McKinnon and Chairperson, Great Barrier Reef Marine Park Authority

[2004] AATA 872

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 872

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/822

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL McKINNON

Applicant

And CHAIRPERSON, GREAT BARRIER REEF MARINE PARK AUTHORITY

Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date20 August 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.............[Sgd]..................
  KL Beddoe

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – request for access to documents relating to oil spills and/or other pollution caused by shipping in the Great Barrier Reef – exemptions claimed –deliberative processes – irrelevant material – privileged documents - factual errors where release would not be in the public interest – exemptions properly claimed – decision affirmed

FREEDOM OF INFORMATION – jurisdiction – document created after the date of the request for access – Tribunal may make a decision with respect to documents which have come into existence after the date of the request for access provided that those documents are within the ambit of the decision under review - applicant specified a time period in his request – document not created within that time period – document therefore outside of the scope of the request and not within the ambit of the decision under review

Freedom of Information Act 1982 ss 16(1), 36, 42

Administrative Appeals Tribunal Act 1975 s 35(2)

Re Reith and Minister for Aboriginal Affairs (1988) 14 ALD 430
Re Murtagh and Federal Commissioner of Taxation (1983) 54 ALR 313
Re Edelsten v AFP (1985) 4 AAR 220

Re The Environment Centre NT Inc and Department of the Environment Sport & Territories (1994) 35 ALD 768; (AAT Decision 9781, 12 October 1994)

Mitsubishi Motors Australia Ltd v Department of Transport (1986) 11 ALN 97
Harris v Australian Broadcasting Corporation (1983) 50 ALR 551
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 123

REASONS FOR DECISION

20 August 2004   Senior Member KL Beddoe           

1.      The applicant applied, by letter dated 27 November 2002, for access to documents relating to oil spills and/or other pollution caused by shipping in the Great Barrier Reef. The applicant sought access to documents, including reviews, assessments or evaluations, completed for the respondent Authority within the last two years relating to:

§  incidences of pollution caused by shipping;

§  the effect of any such pollution on the Great Barrier Reef environment; and

§  any forecasts relating to future shipping- related pollution and its impact on the Great Barrier Reef.

2.      The Authority granted access to certain documents in whole or in part and refused access to certain other documents.

3.      On internal review the respondent varied the primary decision by granting further access to documents in whole or in part.  Refusal of access to three documents was affirmed.

4.      The applicant then made a valid application for review in this Tribunal.

5.      In effect the applicant is seeking review of the respondent’s decision in relation to the documents as set out in Exhibit 3.  In summary only, these documents are:

Document No            Description

001 (exempt in full)     Interim Progress Report by the Great Barrier Reef Shipping Management Group to the Minister for Transport and Regional Services dated 31 January 2003

007 (exempt in part)     Marine Pollution Response Plan created by the respondent authority and EPA and dated 17 September 2003

008 (exempt in full)     The respondent Authority’s submission to the Review of Great Barrier Reef Ship Safety and Pollution Prevention Initiatives which is undated

009 (exempt in part)     Minute by the respondent Authority’s in-house lawyer directed to the respondent and others within the Authority and dated 5 April 2001

010 (exempt in full)     Undated draft project brief created by Gregor Manson

6. In claiming the exemptions for the subject documents the respondent relies on sections 36 and 42 of the Freedom of Information Act 1982 (“the Act”).

7. Section 36(1) provides that a document is an exempt document if it is a document the disclosure of which under the Act:

(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

(b)would be contrary to the public interest.

8. That sub-section is subject to other sub-sections in section 36. In particular, sub-section 36(5) provides that section 36 does not apply to a document by reason only of purely factual material contained in the document.

9. Also, sub-section (6) provides that the section does not apply to certain reports of scientific or technical experts, a prescribed body or organisation established within an agency. The sub-section also excludes from exemption under section 36 the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.

10. Section 42 of the Act provides for exemption of a document which is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

11.     At the hearing the applicant conducted his own case and Mr Swan represented the respondent.

12. Documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” Documents.

13.     In relation to the “T” Documents I should say that Document T18 was described in the index as:

“Release Minute (privileged document and not included within the scope of the request – created for the purpose of making the decision).”

14.     Given the explanation it was, in my view, unnecessary for the respondent to include in the bundle of “T” Documents 245 folios marked “This page is intentionally blank”.

15.     Further documents were tendered and marked as exhibits as follows:

Exhibit 1        Affidavit of Gregor Bruce Manson dated 4 December 2003
Exhibit 2        Affidavit of Emma Louise Flanigan dated 4 December 2003

Exhibit 3        Schedule of Documents

16. The Tribunal also had before it an unedited copy of Document T18 and copies of the subject documents (section 64 of the Act). These documents are the subject of an order in terms of sub-section 35(2) of the Administrative Appeals Tribunal Act 1975.

17.     Oral evidence was given by Ms Flanigan and Mr Manson.

18.     The background to the application for access is the complex structure of the management of shipping in the area of the Great Barrier Reef Marine Park.  According to Mr Manson other authorities exercising jurisdiction within or about the Marine Park include Department of Transport and Regional Services, the Australian Maritime Safety Authority, Marine Safety Queensland, the Australian Federal Police and shipping and pilotage groups operating in the area.         

19.     The complex arrangement for the management of shipping in the Marine Park relies on co-operation of all agencies in order to ensure appropriate measures are in place to protect the Marine Park from shipping and marine pollution incidents (Exhibit 1).

20.     The respondent claims, in the alternative, that the whole of Document 001 should not be released.  In relation to Document 001, the Great Barrier Reef Shipping Management Group was established by the Minister for Transport and Regional Services in July 2002 to implement the recommendations of “The Review of Ship Safety and Pollution Prevention Measures in the Great Barrier Reef”.  The Group is chaired by the Department of Transport and Regional Services but the respondent is a member of the Group (Exhibit 1).

21.     The document is properly described as an interim progress report to the Minister by the Group.  The report is dated 31 January 2003 – a date later than the application for access by the applicant (dated 27 November 2002) but after the primary decision.

22.     While the respondent Authority disowns authorship of the document it does not deny that it has custody and control of a copy of the document.

23.     It is clear from consideration of Document 001 that it was prepared for the purpose of advising the Minister of progress in the work of the Group and was, in that sense, an interim report.

24.     I accept Mr Manson’s evidence that parts of Document 001 merely record information that is public knowledge in the sense that it is available through web-sites etc of various agencies.  Details are set out in the affidavit of Ms Flanigan (Exhibit 2).

25.     I also accept that the document was created for the purpose of advising the Minister for Transport and Regional Services (not the respondent’s portfolio Minister) of consultations and deliberations that have taken place between the various agencies involved in the Shipping Management Group.

26. Because the respondent Authority is only one of a number of agencies responsible for Document 001, as is apparent from Mr Manson’s affidavit, there is a real issue as to whether the request for access should have been transferred to the Minister for Transport and Regional Services, in accordance with sub-section 16(1) of the Act, on the basis that the interim report is an official document of the Minister because it was prepared by the Shipping Management Group for him and sent to the Minister. Such a transfer would depend on the Minister’s consent (see Re Reith and Minister for Aboriginal Affairs (1988) 14 ALD 430). I merely raise this issue. It is a matter for the respondent to take action under section 16. I am not deciding that she should do so for reasons which will become apparent.

27.     In relation to Document 007, in respect of which the respondent says that paragraphs 2.3.1, 2.3.2, 2.3.3 and 2.3.4 with Appendix C are exempt, it is correctly described as a Marine Pollution Response Plan.

28.     Mr Manson said, in Exhibit, 1 that to ensure consistency of operational responses across the Marine Park it was necessary to update, modernise and document the operational responses between the respondent Authority and the Queensland Environment Protection Agency (“EPA”).

29.     The document is being prepared jointly with EPA to formalise responses to marine pollution incidents.

30.     Paragraph 2.3.1 is said to be now true but not true as to fact at the time it was written.  My inspection of the document suggests that the paragraph remains not true and positively misleading.

31.     Mr Manson says, and I accept that paragraph 2.3.2 (two paragraphs) contains information that has been recorded as part of the deliberative processes of the respondent Authority and the EPA, and relates to the functions of both the Authority and another Queensland Government agency with respect to the investigation of shipping incidents in the Marine Park.

32.     Paragraph 2.3.2 is misleading because it is based on an alleged Memorandum of Understanding between the respondent Authority and a Queensland Government department which, I accept, does not exist.  Therefore, the paragraph is at its highest a draft which has no basis in fact.

33.     My consideration of the two paragraphs in 2.3.2 confirms they are consistent with Mr Manson’s evidence.

34.     In relation to paragraph 2.3.3 (three paragraphs), Mr Manson says in effect, and I accept, that this paragraph implies that a deliberative process between the respondent Authority and the Queensland Government department has been finalised.  On the basis of Mr Manson’s evidence I accept that the process has not been finalised and that the paragraphs at 2.3.3 merely record a possible outcome of yet to be finalised negotiations between the parties.

35.     My consideration of those paragraphs in the light of Mr Manson’s evidence satisfies me that the release of the paragraphs, which are factually untrue, would only mislead a reader, would be positively mischievous and would be likely to adversely affect relations with the Queensland Government.

36.     Document 008 is properly described as “Great Barrier Reef Marine Park Authority – Submission to the Review of Great Barrier Reef Ship Safety and Pollution Prevention Initiatives”.

37.     In Exhibit 1, Mr Manson sets out the context for this document as follows:

“52.Following the grounding of the Bunga Teratai Satu at Sudbury Reef in November 2000, the Minister for Transport and Regional Services commissioned a review of ship safety and pollution prevention measures in the Great Barrier Reef and Torres Strait.  In January 2001, public submissions were invited with respect to this Review.  This document was prepared in response to that invitation for public submissions, and was provided to the Steering Committee responsible for undertaking the Review.

53.As the Authority’s jurisdiction extends over the Marine Park, and the Review was concerned with shipping and pollution prevention measures in the Marine Park, it was appropriate for the Authority to prepare a submission with respect to its functions.

54.Parts of this document contains information that was recorded for the purpose of consultation and contains information relating to the deliberative processes of the Authority with respect to the management of shipping and pollution prevention in the Great Barrier Reef.”

38.     Mr Manson’s evidence is to the effect that he drafted the document for consideration by the respondent Authority’s executive and that he submitted the document to the respondent.  It was, therefore, an internal document.

39.     My consideration of Document 008 satisfies me that it is in the nature of a briefing paper and I accept that Mr Manson prepared it for the purpose of briefing the respondent and the executive of the respondent Authority.

40.     Some parts of Document 009 have been released to the applicant.  Exemption is claimed in respect of certain recommendations regarding proposed legislative amendments and a limited amount of other material relating to legal advice obtained by the respondent Authority.  Certain recommendations embrace proposed changes of policy which may not need legislative changes.  It is clear from the material that there are public interest factors in favour of access to the information and also public interest factors against such disclosure.  As a general comment the proposed changes of legislation and policy are nothing more than one person’s proposals having no basis in fact to suggest they represent the views of any other person or the respondent Authority as to the detail of the recommendations.

41.     Document 010 is properly described as “Project Brief – Chemical Spill Risk Assessment for the Great Barrier Reef Marine Park and Torres Strait”.  It is clear on its face that it is a draft document.  I accept Mr Manson’s evidence that it is an internal draft document prepared by staff of the respondent Authority for internal executive review. 

42.     More specifically, Mr Manson says that the document is a project brief for a tender to conduct a risk assessment for chemical spill risk in the Great Barrier Reef and Torres Strait.  The brief was being prepared for consideration by a number of agencies and others besides the respondent Authority, and ultimately for consideration by the Shipping Management Group.

43.     Insofar as Mr Manson suggests that release of the document could fetter the tender process, I doubt that is the case.

44.     It is apparent on its face that Document 010 is a draft document which is so confusing in its content that it would be of no interest to anyone other than those responsible for drafting the final version to be used in the tender process.

45.     It would be reasonable to infer that the final form of Document 010 is likely to become a publicly available document.

Consideration

46.     The applicant seeks access to documents of the respondent Authority as set out in paragraph 1.

47.     As the respondent submits the application for access was definitive in several aspects including as to documents completed for the respondent Authority within the two years prior to the application which is dated 27 November 2002.

48.     The application was also definitive as to the subject matter as set out in paragraph 1.

49.     The primary decision and the decision under review allowed access to a number of documents but refused access to others, including Document 001.  That document is dated 31 January 2003 so that it is outside the scope of the application for access.

50.     I accept that in Re Murtagh and Federal Commissioner of Taxation (1983) 54 ALR 313 at 316 a full Tribunal said that the Tribunal may make a decision with respect to documents which have come into existence after the date of the request for access provided that those documents are within the ambit of the decision under review. However, the Tribunal qualified that statement so as to infer that such documents must be documents to which access is established by the decision under review and the decision on review.

51.     The Tribunal expanded on its dicta.  As I read those words the Tribunal was considering further documents which had come into existence being documents that raise no separate issue and are of the same character as the documents considered in making the reviewable decision by the relevant agency.

52.     In ReEdelsten v AFP (1985) 4 AAR 220 a full Tribunal considered whether a cut-off date applied when considering all documents in existence at the time of hearing. After referring to Re Murtagh the Tribunal discussed the issues and concluded that the last possible cut-off date should be the date of application for review in the Tribunal but otherwise did not demur from what was said in Re Murtagh.  That course was followed by Deputy President Forgie in Re The Environment Centre NT Inc and Department of the Environment Sport and Territories (1994) 35 ALD 768; (AAT Decision 9781, 12 October 1994), although the relevant paragraphs (21 to 24) do not appear in the ALD report.

53.     The present case is different from the above cases for two reasons.  Neither of those reasons is decisive but when considered together they are.  The first is that the applicant specified a time period for the documents to which access was sought.  It might be thought to be unusual that such a time period would confine an application for access to documents. Sometimes the time period will merely be indicative but I am satisfied that in this case it was intended, on its face, to be certain as to the documents to which access is sought.

54.     Secondly, the applicant sought access to documents completed for the respondent Authority.  Document 001 was prepared for the Minister for Transport and Regional Services.

55.     For these reasons I am satisfied that Document 001 is not a document relevant to the applicant’s request for access and I so find.  I acknowledge that the respondent had a different view because she considered the document but before me she submitted, inter alia, that it was outside the terms of the request for access.

56.     Insofar as the above Tribunal decisions suggest that I should consider Document 001, I do not follow what was said in those cases.  In coming to that position I have been instructed by the following dicta of the Federal Court in Mitsubishi Motors Australia Ltd v Department of Transport (1986) 11 ALN 97 at 100-101, as follows:

“The applicant sought support for its argument in the provisions of s 58(1) as picked up by s 59(2)(a) of the Act. It will be remembered that, by s 58(1), under the heading ‘Powers of Tribunal’, it is provided that in proceedings under Pt VI, the Tribunal has power, in addition to any other power, to review any decision that has been made in respect of the request and to decide any matter in relation to the request that, under the Act, could have been or could be decided by an agency or Minister. It was suggested, on behalf of the applicant, that s 58(1) should be construed as conferring jurisdiction upon the Tribunal to decide any claim for exemption rejected by the decision-maker.

In our opinion, a general provision such as s 58(1) should not be interpreted so as to expand the Tribunal’s jurisdiction in the manner suggested.  We would not construe s 58(1) as conferring upon the Tribunal any additional jurisdiction.  Rather, it should be seen as giving to the Tribunal the power to deal with all questions within its jurisdiction;  and, to this end, the Tribunal is not to be constrained in the proper exercise of its functions by the way in which the decision-maker has seen fit to exercise his powers.  If, for instance, the decision-maker fails to consider relevant issues, the Tribunal is not limited to reviewing only those issues considered below:  cf Re Queensland Mines Ltd and Export Development Grants Board (1985) 7 ALD 357.  But that is not the present question.  In the face of the specific provision in s 59(1) conferring a right of review in the case of one kind of exemption, we do not think that the general language of s 58(1) should be seen as conferring an additional, ambulatory head of jurisdiction upon the Tribunal.  And, even if s 58(1) is picked up by s 59(2), s 58(1) should be read down, if necessary, so as to operate on matters otherwise within jurisdiction: ‘a stream cannot rise higher than its source’: see Australian Communist Party v The Commonwealth (1951) 83 CLR 1 per Fullagar J at 258.”

57.     Document 007 is more difficult.  The respondent has conceded access to this document except the paragraphs at 2.3.  Refusal of access to those paragraphs is based on the fact that the paragraphs are not accurate.  Release of the inaccurate information would be contrary to the public interest because of the misleading nature of the paragraphs and the likelihood of damage to relations between the Commonwealth Government and the Queensland Government, which in itself would not be in the public interest.

58. I am satisfied that the relevant paragraphs at 2.3 in Document 007 are exempt within the terms of sub-section 36(1) of the Act. Insofar as the applicant has not been given access to other parts of the document, that should be remedied.

59.     Document 008 is in the nature of a briefing paper for use within the respondent Authority.  Is it therefore a record of matters in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place in the deliberative processes of the respondent Authority?

60.     In Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 at 560-1 the Federal Court (Beaumont J) made findings in that case which apply, making the necessary changes, with equal force to the circumstances of Document 008 as follows:

“In the present case, the reports were commissioned by the Corporation for consideration at the highest level.  The terms of reference indicate that matters of policy are under review.  It may be accepted that the question whether the services of a single officer or employee should be terminated does not, of itself, necessarily involve a policy matter the subject of deliberative process.  However, in the present case, the terms of reference extend well beyond that question into fields of policy-making.  The reports, although interim and, to some extent, factual in character, are within the terms of reference and accordingly derive their character from that wider context.  In my opinion, the reports, viewed in that context, are in the nature of opinion, advice or recommendation prepared for the purposes of the deliberative processes involved in the functions of the Corporation within the meaning of s 36(1)(a).”

61.     Insofar as factual material is included in Document 008, I am satisfied that it is only included for the purposes of the deliberative process and not readily severable from that context (section 36(5)).

62.     While the respondent has claimed exemption for specific sentences and paragraphs in Document 008, Mr Swan submitted that the whole document was exempt.

63. Section 22 of the Act provides for the deletion of exempt material and/or exempt material from a copy of a document to which access would otherwise be refused. That is a process that could be followed in relation to Document 008. That process would, however, result in large parts of the document which are irrelevant to the request for access, and a large part of the document where a justified claim for exemption under section 36 has been made, being deleted to the extent that the document would be unintelligible.

64.     If the document were released with the irrelevant material retained and only the exempt material deleted, then it would be outside the terms of the application for access.

65.     For these reasons, I am satisfied that I should agree with Mr Swan’s submission that the whole document, to the extent it is relevant, is an exempt document.

66. Document 009 involves claims for exemption within the terms of section 36 of the Act as an internal working document and also in terms of section 42 of the Act in relation to legal professional privilege.

67. I have considered these passages claimed to be privileged in terms of section 42 of the Act. I am satisfied those passages would be privileged from production in legal proceedings. In coming to that view I have taken into account the decision of the High Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 123. In particular, I am satisfied that the claim for exemption is made in relation to material recording advice by a lawyer provided for the dominant purpose of providing legal advice in confidence. Section 42 applies in respect of the claimed passages.

68.     As already noted Document 010 is a draft project brief prepared for eventual inclusion in a brief for a project proposed to be put out for tender.  The document is clearly, on its face, a draft in the nature of an internal working document exhibiting deliberative processes of the respondent Authority.  I am satisfied that release of such a document would be contrary to the public interest.

69.     For these reasons I am satisfied that the respondent’s decision under review was correct and there is no basis for disturbing her decision.  The decision under review will be affirmed.

I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe

Signed:         S Oliver

Associate

Date of Hearing  11 December 2003
Date of Decision  20 August 2004
The Applicant appeared in person

Solicitor for the Respondent     Mr M Swan, Australian Government Solicitor