McKinnon and Secretary, Department of Treasury

[2004] AATA 740

Administrative

Appeals

Tribunal

 

INTERLOCUTORY DECISION AND REASONS FOR DECISION [2004] AATA 740

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/689 & 809

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL McKINNON

Applicant

And SECRETARY, DEPARTMENT OF TREASURY

Respondent

INTERLOCUTORY DECISION

Tribunal Justice Garry Downes, President

Date13 July 2004

PlaceCanberra

Decision The decision is set out in the reasons herewith.

........[sgd Garry Downes]........
  President

CATCHWORDS

Freedom of Information Act 1982 (Cth) s 58C

Department of Industrial Relations v Forrest (1990) 21 FCR 93

REASONS FOR DECISION

13 July 2004 Justice Garry Downes, President

1.      At the commencement of the hearing yesterday the parties put submissions to me as to how the two matters before me should proceed.  Submissions took the best part of the day.  The issues addressed included who should begin and whether there should be two hearings, at one of which neither the applicant nor his legal representatives could be present.

2.      It can be a mistake in contested proceedings to attempt to lay down rules on evidentiary and procedural matters in advance of the relevant issues arising.  It is usually better to deal with such issues as and when they arise.  I do not think this case is any exception.  I think that the best course will be to resolve issues of evidence and procedure as the hearing proceeds.

3.      The only question which must be resolved now is who should begin.  The course which seems appropriate to me is for the respondent to put before me the s 37 documents and any other background documents not in controversy.  The applicant can then call all his evidence. Precisely how the matter then proceeds can be decided later. 

4. The evidentiary and procedural concerns in this case flow from the fact that the applicant has asked the Tribunal to determine whether reasonable grounds exist for the issuing of conclusive certificates under s 58 of the Freedom of Information Act 1982. In such a case s 58C requires that in some circumstances the Tribunal shall hold the hearing of part of the proceedings in private.

5.      The issues which the parties have sought to address relate to when such a hearing becomes necessary, how extensive it should be and how it should proceed.  These are not easy matters to rule upon in advance. 

6. The first question is when the requirement for such a hearing arises. My present inclination is to think that it will arise when evidence information or a document supporting a claim that disclosure of a document would be contrary to the public interest is presented or a submission in relation to a claim that disclosure of a document would be contrary to the public interest is made. However, none of these circumstances has yet arisen. I will rule upon whether the provisions of s 58C have been attracted as the case proceeds.

7. The second issue is what happens when the provisions of s 58C are attracted. The answer which first suggests itself is relatively simple. The legislation provides the answer. First, the hearing shall proceed in private (par 58C(2)(a)). Secondly, the Tribunal shall determine who shall be present (par 58C(3)(a)) and shall prohibit the publication of evidence and submissions (par 58C(3)(b)).

8.      However, the parties have put submissions to me, primarily based upon the decision of the Full Federal Court in Department of Industrial Relations v Forrest (1990) 21 FCR 93, which may circumscribe these simple propositions and the tentative view I have expressed as to the effect of s 58C. The applicant says that s 58C only applies to evidence or material which might disclose the contents of documents claimed to be exempt. The respondent says that virtually all its evidence or material is within this section. The applicant, as an alternative to its argument as to the limited operation of s 58C, says that the Tribunal can determine who can be present at a private hearing and there is no requirement that the applicant and his legal representatives must be excluded from any private hearing. The respondent says that if there is to be a private hearing both the applicant and his legal advisors must be excluded. I do not propose now to rule finally on these matters in an interlocutory application. However, I will indicate some tentative opinions.

9.      I do not think that anything in Forrest requires me to rule that the applicant and his legal representatives can never be present at a private hearing.  Part of the ratio of Forrest is that “where there is a conclusive certificate in force, the document which is the subject of the claim for exemption shall not be revealed to persons who are present at the hearing including the applicant for review, his witnesses, agents or legal representatives” (p 119).  I agree with this observation.  It follows that the discretion conferred by par 58C(3)(a) should not be exercised to permit either the applicant or his legal representatives or any third party to be present when such evidence is given.  However, that does not mean that the applicant or his legal representatives must always be excluded from a private hearing.  The judges in Forrest did not say so.  The problem in Forrest was that the Tribunal did not exercise its discretion by giving directions under subs 58C(3) until long after it became obliged to do so in accordance with the section and, when it did, it gave directions as to who should be excluded and not, as it was required to do, as to who should be permitted to be present. The circumstances in which persons may be permitted to be present at a private hearing may be limited and the applicant and its legal representatives may be rarely included but there is no obligation on the Tribunal not to permit them to be present. The observations of Northrop J that “it is difficult to visualise what would justify the giving of a direction with respect to an applicant” (p 106) is a statement that such a direction could be given as much as it is a statement that such a direction would only rarely be given. The observation of the majority (Lockhart and Hill JJ) that the Tribunal is “required by s 58C(3) to give directions as to … the persons who may be present at the hearing …” (p 119) clearly recognises the discretion.

10.      Forrest clearly recognised the discretion of the Tribunal to determine who should be present when evidence attracting the provisions of subs 58C(2) was being adduced. It makes it clear that when that evidence discloses the contents of material claimed to be exempt it cannot be exercised to permit the applicant or his legal representatives to be present. But it does not address the many circumstances which might be covered by subs 58C(2) which fall short of disclosure of the contents of documents claimed to be exempt.

11. There is a passage in the judgment of Northrop J (p 106) which suggests that his Honour understood the phrase “private hearing” in s 58C to mean a hearing during which the applicant must be excluded. No similar passage appears in the joint judgment of Lockhart and Hill JJ. In addition to referring to a hearing in private s 58C also refers to a hearing “in public” (par 58C(2)(b)). The distinction between a hearing in public and a hearing in private is usually that the public is excluded. The parties generally remain in the hearing room during a hearing in private. However, hearings under the Freedom of Information Act are somewhat different.  No standing is required for the making of an application.  Accordingly, an applicant is in no different position to any member of the public even though the applicant is bearing the burden and cost of making the application.  It seems to me to follow, consistently with some of the reasoning in Forrest, that the ordinary concept of a private hearing at which the parties will be present does not carry over completely to proceedings under the Freedom of Information Act.  This is a matter which should be borne in mind when a determination is made pursuant to par 58C(3)(a) as to who should be permitted to be present at a private hearing. 

12. I will approach the hearing of this matter on the above basis. Where evidence touches upon the contents of documents which are claimed to be exempt neither the applicant nor his legal representatives will be permitted to be present. Where it does not, although the evidence is still within subs 58C(2), I will determine, as I am bound to do pursuant to subs 58C(3), who should be permitted to be present. In any case where subs 58C(2) applies I will, pursuant to par 58C(3)(b), give directions prohibiting publication.

13. In the result where an issue under subs 58C(2) arises I will decide, first, whether subs 58C(2) is attracted and, if it is, I will determine who shall be permitted to be present and then sit in private. The practical way this matter should be dealt with is by the respondent identifying in advance which material it claims to be within subs 58C(2). Some of this material may not have been seen by the applicant or his representatives. I will hear applications relating to such material in the absence of the applicant and his representatives. However, some of the material which the respondent claims to be within subs 58C(2) has already been served upon the applicant’s representatives. I will rule on that material after hearing submissions from both parties. However, where I uphold a claim under subs 58C(2) I will not receive the document in the hearing in public but will do so in the hearing in private. I see no reason why some material in an affidavit should not be received in the public hearing while other material is received in the private hearing. If material in an affidavit is received in the public hearing then the applicant’s representative will be entitled to cross examine the respondent’s witness on that material. The sensible course would seem to be to defer the tender of material covered by s 58C until the end of the public hearing and then admit it together in one private hearing. I will rule on the question of whether and to what extent the applicant and his legal representatives can be present at the private hearing in the light of the material which is to be presented. However, in making determinations under par 58C(3)(a) I will bear in mind the different nature of proceedings under the Freedom of Information Act to ordinary proceedings and I will bear in mind the observations made in Forrest.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Garry Downes, President

Signed: ........[sgd Shamus Toomey]........
  Associate

Dates of Hearing  12-13 July 2004
Date of Decision  13 July 2004
Counsel for the Applicant         Dr J Griffiths SC with Mr J Kirk
Solicitor for the Applicant          Corrs Chambers Westgarth
Counsel for the Respondent     Mr R Tracey QC
Solicitor for the Respondent     Australian Government Solicitor