McKinnon v Secretary Department of Treasury

[2006] HCATrans 13

[2006] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S402 of 2005

B e t w e e n -

MICHAEL McKINNON

Applicant

and

SECRETARY DEPARTMENT OF TREASURY

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 FEBRUARY 2006, AT 9.29 AM

Copyright in the High Court of Australia

MR J.E. GRIFFITHS, SC:   If the Court pleases, I appear with MR J.K. KIRK for the applicant.  (instructed by Corrs Chambers Westgarth)

MR R.R.S. TRACEY, QC:   If the Court pleases, I appear with my learned friend, MS M.F.J. CAMPBELL, for the respondent.  (instructed by Australian Government Solicitor)

GUMMOW J:   Yes, Mr Tracey, we would be assisted by hearing from you first.

MR TRACEY:   The Court will have seen the applicant raises a narrow construction point. He contends that in answering the question posed by section 58(5) of the Freedom of Information Act ‑ ‑ ‑

GUMMOW J:   Just a minute, 58(5)?

MR TRACEY:   Yes, 58(5).

GUMMOW J:   Yes.

MR TRACEY:   Your Honour, we direct particular attention to the last three lines.  That is where the debate focuses.  The AAT is required to consider competing aspects of the public interest.  Now, the Secretary on the other hand contends that the Tribunal and the Federal Court were correct in holding that no balancing of competing public interests is required as part of that exercise.

GUMMOW J:   Is this phrase “the public interest” used elsewhere in this statute?

MR TRACEY:   Yes, it is.

GUMMOW J:   It is, is it not?

MR TRACEY:   In particular, relevantly, your Honour, at section 36(1)(b) which is the exemption provision that was the subject of attention in this case.  Your Honour will see in (1)(b) that the second element that has to be made out to make good the exemption claim is that the disclosure under the Act “would be contrary to the public interest”.  Then, if your Honour goes down to subsection (3), you will see that there is a provision under which the Minister can sign the certificate in which he or she specifies the ground of public interest which operates to establish “conclusively that the disclosure of that document would be contrary to the public interest”.

KIRBY J:   But that has a parliamentary requirement, does it not?

MR TRACEY:   What then happens, your Honour, is that the person who was seeking the document who is dissatisfied with such a certificate may ask the Tribunal to determine the question posed by 58(5).  The Tribunal then determines that question and then that decision is not binding.  In other words, the Minister may be aware that the Tribunal has determined that no reasonable grounds exist for the claim but still persist.  If the Minister does that, then the Minister is obliged to tell Parliament.

KIRBY J:   Let us ask why that is so.  It is so so that the Minister is rendered accountable to the people of Australia in Parliament.

MR TRACEY:   Indeed, your Honour.

KIRBY J:   That signals, does it not, that the scheme of the Act is one which is giving effect to the fundamental and very important governmental purposes of the Act which is to render government accountable?  So that suggests that this is quite an important part of the Act in the scheme of protecting legitimate confidences within the working of government, but making that truly exceptional and rendering it accountable to the people through the courts or through Parliament.

MR TRACEY:   Yes, your Honour.

KIRBY J:   That is what makes this quite an important question.

MR TRACEY:   Well, your Honour, we say that whilst it is important, it is very clear how the Act works such that despite its importance, it does come down to a construction question and one that we submit is resolved on the application of normal principles and that the principles have been well settled in the Federal Court and the Tribunal over 20 years.

HAYNE J:   Does your answer come down to an answer that the decision below is plainly right?

MR TRACEY:   Yes, your Honour.

HAYNE J:   There seems to be a deal of internal debate within the reasons, does there not?

MR TRACEY:   Well, true it is, your Honour, there is a dissenting view, but we would submit that within the majority there is plainly consistency.

KIRBY J:   But where we have an important issue of our governance and a dissenting opinion, or an extensive dissenting opinion, in the Full Court of the Federal Court and the matter is really quite important for the operation of the Act and, in fairness to government, for the preservation of matters which are truly appropriately withheld from the public, it does seem an appropriate matter for this Court to pass on the issue.  What can one say against it except that it is clear, and you say it has been clear for a long while?  Well, there is a long dissent.  It was not clear to Justice Conti.

MR TRACEY:   Well, your Honour, in addition to that, this, of course, is at the very fringe of the operation of freedom of information.  The normal position under this legislation is that a citizen has a right, subject to the establishment ‑ ‑ ‑

KIRBY J:   Is it only a citizen or is it a person?

MR TRACEY:   Well, I beg your Honour’s pardon, a person has a right to any document in the possession of government, subject to the respondent being able to establish the existence of an appropriate exemption, and that is a matter that, if dispute arises, can be resolved by the Administrative Appeals Tribunal and there is a question of law that can be tested in the Federal Court if need be.  Now, this is truly exceptional.  This is a provision that enables a Minister in an extreme case to issue a certificate which establishes conclusively that the material in the document, if disclosed, would have an impact that would be contrary to the public interest.  Now, that is something we would say ‑ ‑ ‑

KIRBY J:   Mr Tracey, by saying it is truly exceptional and an extreme case, you are making it all the more interesting to us.

MR TRACEY:   Well, I am not there yet because, your Honour, that can be tested under 58(5), but not determinatively.

GUMMOW J:   What is the content of this phrase “the public interest”?  I see it appears also in section 33A, does it not?

MR TRACEY:   Yes, it does, your Honour.  There are various exemptions that refer to it but ‑ ‑ ‑

GUMMOW J:   We would need to know, if we granted leave, in due course how this concept works its way through this statute.

MR TRACEY:   Well, your Honour, there is an important difference with 36 and 58(5), and that is that it is cast in the negative, “contrary to the public interest”, whereas the other provisions are more inclined to speak in terms of the acceptance that disclosure would be contrary to the public interest.

GUMMOW J:   There are a number of interests.

MR TRACEY:   Yes.

GUMMOW J:   How you reach a situation where you say this is the public interest is not immediately apparent in this Act.

MR TRACEY:   Well, your Honour, the difference with this is that the ‑ ‑ ‑

KIRBY J:   It may be that the scheme of the Act is, by reserving it ultimately to the Minister and a report to Parliament, it renders the Minister accountable through the electoral process and the government accountable through the electoral process, but that is, as it were, in the extreme case.  The normal scheme, as you pointed out, is to render government accountable through the provision of the documentation.

MR TRACEY:   Yes, your Honour, and that was where the answer was heading, that it is exceptional in the sense that everything else the Tribunal does under this Act is determinative.  In this instance the Tribunal may make a decision, the Minister may disagree and the Minister can resist, and all that then follows is that the Minister is accountable to Parliament.  So that it is, in our submission, for that reason right at the fringe of freedom of information.

KIRBY J:   But then, as I said before, that is exactly the sort of issue that this Court should look at.  I mean, we are not interested in the run‑of‑the‑mill routine ordinary case.  They are not really our proper province, but cases in this scheme at the very fringe and border of accountability seems to me is the very sort of matter we should examine.

MR TRACEY:   My point, your Honour, is this.  Suppose it were determined that Justice Conti’s dissenting view was the correct view, all that that would produce would be a decision that the Tribunal, under 58(5), when it was determining whether there exist reasonable grounds for the claim, would need to engage in a balancing exercise.  That may produce the result that the Tribunal considers that on balance the claim cannot be sustained.  But the issue then arises, what happens next?

KIRBY J:   You are working to the fact that the Minister has the last word.

MR TRACEY:   Exactly.

KIRBY J:   But in ordinary administrative law principles the Minister would then exercise his final discretion having regard to the fact that the Tribunal has found that it is in the public interest the matter be revealed.  One should not assume that the Minister will persist with his view.

MR TRACEY:   He would do it in the knowledge that the Tribunal had so found as a result of a balancing exercise.

KIRBY J:   That is right.

MR TRACEY:   An exercise on which minds might reasonably differ.  So the Minister would be perfectly entitled to report to Parliament that in his view it was reasonable to make the claim, and Parliament would either accept that or it would not.

KIRBY J:   But in the real world of parliamentary democracy, the fact the Minister would be so reporting after the expert tribunal had balanced and concluded that it was in the public interest, the Minister might come to a different view.  That is how parliamentary democracy works.

MR TRACEY:   Of course, your Honour, I accept that.

HAYNE J:   But does the Tribunal determine that it is in the public interest?  The Tribunal determines that there are grounds for the claim.

MR TRACEY:   Yes, that is all it can do, your Honour.

HAYNE J:   That leads on to the question, at the hearing of this matter there seems to have been evidence led, about what?

MR TRACEY:   About the damage to the public interest that would be occasioned by the release of these documents.  There is evidence given by ‑ ‑ ‑

KIRBY J:   They do not leap out as sort of very secret sort of documents.  I mean, I know it is not for the Court to make the ultimate decision, but this is not, as it were, national secrets of that kind.

MR TRACEY:   Your Honour, no, this is not a national secrets case.

KIRBY J:   It is not the sort of military things that we often see you in.

GUMMOW J:   What was the basis from this evidence?  I did not understand it either.

MR TRACEY:   Your Honour, I do not want to be ‑ ‑ ‑

GUMMOW J:   Both sides put it on.

MR TRACEY:   They did, but the critical evidence was heard in camera under the provisions of the Act that require privacy and, accordingly, I cannot answer your Honour’s question in open court.

HAYNE J:   But there was evidence given, for example, by Mr Stutchbury and Mr Rose.

MR TRACEY:   Yes.

HAYNE J:   What was the issue, what was the point, or what was the attempted proof?

MR TRACEY:   Their evidence was directed to saying that there were good reasons in the public interest why this material ought to be disclosed.  They were saying, “We’ll put it in the newspaper”.  They wanted to publish it in The Australian newspaper and let people know.

HAYNE J:   That was evident from the application, but there we are.

MR TRACEY:   Your Honour, the evidence was only relevant if our friends are right and that the statutory exercise mandated by 58(5) required the Tribunal to look both for matters pro and con on the public interest.

GUMMOW J:   Just assume that argument succeeded here, we would send it back, would we not?

MR TRACEY:   It would have to go back, your Honours, because your Honours would not know what the evidence was favouring the Minister’s claim.

KIRBY J:   But in a sense this is a test case.  I mean, the particular evidence and the issue in the particular case is not legally significant.  What is legally significant is whether the correct test has been applied in the Tribunal.

MR TRACEY:   That is the only issue on this application.

GUMMOW J:   Yes, that must be so.

MR TRACEY:   It is a construction point.  It is what 58(5) means.  What we say is that those words, “whether there exist reasonable grounds for the claim”, indicate that all that the Tribunal has to look for is the existence of grounds that would satisfy, in the George v Rockett sense, a reasonable mind that the release would be contrary to the public interest.  It may be that there are other considerations that tend in the opposite direction, but that is not to the point.  What the Tribunal is required to look for is the existence of

reasonable grounds for the claim.  If they are identified, then that is the extent of the exercise.  That exercise can be undertaken without the need to identify and consider facts which have an opposite tendency. 

It is also interesting, your Honours, as the Federal Court has said more than once, that the construction for which our friends contend would introduce by the back door the exercise that section 36(3) is designed to pre‑empt, because there is no doubt that under section 36(1)(b), where a claim is made for exemption under that provision, that the decision whether something would be contrary to the public interest or not involves a balancing exercise.

KIRBY J:   I think we understand that.  That is an argument for your construction.

MR TRACEY:   Yes.

KIRBY J:   The issue is whether we should look at it.  It may be in the end that you will succeed.  This is a delicate balance that Parliament has created in the Act which is protective of that small zone to which the Act will not penetrate, but that small zone, in an accountable democracy, is an important matter to define correctly.  That is why it does seem to be a matter which this Court should examine.

MR TRACEY:   All I am seeking to do, your Honour, is to seek to persuade the Court that the point is (a) a narrow one, (b) that it has been correctly determined below and ‑ ‑ ‑

KIRBY J:   And (c) that it is clear.

MR TRACEY:   ‑ ‑ ‑ it is sufficiently clear.

KIRBY J:   We are back to where you started.

MR TRACEY:   Indeed, that it does not need to occupy the attention of this Court.  That in substance is the submission.  If the Court pleases.

GUMMOW J:   Thank you.  We do not need to hear from you, Mr Griffiths.  There will be a grant of leave in this matter.  It will be a one day case I would think, gentlemen.

MR GRIFFITHS:   Yes, your Honour.

GUMMOW J:   We will need to be assisted by an analysis of the Act in an order sense, if I can use those words.

KIRBY J:   Just for context purposes, Dr Griffiths, if there is any wisdom to be found in the way in the United States Freedom of Information Act and the new British Freedom of Information Act they look at this, that could be helpful just to know, because ultimately there is this small zone.

MR GRIFFITHS:   Yes, they use a different formula in the United Kingdom, but we will address that, your Honour.

GUMMOW J:   Yes, that would be helpful.

AT 9.47 AM THE MATTER WAS CONCLUDED