of information in the possession of the Minister. Otherwise, there would seem to be a clear exclusion from the review system of decisions made by Ministers in respect of information in the possession of the Minister, including with respect to whether the information is exempt from disclosure. At first glance, this legislative scheme would seem to run contrary to the general object of the legislation. However, it is perhaps unsurprising that the legislation would be structured so as to exclude the decision of a Minister concerning information in the possession of the Minister from review by the Ombudsman, except in relation to procedural or peripheral matters. The general work and jurisdiction of the Ombudsman is provided for in the Ombudsman Act 1978. The provisions of that Act make it clear that the Ombudsman's role is limited to the investigation and review of administrative action taken on behalf of a public authority. Section 12(5)(a) expressly provides that the Ombudsman is not, in the exercise of his powers under the Ombudsman Act, entitled to question the merits of any decision made by a Minister. It is not difficult to understand why this is so. The Ombudsman is not intended to oversee the decisions of Ministers of the Crown. Such a role would be contrary to basic notions of democratic and responsible government. Although, as Mr Turner submits, a Minister is subject to the provisions of the Act, and the exceptions to the obligation of disclosure which depend in part upon the determination of public interest are criteria which are objectively assessed, it is consistent with the general nature of the Ombudsman's role, that the approach expressed in s 12(5)(a) of the Ombudsman Act, would be reflected in the specific machinery of the Right to Information Act.
This conclusion is not undermined by the provisions of s 47. That section confers various powers on the Ombudsman and makes other procedural provision in respect of the review of decisions relating to applications to both public authorities and Ministers. However, as already noted, the Ombudsman does have limited jurisdiction to review the decision of a Minister in respect of an application relating to information in the possession of that Minister: see s 45(1)(b)-(e) and 45(2). It is unsurprising that a facilitative provision such as s 47 would therefore be expressed in terms which incorporate decisions of a Minister.
I am satisfied that the Ombudsman was correct when he refused to entertain a request for external review of the delegate's decision in this case. The Ombudsman was without jurisdiction to do so. I note, however, that the reasons for that outcome go beyond those expressed by the Ombudsman. It is not simply a case of the decision having been made by a delegate of the Minister. I am satisfied that the power of external review expressed in s 45(1)(a) does not apply in any circumstances to a decision of a Minister or Minister's delegate in respect of information in the possession of the Minister. It follows that the preliminary point raised by Mr Turner is rejected.
Ground B – The failure to take into account a mandatory consideration
As already noted, the fundamental premise underlying each ground of review is that the delegate, when determining whether it was contrary to the public interest to disclose the information, was required to, but did not, take into account a mandatory consideration, in particular that the Premier had introduced into the public debate the advice which he had received from the Police Minister. It was this advice which was the subject of the request for disclosure. Of course, this is the direct complaint contained in ground B.
The resolution of the validity of this argument depends upon the provisions of s 33. That section provides as follows:
"33 Public interest test
(1) In this Division, information is exempt information if the principal officer of the public authority or Minister considers, after taking into account all relevant matters, that it is contrary to the public interest to disclose the information.
(2) The matters which must be considered in deciding if the disclosure of the information is contrary to the public interest are specified in Schedule 1 but are not limited to those matters.
(3) The matters specified in Schedule 2 are matters that are irrelevant in deciding if the disclosure of the information is contrary to the public interest."
The primary reason relied upon by the delegate for concluding that it was contrary to the public interest to disclose the advice is that its release "would prohibit the frank exchange of views and deliberative processes between ministerial staff in the future." This is not a mandatory consideration contained in Sch 1. However, a combination of s 33(1) and (2) leads to the conclusion that the decision-maker must take into account "all relevant matters" which includes the matters specified in Sch 1 but "not limited to those matters". The delegate's primary reason is closely connected to the nature of the material as "internal deliberative information" and is properly classified as a relevant consideration. The only other reason expressed by the delegate is that the information "would not, in this instance, enhance the scrutiny of government administrative processes." The delegate refers to par 1(g) of Sch 1.
Paragraph 1(g) in Sch 1 is expressed in the affirmative, that is "whether the disclosure would enhance scrutiny of government administrative processes". This formulation can be distinguished from other considerations which require an evaluative judgment as to whether disclosure would "promote or harm" the consideration in question, see for example pars (i), (j), (k), (l) and (m). Some paragraphs are expressed in the negative. For example par (n) requires consideration as to "whether the disclosure would prejudice the ability to obtain similar information in the future".
The only reasonable interpretation of par (g) is that it is intended to apply as a consideration in favour of disclosure if disclosure would enhance scrutiny of government administrative processes. However, the converse does not operate as a factor in favour of non-disclosure. In my view, the fact that the information would not enhance the scrutiny of government administrative processes has a neutral effect on the application of the public interest test. The only relevance of saying so is to exclude that consideration as a positive factor in favour of disclosure.
If it were not for the Premier's reference to the Police Minister's advice during the course of the public statements, then there could be little question, in my view, that the reasons expressed by the delegate clearly and adequately explained the decision reached by him. However, the applicant's submission is that the introduction of the Police Minister's advice into public statements in the context of justification of the Government's position in respect of proposed changes to the gun laws, has made relevant a number of other mandatory considerations in Sch 1. These include the following:
"(b)whether the disclosure would contribute to or hinder debate on a matter of public interest;
(c)whether the disclosure would inform a person about the reasons for a decision;
(d)whether the disclosure would provide the contextual information to aid in the understanding of government decisions."
I agree with the applicant that on the face of the record to the extent that it is available to me, these were relevant considerations. It is clear from the transcript of the ABC interview that the Premier's reference to the advice was in the context of public debate about the merits of the proposal, and in response to a direct question that reflected wider criticism that the proposals would breach the National Firearms Agreement. It was clearly offered by the Premier in partial justification of the Government's consideration of the proposal. I infer that the comment made at the media conference was in a similar context. At the most basic level of the argument, because the Premier referred to this advice in partial justification of the Government's position, it is impossible for the public to assess that question and legitimately oppose or support the Government's position in debate without being privy to that advice. The combination of s 33 and Sch 1 made it therefore mandatory for the delegate to consider these matters when evaluating whether the disclosure of the information would be contrary to the public interest. The delegate was required, at least, to consider this question of the public debate, within the context of the mandatory considerations referred to in pars (b), (c) and (d).
In submissions, Mr Turner conceded that if I was satisfied that the delegate was required to, but did not, consider these matters, then the only possible conclusion is that there has been jurisdictional error. However, Mr Turner's submission was that the failure of the delegate to expose his consideration of these matters in his written reasons did not necessarily lead to the conclusion that he had not taken the considerations into account or given them appropriate weight. Mr Turner submitted that in evaluating the reasons, "the court should not be concerned with looseness in the language of the decision-maker, or unhappy phrasing of the decision-maker's thoughts, nor should the reasons 'be construed minutely and finely with an eye keenly attuned to the perception of error'." Per Blow CJ in Rainbird v Bonde [2016] TASSC 10 at [34].
Mr Turner submitted that a proper reading of the delegate's reasons enables the Court to infer that the delegate has considered the matters in question, but attributed little weight to them, having regard to the nature of the material before the delegate.
In He v Minister for Immigration and Border Protection [2017] FCAFC 206, 255 FCR 41, the Full Court of the Federal Court was concerned with a case which raised the question as to whether a tribunal had considered matters which it was required to consider under relevant legislation in arriving at a decision. The relevant provisions were of similar effect to the combination of s 33 and Sch 1 in respect of the Right to Information Act. The court said, at [52]:
"The matters set out in reg 1.15A(3) are relevant considerations which the decision-maker is bound to consider: see Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5; (2016) 236 FCR 303 at [51]. This requires a decision-maker to bring an active intellectual process to each of those matters: Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at [462], [476], [495]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45] (and the authorities cited therein). In other words, the decision-maker must actively think about each such matter. Further, the term 'consider' imports an obligation to give proper, genuine and realistic consideration to the relevant matters: Bondelmonte v Bondelmonte (2017) 341 ALR 179; [2017] HCA 8 at [43]. The requirement to give proper, genuine and realistic consideration to a matter necessarily incorporates the application of an active intellectual process. These authorities do not suggest that a requirement to 'consider' a matter may not require a decision-maker to do more in an appropriate statutory context."
At [76], the court said:
"In our opinion, the requirement that the Tribunal 'consider' the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of 'the nature of the household', the Tribunal must ask:
(i)whether there are children and whether there is any joint responsibility for their care and support;
(ii)what the living arrangements of the persons are; and
(iii)whether and to what extent there is sharing of the responsibility for housework.
The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a 'married relationship'. In some cases, the Tribunal's answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter."
Applying those comments to this case leads to the conclusion that the delegate was obliged to give active consideration to and make findings concerning the considerations posed by at least pars (b), (c) and (d) of Sch 1. However, there is nothing in the delegate's reasons which indicate that he undertook this task. It is true that the delegate referred in general terms to Sch 1. He recorded the applicant's request which noted that the Premier had referred to the advice during the public statements in question. In the paragraph dealing with the assessment of the public interest test, the delegate noted that the records included "preliminary views and opinions and a final decision is not evidenced in the documentation". However, there is no reference to the considerations in pars (b), (c) or (d), nor any consideration of the relevance of those considerations to the question of disclosure of the material in this case. In particular, the delegate has not recorded any finding about the extent to which the disclosure of the information would contribute to or hinder debate on the proposed changes to the gun laws, inform a person about the reasons for the proposal, nor provide context in relation to the Government's decision. Further, the delegate has not expressed any consideration or view about the effect of the fact that the Premier had publicly linked the advice to the Government's justification for entertaining the proposal. In my view, proper consideration of those matters required the delegate to give "proper, genuine and realistic consideration" to them and, if appropriate, make findings about them.
The question which then arises is whether the failure of the delegate to refer to or record his assessment or findings in respect of these considerations in his reasons, leads to the conclusion that the delegate has, in fact, failed to properly consider those matters. As Mr Turner has conceded, if that is the case, then ground B, at least, is made out, and there has been jurisdictional error.
In He v The Minister for Border Protection (above), the Full Court said at [79]:
"... The making of a decision involves a mental process. The written statement functions as a record of the Tribunal's reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to 'consider' all of the circumstances of the relationship, including all the matters set out in reg 1.15A(3)."
The court went on to note as follows at [82]:
"The Tribunal's reasons were not structured in a manner that formulaically addressed each of the relevant matters in turn, but they did not have to be: see Zhang at [20]. Further, as Charlesworth J said in Singh at [20], the impressionistic and evaluative nature of the Tribunal's task must be taken into account when drawing implications from its reasons, and, further, such reasons are not to be construed minutely and finely with an eye attuned to the perception of error."
In that case, the court considered that there was sufficient in the Tribunal's reasons to enable it to conclude that the Tribunal had considered each of the mandatory considerations. However, in this case, I have reached a different conclusion in relation to the delegate's decision. Section 22 of the Act obliged the delegate to state the reasons for his decision. That section expressly included the following:
"(2) Notice given under subsection (1) is to —
...
(d)if the decision involves or relies upon consideration of the public interest in the application of a provision of this Act, state the public interest considerations on which that decision was based."
Of course, this provision did not require the delegate to necessarily state the public interest considerations, other than those on which the decision was based. Accordingly, if he considered but discounted the considerations in pars (b), (c) and (d), then he was not required by s 22(2)(d) to refer to those considerations. However, he was required, for the reasons stated above, to make a finding about them. The delegate was clearly attuned to this requirement because he had considered and made a finding about the inapplicability of the consideration in par (g). The considerations in pars (b), (c) and (d) were important to the question of public interest, notwithstanding that in the particular circumstances they may have been discounted by the delegate. The fact that the Premier had introduced the advice into the public debate required appropriate consideration. Given that the delegate referred to a consideration which he found to be largely irrelevant in respect of the question, the strong inference arises that had he considered and made a similar decision in relation to pars (b), (c) and (d), he would have made reference to that conclusion, and the reasons for it, in his decision. The failure to do so in the circumstances of this case strongly supports the conclusion that the delegate did not take these considerations into account. I have concluded that that is so. It follows that ground B has been made out.
Remaining grounds
Because of my conclusion in respect of the abovementioned ground, it is not strictly necessary to determine the remaining grounds. The conclusion I have reached means that the decision of the delegate was without jurisdiction. Hence, considerations of whether the decision was beyond power because it was legally unreasonable or infected by legal error because of inadequate reasons, become irrelevant. A decision may be beyond power because it was legally unreasonable, but if the decision-maker has acted beyond jurisdiction because he has failed to take into account relevant mandatory considerations, then a consideration of whether the decision was legally unreasonable is otiose. Further, the determination in respect of ground B necessarily implies that the reasons of the delegate are inadequate, to the extent that they infect the decision with an error of law. Once again, however, it is unnecessary to consider whether such an error renders the decision amenable to judicial review.
Relief
For these reasons, the originating application must succeed. It is appropriate that the decision of the respondent's delegate be set aside and the matter remitted to the respondent to be determined in accordance with law. I so order.
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