McKinnon v Secretary, Department of Treasury

[2005] FCAFC 142

FEDERAL COURT OF AUSTRALIA

McKinnon v Secretary, Department of Treasury

[2005] FCAFC 142

FREEDOM OF INFORMATION – decision to refuse access to documents - whether ‘internal working document’ – whether disclosure contrary to the public interest – conclusive certificate

ADMINISTRATIVE LAW  - review of the decision to refuse access to documents - role of Administrative Appeals Tribunal (“Tribunal”) limited by s 58(5) of FOI Act - whether reasonable grounds exist for decision to refuse access – whether Tribunal applied wrong test of ‘public interest’ - whether Tribunal erred in excluding the appellant from attending the proceeding when oral evidence given by certain witnesses for the respondent

APPEAL – question of law

WORDS AND PHRASES  - “reasonable grounds”

Administrative Appeals Tribunal Act 1975 (Cth) - s 44(1)

Broadcasting Act 1942 (Cth)

Freedom of Information Act 1982 (Cth) - ss 36, Part IV

Public Service Act 1999 (Cth)
Scientific Societies Act 1843 (UK)

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 referred to
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Australian Capital Territory Pty Limited v The Commonwealth (No 2) (1992) 177 CLR 106 referred to
Australian Doctors’ Fund Limited v Commonwealth of Australia (1994) 49 FCR 478 referred to
Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 referred to
Australian Securities and Investment Commission v Saxby Bridge Pty Limited (2003) 133 FCR 290 referred to

Battalis v Secretary, Department of Health, Housing and Community Services (1994) 34 ALD 483 cited

Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 referred to

Botany City Counsel v Minister for Transport and Regional Development (1996) 137 ALR 281 referred to

Centrelink v Dylestra [2002] FCA 1442 cited
Chief Executive Officer of Customs v AMI Toyota Ltd [2000] 102 FCR 578 referred to

Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 referred to

Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 referred to
Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 referred to

Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 referred to
Department of Industrial Relations v Burchill (1991) 33 FCR 122 referred to
Department of Industrial Relations v Forrest (1990) 21 FCR 93 referred to

Director of Public Prosecutions v Smith [1991] 1 VR 63 referred to

Dwyer and Department of Finance (1985) 8 ALD 474 referred to

Egan v Willis (1998) 195 CLR 424 referred to
Federal Commissioner of Taxation v Broken Hill South Limited (1941) 65 CLR 150 referred to

Fewster and Department of Prime Minister and Cabinet (1986) 11 ALN N266 referred to

George v Rockett (1990) 170 CLR 104 applied
Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 referred to
Inland Revenue Commissioners v Rossminster [1980] AC 952 referred to

In re Thompson (1964) Tas SR 129 cited

Liversidge v Anderson (1942) AC 206 referred to

Metropolitan Borough of Battersea v The British Iron and Steel Research Association [1949] 1 KB 434 referred to

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited
News Corp Limited v National Companies and Securities Commission (No 4) (1984) 1 FCR 64 cited
O’Sullivan v Farrer (1989) 168 CLR 210 cited
Re Actors’ Equity Association of Australia and Australian Broadcasting Tribunal (No 2) (1985) 7 ALD 584 referred to
Re Aldred and Department of the Treasurer (1994) 35 ALD 685 cited
Re Cleary and Department of the Treasury (1993) 31 ALD 214 referred to

Re Eccleston and Dept of Family Services and Aboriginal and Islander Affairs [1993] 1 QAR 60 referred to

Re Howard and Treasurer of the Commonwealth (1985) 7 ALD 626 referred to
Re McGarvin and Australian Prudential Regulatory Authority (1998) 53 ALD 161 referred to
Re MacPhee and the Department of the Treasury (1989) 11 AAR 166 referred to
Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 referred to

Re Peters and Department of the Prime Minister and Cabinet (No 2) (1983) 5 ALN N306 referred to

Re Porter and Department of Community Services and Health (1988) 8 AAR 335 referred to
Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 referred to
Re Rae and Department of the Prime Minister and Cabinet (1986) 12 ALD 589 referred to
Re Reith and Minister for State for Aboriginal Affairs (1988) 16 ALD 709 referred to

Re Subramanian and Refugee Review Tribunal (1997) 44 ALD 435 referred to
Re Waterford and Treasurer of the Commonwealth of Australia (No 1) (1984) 6 ALN N347 referred to

Re Waterford and Treasurer of the Commonwealth of Australia (No 2) (1985) 8 ALN N37 referred to

Re Waterford and Department of the Treasury (No 2) (1984) 1 AAR 1 referred to

Reg v Tillett; ex parte Newton (1969) 14 FLR 101 cited
Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health (1995) 56 FCR 50 cited
Sankey v Whitlam (1978) 142 CLR 1 referred to
Sean Investments Pty Limited v McKellar (1981) 38 ALR 363 referred to
Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 36 FCR 111 referred to
Vetter v Lake Macquarie City Council (2001) 202 CLR 439 referred to
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 referred to

Waterford v Commonwealth (1986) 163 CLR 54 referred to

Australian Law Reform Commission Report No 77, ‘Open Government: Review of the Federal Freedom of Information Act 1982’ (1995)

MICHAEL MCKINNON v SECRETARY, DEPARTMENT OF TREASURY
NSD 70 of 2005

TAMBERLIN, CONTI AND JACOBSON JJ
2 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 70 of 2005

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	MICHAEL McKINNON APPELLANT
AND:	SECRETARY, DEPARTMENT OF THE TREASURY RESPONDENT
JUDGES:	TAMBERLIN, CONTI AND JACOBSON JJ
DATE OF ORDER:	2 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the costs of the respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 70 OF 2005

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	MICHAEL McKINNON APPELLANT
AND:	SECRETARY, DEPARTMENT OF THE TREASURY RESPONDENT

JUDGES:	TAMBERLIN, CONTI AND JACOBSON JJ
DATE:	2 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

TAMBERLIN J:

1. I agree with the reasons and orders proposed by Jacobson J in this matter. As the Court is divided in this matter, I will add some observations as to the construction and application of s 58(5) of the Freedom of Information Act 1982 (Cth) (“the FOI Act”).

2. In my opinion, the correct approach to a consideration of the application of the “public interest” is that taken by Beazley J in Australian Doctors’ Fund Ltd v Commonwealth of Australia (1994) 49 FCR 478 at 489-490, and applied in those authorities to which her Honour refers in support of her approach.

3. It is necessary to be precise about the narrow question posed by s 58(5). The starting point must be the language of that section. Section 58(5) raises for determination by the Administrative Appeals Tribunal (‘the Tribunal’) the question:

   “whether there exist reasonable grounds for the claim that the disclosure … would be contrary to the public interest.”  (Emphasis added)

   In terms, this is a narrowly confined question.

4. It is settled law that the words “reasonable grounds”, in this context, denote grounds which are not irrational, absurd or ridiculous: Attorney-General v Cockroft (1986) 10 FCR 180 at 190 per Bowen CJ and Beaumont J; Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 32 FCR 111; Battalis v Secretary, Department of Health, Housing and Community Services & Ors (1994) 34 ALD 483 at 496-497 per Carr J; Centrelink v Dylestra [2002] FCA 1442 at [24] per Mansfield J. The expression “exist” can properly be read to mean whether there are any rational or non-absurd grounds in existence: see George v Rockett (1991) 170 CLR 104 at 116.

5. The question posed in s 58(5) is quite distinct from the question whether the non-disclosure is properly and finally determined to be in the public interest. It is important to focus on the consideration that the subsection is concerned with the existence of reasonable grounds for a claim and not with the answer that should be given to the question whether the non-disclosure was correctly considered to be in the public interest after a weighing of all the grounds and reasons. This distinction can be illustrated by s 36, to which s 58(5) makes express reference. Section 36 refers to a subsequent, and different, question to that posed in s 58, namely, whether the Minister is satisfied that the disclosure would be contrary to the public interest. Section 36 is not concerned with whether there exists one or more reasonable grounds warranting the making of a claim to that effect. The two questions are distinct and discrete.

6. In my view, s 58(5) of the FOI Act, in terms, is concerned with the threshold issue whether there is any non-absurd or rational ground for a claim that the disclosure of the material is contrary to the public interest. Of course, it is necessary to keep in mind that the subsection must be read as a whole and that it is artificial to analyse each term out of context. The combined effect of the language of the section must be read in a reasonable manner in order to determine the true purpose of the subsection, as opposed to artificially dissecting the components of the language in question, which may destroy the sense that is sought to be conveyed. Reading the subsection as a whole, the focus is on whether there are grounds for a claim.  The focus is not on whether there are grounds that require or justify the conclusion that the non-disclosure is contrary to the public interest.  The existence of grounds for a reasonable claim that a conclusion should be reached addresses a different issue from whether the grounds, when finely balanced against all other relevant considerations, warrant the ultimate conclusion as to the public interest being reached. 

7. The task assigned by s 58(5), according to the natural and ordinary meaning of the language of that subsection, is the determination of a specific defined question. This, in turn, involves the consideration of arguments for and against that question. However, the question is confined, by the terms of the section, to the issue whether there is any non-absurd basis for a claim that disclosure is contrary to the public interest. The Tribunal is not charged under this subsection with making any final determination as to where the public interest lies. The question posed is anterior to that ultimate determination.

8. The reference to “the public interest” appears in an extensive range of legislative provisions upon which tribunals and courts are required to make determinations as to what decision will be in the public interest.  This expression is, on the authorities, one that does not have any fixed meaning.  It is of the widest import and is generally not defined or described in the legislative framework, nor, generally speaking, can it be defined.  It is not desirable that the courts or tribunals, in an attempt to prescribe some generally applicable rule, should give a description of the public interest that confines this expression. 

9. The expression “in the public interest” directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances.  There will, as in the present case, often be competing facets of the public interest that call for consideration when making a final determination as to where the public interest lies and these are sometimes loosely referred to, in my view, as opposing public interests.  In the present case, broadly speaking, the competing aspects of the public interest include the benefits conferred on the public by the transparency of government processes and the need for confidentiality in certain circumstances.

10. The expression “the public interest” is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest.  It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination.  In other instances, it appears in the form of a list of considerations to be taken into account as factors for evaluation when making a determination.  By way of example, town planning legislation frequently lists a number of factors that a local council or planning body is required to take into account when making a determination, with a concluding consideration being a generalised reference to the public interest and the circumstances of the case.

11. The indeterminate nature of the concept of “the public interest” means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination.  In this respect, the well-known observations of Deane J in Sean Investments Pty Limited v McKellar (1981) 38 ALR 363 at 375 are apposite. In that case, his Honour was considering the different process of determining the relevant considerations to take into account in the exercise of a broad statutory discretion, however, the approach is relevant in the present case. His Honour said:

    “In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.”

12. The public interest is not one homogenous undivided concept.  It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides.  This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that “the public interest” can be ascertained and served.  In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others.  In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable.  For example, in some contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.

13. In the context of freedom of information, the notion of the public interest was helpfully considered by the Appeal Division of the Supreme Court of Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63 at [75], where Kaye, Fullagar and Ormiston JJ said:

    “The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members.  The interest is therefore the interest of the public as distinct from the interest of an individual or individuals: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 480, per Barwick CJ.   There are … several and different features and facets of interest which form the public interest.”

14. The expression “the public interest” was also the subject of consideration by Lehane J in Botany City Counsel v Minister for Transport and Regional Development (1996) 137 ALR 281 at 308, again in an administrative law context, where his Honour said:

    “I think it is clear that the principal public interest to which the second respondent was giving expression was an interest in … the equitable or fair distribution of the noise necessarily associated with an airport close to the centre of a large city; and his view was that that public interest required dispersal of the noise rather than its concentration in a narrow corridor. … Others might … take a different view of what the public interest required.  A decision between competing views is not, however, a matter for the court.  What the court has to decide is whether the second respondent’s reasons disclose reviewable error, particularly, a misconstruction on his part of the expression ‘the public interest’.   In my view they do not.”

15. His Honour also referred to the statement by Mason CJ, Brennan, Dawson and Gaudron JJ in O’Sullivan v Farrer (1989) 168 CLR 210 at 216 that:

    “Indeed, the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable …’”

    See also Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492 at 505 and In re Thompson (1964) Tas SR 129 at 143-144.

16. Applying the above principles to the present case, one example of a facet of the public interest that is relevant is the desirability of preserving confidentiality of intra-governmental communications prior to making a decision. Another, and obviously competing, facet of the public interest is the desirability of transparency in public administration. If there is a ground that is not irrational, absurd or ridiculous for a claim that the first-mentioned facet of the public interest would not be served by disclosure, then that alone is sufficient to satisfy the requirements of s 58(5). It is not necessary in order to decide that limited question that the decision-maker should consider and weigh all the other facets, and the grounds which may reasonably support each of those facets, in order for s 58(5) to be satisfied.

17. In other words, it is not necessary at the s 58(5) stage of consideration to evaluate anything beyond the question whether the ground raised to support the particular facet of the public interest is irrational, absurd or patently untenable. There is a clear distinction drawn in the FOI Act between the question raised in s 58(5) and this subsequent question to be determined. In my view, the appellant’s submissions blur this distinction and seek to elide the latter issue into the question posed by s 58(5).

18. I have had the benefit of considering the detailed reasons of Conti J in his dissenting judgment in this matter.  His Honour makes reference to the decision in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393. In my view, that case does not assist the appellant in the present proceeding because the question that the Conciliation and Arbitration Commission was required to address was the final issue whether “further proceedings are not necessary or desirable in the public interest”. This is made clear at 395, where Mason CJ, Wilson and Dawson JJ state:

    “In this case the Commission was called upon to weigh in the balance two competing public interests.  One was the importance of settling in its entirety the dispute … The other was the importance of leaving the dispute to be resolved by the State tribunal despite the limitations on its jurisdiction.”

    It was in that context that their Honours stated that a determination of where the public interest lies depends on a balancing of competing public interests, which is a question of fact and degree. This is distinguishable from the present case in an essential respect, as the question with which s 58(5) is concerned is the anterior and distinct question whether reasonable grounds exist for a claim that disclosure is contrary to the public interest.

1. Justice Conti also refers to the generalised observation of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 381-382 that:

   “Even so, the nature of commercial broadcasting and the grant of power … on the basis that ‘it appears … that it is advisable in the public interest’ indicate that the considerations which may be taken into account in determining whether a licensee is not or is no longer fit and proper are not closely confined.”

   There can be no argument with this generalised observation, however, all it says is that the concept of the public interest allows a wide range of factors to be taken into account in circumstances where they are necessary to determine the ultimate question of what decision is in the public interest.  It is not concerned with the question whether there is any basis for a claim that something is contrary to the public interest.

2. In my view, in the present case, there has been no error of law by the Tribunal in approaching the matter on the basis that it is not necessary when considering s 58(5) of the FOI Act to carry out the process of balancing or weighing all aspects of the public interest or indeed to decide whether or not that ground will ultimately prevail.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             2 August 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 70 of 2005

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	MICHAEL McKINNON APPELLANT
AND:	SECRETARY, DEPARTMENT OF THE TREASURY RESPONDENT

JUDGE:	TAMBERLIN, CONTI AND JACOBSON JJ
DATE:	2 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

CONTI J

Introduction

1. I acknowledge the assistance provided by Jacobson J in his Honour’s analysis of the circumstances and legal principles giving rise to the issues submitted for determination on this appeal, in relation to which Tamberlin J has signified his concurrence.  The conclusions which I have reached would have required the remission of the proceedings to the Administrative Appeals Tribunal for redetermination according to law.  The submissions presented to the Court on behalf of the appellant (in his capacity as Freedom of Information Editor of The Australian newspaper), both orally and in writing, were more lengthy and comprehensive than those of the Treasurer (represented of course for the purpose of the litigation by the respondent Secretary), and I have found it to be both necessary and appropriate to reproduce the substance thereof in detail in order to explain the basis for the dissenting views which I have reached.  I should record that an amended notice of appeal was presented to the Court at the commencement of the hearing of the appeal without objection, which has contributed to the framework of the issues of construction arising at the instance of the appellant, each issue involving the operation of the Freedom of Information Act 1982 (Cth) (‘the FOI Act’). Jacobson J has framed six issues as arising on the appeal and has presented the same in terms of five questions which his Honour has derived from the appellant’s extensive written submissions. I will address essentially the same questions and answers in sequence, but will adopt perhaps more closely the framework of the headings to the appellant’s submissions.

   The first purported question of law framed by the appellant – whether the Tribunal misdirected itself concerning the test of s 58(5) of the FOI Act as to whether there existed reasonable grounds for the claim that disclosure of the subject information would be contrary to the public interest

2. By way of elaboration of this first and most critical question arising on the appeal, the submissions of the appellant framed three issues arising as to the operation of s 58(5) of the FOI Act, in or to the following effect:

   (i)whether s 58(5) of the FOI Act required the Administrative Appeals Tribunal (‘the Tribunal’), in the course of its determination of the questions the subject of the appellant’s challenge, to balance the material aspects of the public interest postulated in the proceedings, and hence to mandate the balancing of the evidence tendered by the Treasurer relating to the public interest that the disclosure of confidential information adduced by the Treasurer would be contrary to the public interest within s 58(5), against the evidence tendered by the appellant, effectively on the behalf of The Australian daily newspaper, that such disclosure to the public would be in the public interest;

   (ii)whether s 58(5) of the FOI Act required the Tribunal to undertake a so-called ‘2-stage approach’, comprising a threshold test of rationality in relation to each of the ‘generic’ reasons or grounds for non-disclosure propounded by the Secretary, followed by an examination of the documentation tendered in evidence, in order to determine whether those reasons or grounds could be linked to material aspects of the public interest; and

   (iii)whether in any consideration of issues arising before the Tribunal as to the existence of reasonable grounds under s 58(5) the FOI Act, the evidence of a qualified expert witness on behalf of the Treasurer, whose opinion is not demonstrated to be unreasonable, operates to satisfy in favour of the Treasurer the statutory test, without any requirement for the balancing of that evidence against the countervailing evidence adduced adversely to the existence of any such reasonable grounds.

3. The Treasurer is of course a Minister within the purview of the FOI Act and s 58 in particular. An affirmative answer to the question so framed in (i) above reflects the thrust of the appellant’s principal submissions on the appeal. Resolution of the issue raised in (i) above in favour of the appellant would effectively resolve the issues raised in (ii) and (iii) above adversely to the Treasurer. Those issues, if resolved in favour of the appellant raise questions of law concerning the true construction of the FOI Act, and s 58(5) in particular, and the operation of the FOI Act upon the undisputed facts and circumstances which have relevantly occurred, and which I will recount in the course of these reasons. The resolution of those issues does not involve the making of an evaluation comprising ‘… essentially one of fact or degree, and by its very nature it will be something that is not easily susceptible to judicial review’ (Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 at 124).

4. The notion of balancing of varying considerations, points of view and interests bearing upon the resolution of an issue normally involves or requires a function or exercise of weighing or adjusting differences.  It is reflected largely by the appellant’s framework for instance of the issue appearing in the first paragraph (numbered 1A) of the amended notice of appeal, reading as follows:

   ‘Whether, on its proper construction, the duty in s 58(5) of the Act that the Tribunal determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest requires the Tribunal to:

   a.address and give proper and genuine consideration to all the relevant evidence or other material before it bearing upon the question whether such reasonable grounds exist, and not rely merely on past decisions of the Tribunal and/or an opinion of one witness not demonstrated to be unreasonable; and

   b.address and give proper and genuine consideration to competing aspects of the public interest as raised in the evidence or arguments before it.’

5. The appellant’s primary case on the appeal involves and relates to the omission of the Tribunal to undertake the exercise of balancing of the competing aspects of the public interest adduced in evidence at the Tribunal hearing, being an exercise said to be inherent in and intrinsic to the operation of s 58(5) of the FOI Act. In any evaluation of the appellant’s case, and of the authorities to which the Court was referred in the course of counsels’ respective submissions, it is to be borne in mind that the issues presented on the appeal do not arise directly in relation to what may be described as a document the subject of any one or more of ss 33 to 35 of Part IV of the FOI Act, being provisions which relate successively to matters or subjects, first as to national security, defence, international relations, secondly as to relations of the Commonwealth with the States, thirdly as to Cabinet documents and fourthly as to Executive Council documents. The issues here arising relate solely to so-called Internal working documents the subject of s 36 of Part IV of the FOI Act. That last statutory category here arising for consideration concerns a document which 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, disclosure of which would be contrary to the public interest. Some reported decisions relating to ss 33 to 35 of the FOI Act were cited as bearing upon the operation of s 36. Differences in the language used in the various sub-sections of s 36 need nevertheless to be kept in mind.

6. The respective submissions of the parties upon the first question of law here arising are described in summary in the reasons of Jacobson J as referrable to ‘[t]he proper construction of s 58(5)’. I have had the benefit of those reasons before writing this dissenting judgment. The operation of s 58(5) was described by the appellant as necessarily falling to be addressed by the Tribunal, not by any process involving so-called ‘one dimensional considerations’, but rather by way of a comprehensive analysis in the nature of a weighing or balancing exercise, said by the appellant to be necessarily required as part of the Tribunal’s statutory function of review. That weighing or balancing exercise, so the appellant contended, if it had been implemented by the Tribunal, would have necessarily and intrinsically involved the Tribunal in the deliberative task of evaluating the competing facets of the public interest involved in any consideration of issues as to non-government access to information in the possession of ministers, departments and public authorities, being here of course information bearing upon the two subjects of so-called income tax bracket creep and the first home owner’s scheme. Both subjects have apparently occupied at least the financial and political segments of the media for some time. The need for adoption of that weighing or balancing approach was contended by the appellant to inhere in the nature and extent of the process of determination of the existence or otherwise of reasonable grounds for resolution of the certified claim of the Treasurer that the disclosure of the document would be contrary to the public interest, within the scope of operation of s 58(5) of the FOI Act.

7. The operation of s 58(5) for which the Treasurer contended, and which the Tribunal upheld, would confine the scope of the Tribunal’s role under the FOI Act to the determination of the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest to a basis or notion of public interest supportive of the Treasurer’s decision adverse to disclosure of a document, irrespective of the existence of competing grounds that disclosure of the document would not be contrary to the public interest, but instead would advance the public interest.  The competing operation of s 58(5) for which the appellant hence contended was that the Tribunal’s obligation of determination the subject of s 58(5) inherently requires the Tribunal, in any competing evidentiary context such as here existed of substantial competing and conflicting expert testimony, to weigh and balance those competing theses as to rationality in order to reach the determination for which s 58(5) stipulates. Put another way, the appellant contended that the notion of reasonable grounds inherent in s 58(5) was not here to be determined in the vacuum of the Treasurer’s evidence adduced as to rationality, irrespective of the rationality of evidence tendered to the Tribunal in denial of the Treasurer’s evidence as to reasonable grounds.  Thus the appellant’s contention was that the existence or otherwise of reasonable grounds is not to be determined by the Tribunal a vacuum of ministerial evidence of rational grounds. 

8. I find myself unable to accept, as an exercise of statutory interpretation, the viability of what I would describe as the Treasurer’s confined approach to decision-making by the Tribunal purportedly pursuant to s 58(5) of the FOI Act. In the present case, that approach was afforded expression by the Tribunal’s dismissal from ultimate consideration any balancing of the rationality of the grounds established by the Treasurer’s evidence from the rationality of the grounds established by the appellant’s evidence, in order to arrive at the statutory determination dictated by the subsection. By reason of the course which the Tribunal took in its approach to the Tribunal’s decision-making, the Treasurer paid no ultimate regard of significance to the evidentiary expert testimonies adduced by the appellant before the Tribunal, once his Honour had determined that the Treasurer’s testimonial evidence was sustainable and rational per se, and thus in an evidentiary vacuum. 

9. In the proceedings before the Tribunal, the appellant tendered an impressive array of testimony, including testimony of an expert nature, directed to ground(s) of public interest.  That evidence was largely and essentially inconsistent with the Departmental evidence adduced by the Treasurer per medium of officers of the public service, being principally that of Mr Murray, the Executive Director, Fiscal and Corporate, of the Treasury. The two broadly based subjects which I have identified, and which were addressed by the contentious testimonial evidence placed before the Tribunal, unquestionably comprised and involved matters the subject of public interest. The testimonial evidence adduced by the Treasurer, in relation to those two issues, was shown by the appellant not to have been weighed or tested by the Tribunal in the course of its decision-making by reference to and against the countervailing expert evidence tendered by the appellant upon those two issues, at least for the purpose of or as a step in or aspect of the Tribunal’s determination on review of the Treasurer’s s 36(3) decision. The different and opposing ground of public interest to which the Treasurer’s s 36(3) certificate gave expression was thus held by the Tribunal to satisfy the description reasonable… for the claim that the disclosure of the document would be contrary to the public interest prescribed by s 58(5) of the FOI Act. That decision was accordingly made by the Tribunal upon the footing of the departmental testimonies alone, irrespective of the cogency of the competing testimonies of the appellant’s highly qualified witnesses, did without first undertaking any weighing or balancing exercise in order to resolve which testimonies most appropriately reflected the existence of reasonable grounds, or the rationality of grounds for non-disclosure of the documents in the public interest. 

10. Keys to the operation of s 58(5) of the FOI Act lie in the framework of the preceding subsecs (1) and (3) of s 36, both of those subsections referring of course to the public interest. Moreover s 36(3) contains the expression subject to the operation of Part VI, which Part of the FOI Act contains the critical reasonable grounds provisions of s 58(5). It is thus subject to the operation of Part VI that the disclosure of a document covered by a certificate signed by a Minister purportedly in conformity with s 36(3) is conclusively… contrary to the public interest, and hence an exempt document (that is exempt from public disclosure) within the purview of s 36(1). A Minister’s satisfaction formed pursuant to s 36(3) is rendered subject to the Tribunal’s review of that satisfaction under the auspices of s 58(5), if the review is requested by an applicant.  Hence, if an applicant for review so requests, the Tribunal must determine the question whether there exist reasonable grounds within the scope of s 58(5). The Treasurer acknowledged that the onus of establishing whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest is placed upon the holder of the office of Secretary (see in that regard s 61 of the FOI Act), being an onus found by the Tribunal below to have been duly discharged by the Treasurer. It would be of little comfort to a s 58(5) applicant to be afforded the benefit of the statutory onus cast on a Minister in circumstances where the Minister’s decision cannot be subjected to any balancing process of the kind for which the appellant contends.

11. The text of the decision of the President of the Tribunal the subject of the present appeal at [77] was therefore that ‘… without determining whether it is my opinion or not, applying the approach I have stated that I will adopt, I conclude that reasonable grounds exist for the claim that the disclosure of each of the documents would be contrary to the public interest’. In my opinion, and as the appellant has duly submitted, that conclusion was not open to have been reached, according to the true construction of s 58(5), without his Honour having undertaken the task of determining whatever grounds existed, being not just those advanced by the Treasurer to the Tribunal in support of the proposition that the disclosure of the document would be contrary to the public interest within the purview of s 58(5), and which his Honour found to be the case per se and standing alone, but also those grounds advanced to the contrary of or at variance with that proposition, and without having weighed and balanced those respective grounds in relation to and against each other in order to determine whether reasonable grounds existed in favour of the claim for non-disclosure. In short, the appellant’s case was that the Tribunal erred in law by not implementing what it contended were the dictates of s 58(5).  The President eschewed however the need for undertaking that deliberative function of weighing and balancing, in light of the evidence placed before him by the Treasurer, and did so irrespective of and notwithstanding the nature and force of the countervailing evidence provided by the appellant to the Tribunal. His Honour gave reasons for adopting that approach to his decision-making pursuant to s 58(5). The Treasurer articulated and supported that approach of the Tribunal in the course of submissions of his senior counsel made to the Full Federal Court on the present appeal.

12. The task of resolving competing interests in relation to freedom of access to information upon subjects of public interest, such as was here involved at the Tribunal hearing, would doubtless have been a formidable one for the Tribunal to undertake, given the conflict of public interest in relation to any entitlement to such access by the media (such as The Australian national daily newspaper standing behind the challenge below and on this appeal), and the extent of opposing expert testimony adduced by the respective parties upon the issue whether there exist(ed) reasonable grounds for the claim [of the Treasurer] that the disclosure would be contrary to the public interest. It was information concerning prospective legislative or regulatory reforms of established interest and concern to members of the public, on the one hand, and concerning preservation of the confidentiality of that information within government until its manifestation in any subsequent Government executive decision-making, on the other hand. There could be no issue in principle that media operations undertaken and media services provided in a free and democratic society have an inherent entitlement of access to information of public interest and concern, subject only to such lawful legislative, regulatory and common law constraints to the contrary as are delineated with clarity and certainty. The framework of ss 36 and 58 of the FOI Act, and the statutory context in which they appear, reflect a complex task of interpretation of potential, if not inevitable, controversy. It is understandable that the operation of Parts IV and VI of the FOI Act, and ss 36(3) and 58(5) respectively thereof in particular, would have the potential for controversy of the scope and dimension such as here arose before the Tribunal, both in terms of evidence and legal principle. So much is testified by the length and complexity of the Tribunal’s reasons for decision.

1. The operation of s 58(5) of the FOI Act for which the appellant contended, and which falls for reconsideration on this appeal, was submitted by the appellant to be relevantly analogous to search warrant provisions of criminal legislation the subject of scrutiny for instance in George v Rockett (1990) 170 CLR 104. In unanimous reasons for judgment, the High Court there referred at 112-113 with evident approval to the observations of Fox J of this Court in Reg v Tillett; ex parte Newton (1969) 14 FLR 101 at 106, where his Honour adopted the following observation appearing in the reasons for judgment of Edwards J in Bowden v Box [1916] GLR (NZ) 443 at 444 in respect of a similarly worded provision:

   ‘… It is impossible to construe this enactment as an authority to a justice to issue a search warrant upon the oath alone of a constable or of any other person that “there is reasonable ground to believe that liquor is sold”, etc.  So to hold would be to hold that the justice may discharge the judicial duty cast upon him by acting, parrot-like, upon the bald assertion of the informant.’

   Hence the enunciation by the High Court at 112 in George v Rockett of its interpretation of the operation of legislation in that field of the general law, involving as it did the determination as to the existence or otherwise of a reasonable ground, to the effect that ‘… it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist’. Their Honours concluded at 113 that ‘[i]t follows that the issuing justice needs to be satisfied that these are sufficient grounds reasonably to induce that state of mind’.

2. The present Full Court was reminded of the traditional approach of the general law, in the context of susceptibility to curial review of the exercise of statutory power conferred upon the executive, as to the operation of statutory expressions such as or similar to ‘has reasonable cause to believe’.  Despite the purported degree of subjectivity involved in such contexts of statutory conferral of power or authority, there is an established principle, common ground in the present appeal, that ‘[t]he existence of this reasonable cause and of the belief founded upon it is ultimately a question of fact to be tried on evidence’ (Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1000 per Lord Wilberforce). Necessary for operation or application of that principle is however the need for determination of the correct construction of the relevant statute or regulation concerning its application to particular circumstances and governing the nature and scope of the decision-maker’s function. Counsel for the respondent Secretary submitted nevertheless that no question of law was here relevantly involved for resolution by the Full Court. The Full Court’s attention was drawn to dicta in Birdseye v Australian Securities and Investments Commission (2004) 76 ALD 321 at 325, to the effect that a question of law to be raised on an appeal from the Tribunal ‘should be stated with precision as a pure question of law’ (per Branson and Stone JJ at [18]), and to the well known dictum of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40. It is not however in my opinion reasonably to be disputed that critical questions of law here arise as to the true construction of the provisions of the FOI Act I have already identified, and their application and operation in relation to the controversial circumstances here involved.

3. The appellant submitted that the Tribunal did not pursue the requisite comprehensive approach, reflected in the authority to which I have referred, to what the appellant described as the ultimate conclusions that were involved below.  That shortcoming was said to be initially reflected in the Tribunal’s incorrect paraphrase of an aspect of the ratio of George v Rockett, that purported paraphrase being that ‘a person whose state of mind was reasonable even though other persons might come to different states of mind which were also reasonable’, and further because of the Tribunal’s incorrect description of the Legislature’s ‘… reduced role for the Administrative Appeals Tribunal when acting under subsec 58(5)’, which was described by the appellant as misconceived.  Those misconceptions were said to have underpinned the President’s ensuing explanation at [23] of the task which confronted him being that ‘[i]n accordance with the above I propose to approach my task by asking whether the facts established before me are sufficient to support the claim that disclosure would be contrary to the public interest in the mind of a person guided by reason’, the latter expression originating also in George v Rockett.  The hypothetical ‘person guided by reason’ whom his Honour exemplified, was at least principally the Treasurer’s leading witness Mr Murray, whose testimony in its essence was adopted to the exclusion of the appellant’s expert witnesses whom I will later identify, though not by reason of any weighing or balancing of Mr Murray’s testimony with the contrary testimonies of those expert witnesses.  The basis for the principle explained by the President of the Tribunal in his reasons below was further submitted by the appellant to be incorrect, notwithstanding the same having been formulated by reference to at least two earlier Tribunal authorities identified in the following further passage of his Honour’s reasons for decision at [22]:

   ‘The way in which the test has been applied in practice can be seen in some lines of reasoning of Tribunal members.  President O’Connor J included this statement in dealing with one document in Cleary at 222: “…[I]t is difficult to conclude that there is no reasonable basis for relying on this ground or that it is irrational, absurd or ridiculous...”

   His Honour then cited Deputy President McMahon’s decision in Aldred and Department of the Treasurer (1994) 35 ALD 685 at 691:

   ‘It is, as Deputy President Todd observed, a “heavy thing for the tribunal to reject a certified claim”.’

   The President’s above observation thus also included reference to re Cleary and Department of the Treasury (1993) 31 ALD 214, and additionally to re Porter and Community Services and Health (1988) 8 AAR 335, both being Tribunal decisions, the former of O’Connor J as President and the latter of Deputy President Todd. It is appropriate that I refer in temporal sequence to those as well as other mainly Tribunal decisions cited in the course of the submissions of the parties on the controversial issue as to the applicable test, and extract what appear to me to be relevant passages in those decisions.

4. A convenient starting point for consideration of authorities, inclusive of the Tribunal decisions discussed or referred to by the parties, bearing upon the critical controversy arising on the appeal, that being the need or otherwise for the balancing of reasonable grounds for the claim that the disclosure is in the public interest in performing the review function enshrined in s 58(5), is that of re Waterford and Treasurer of Commonwealth of Australia (No 2) (1985) 8 ALN N37 at N44, where Deputy President Todd observed relevantly as follows:

   ‘… Nor does s 58(5) require a balancing between the grounds for a claim that disclosure would be contrary to the public interest and the grounds for a claim that disclosure would be in the public interest: All that s 58(5) requires is that there exist reasonable grounds for the claim that disclosure would be contrary to the public interest.  The balancing aspect of s 58(5) only enters at the stage of assessing whether or not something is in the public interest.  Having found that some of the respondent’s arguments support the claim that disclosure would be contrary to the public interest, and that those arguments taken together are weighty enough to constitute reasonable grounds for the claim to that effect, it follows that the document is an exempt document.’

   It is difficult conceptually to rationalise and in practice to apply the distinction, in terms of ‘balancing’, which the above passage postulates. 

5. Incidentally, the Deputy President cited with approval in Waterford what Morling J had earlier said in re Peters and Department of Prime Minister and Cabinet (No 2) (1983) 5 ALN N306 at N307, as follows:

   ‘… the question is not whether this Tribunal holds that opinion.  Rather the question is whether reasonable grounds exist for the claim that disclosure would be contrary to the public interest.’

   That dictum is not however foreign to the notion of balancing of differing expert opinions for which the appellant here contended.  Indeed, earlier in his reasons for decision, Morling J said ‘[i]n my opinion the public interest in grating Dr Peters access to the documents which have so far not been disclosed to him is far outweighed by the public interest in preserving confidentiality to the advance tendered to the Minister as to the manner in which the Senate question should be answered’, being language tending to reflect the appellant’s advocacy of the notion of balancing.  That principle of construction which the appellant so advanced may be restated to a more explicative extent as follows: whether an assessment as to the existence or otherwise of reasonable grounds for a claim that disclosure of a document would be contrary to the public interest implicitly or inherently requires the giving by the decision-maker of proper and genuine consideration to all relevant material bearing upon the existence or otherwise of any such reasonable grounds, and to that end the adoption, where reasonably open or appropriate so to do, of a balancing exercise on the part of the decision-maker of or in relation to any differing propositions of the private litigant and the Minister.

6. The issue of the construction of s 58(5) adopted by Deputy President Todd in Waterford was addressed in his subsequent reasons for decision in re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589 at 594-595. Though he there referred to an argument supporting non-disclosure in the public interest ‘weighing enough’, and as appearing ‘reasonable standing on its own’, he eschewed ‘simply introduc[ing] by the back door the balancing exercise which applies in relation to s 36(1)(b) in a case where no certificate has been issued’. Subsequently again in Porter at 338, Deputy President Todd made the following observation, to which reference appears in the passage of President Downes’ reasons above extracted:

   ‘To be “reasonable”, it is requisite only that they be not fanciful, imaginary or contrived, but rather that they be reasonable; that is to say based on reason, namely agreeable to reason, not irrational absurd or ridiculous… It follows that it is a heavy thing for the Tribunal to reject a certified claim.’

   Downes J cited in purported support of Deputy President Dodd’s approach the dictum of Morling J in re Peters (ante).

7. The approach of Mr Todd as to rejection of the requirement for balancing was purportedly adopted by the President of the Tribunal (Hartigan J) in re MacPhee and the Department of the Treasury (1989) 11 AAR 166, in a context where the Secretary of the Treasury had certified, pursuant to s 36(3) of the FOI Act, that the release of certain documents would be contrary to the public interest. After referring at 173 to Mr Todd’s statements relevantly in Rae, Hartigan J thereafter concluded as follows (at 173-174):

   ‘I have come to the view that in approaching cases where the applicant requests a review of a decision to issue a conclusive certificate the question for the Tribunal is whether reasonable grounds exist to support the certificate.  If reasonable grounds do exist to support the claim then that is the end of the matter despite the fact that there may be other grounds relied upon, the reasonableness of which may be doubtful.  Reasonable grounds are those based on reason…It is not enough to show that some other reasonable person could have concluded that other grounds could not have supported the issue of the certificate.  What may be the conclusion of one reasonable person does not of itself exclude all other conclusions from the realms of reasonable possibilities…

   It follows from what I have said that the Tribunal should not attempt to balance the grounds supporting the certificate against grounds supporting the contention that the issue of the certificate is unreasonable.  This style of approach is akin to full merits review.  Neither should the Tribunal approach the issue of whether there are reasonable grounds for the issuing of a certificate on the basis that such grounds can be presumed to be in existence unless it can be shown that they are in fact grounds no reasonable man could consider reasonable or they are grounds no reasonable man could rely on in reaching a decision to issue a certificate.  The words of s 58(5) are clear – the Tribunal must simply determine if reasonable grounds exist.  As I have said reasonable grounds are those based on reason. 

   …

   To adopt an interpretation of s 58(5) that allows the Tribunal to enter into an examination of all the grounds, pro and con, is necessarily contrary to the clear intent of the legislation both in setting up the process under which persons may make application for access to documents that might otherwise be not possible or ignored and in providing a system, subject to review, for the grant or refusal of access to documents and for the certification of some documents such that the national interest is protected by refusing persons access.  The Tribunal’s function under s 58 once called upon to review a decision to refuse access to a document in respect of which a certificate has been issued pursuant to s 36(3) is simply to determine one question.  That is, do reasonable grounds exist for the claim that disclosure would be contrary to the public interest…’

   I have difficulty in rationalising Hartigan J’s notion to the effect of ‘reason’ standing on its own or in a vacuum, without being susceptible to correction, modification or qualification when balanced against other competing or putative reasons for a proposition, a finding, a conclusion or a deduction. It is I think foreign to and at odds with the s 58(5) expression determine the question whether…’. 

8. I have already drawn attention to the present Tribunal’s reference to the decision of a former President of the Tribunal (O’Connor J) in Cleary, which is the next Tribunal decision in sequence.  At 216, the following appears:

   ‘For par (b) [of s 36(1)] to apply, it is generally necessary for the tribunal to find that disclosure would be contrary to the public interest.  In the absence of a conclusive certificate, this requires a balancing of competing interests including the public interest in the right to know… With the issuing of a conclusive certificate, the decision that disclosure is contrary to the public interest has been pre-determined by the minister.  However, as the tribunal has before it an application for review of the decision refusing to grant access to the documents, the tribunal is required by s 58(5) to determine whether there exist reasonable grounds for the minister’s decision that disclosure of the documents is contrary to public interest.’

   Why, it may fairly be asked, is the so described pre-determination of the Minister circumscribed to the extent postulated by O’Connor J when he or she undertakes his or her s 36(3) function. Her Honour said further at 220 that ‘[t]he test to be applied, once a conclusive certificate exists, is clear’, and reference was thereupon made to dictum of Davies J in the leading judgment of the Full Federal Court in Department of Industrial Relations v Burchill (1991) 33 FCR 122 at 126, where his Honour described the passage appearing at page 338 of the reasons for decision of Deputy President Todd in Porter which I extracted above at [38] as ‘adequately convey[ing] the concept’. 

9. The Treasurer adopted on the present appeal the view of the Tribunal, appearing at [21] of its reasons for decision below, that where the High Court referred in George v Rockett at 112 (infra) to the requirement for ‘… the existence of facts which are sufficient to induce that state of mind in a reasonable person’, it thereby postulated ‘a person whose state of mind was reasonable, even though other persons might come to different states of mind which were also reasonable’, and that so much reflected the meaning which the President thought the phrase ‘reasonable grounds’ has in s 58(5). It is however of importance to an appreciation of the appellant’s submissions on the present appeal that the appellant offered no quarrel with that postulation per se, so long as the original decision-maker engaged in the forensic exercise of balancing the competing views in evidence as to the existence or otherwise of reasonable grounds, and did so in a meaningful way before concluding upon his or her decision-making. The Treasurer sought to support the view of the Tribunal expressed at [21] to the effect that ‘[t]he form of s 58 shows that the legislature intended a reduced role for the Administrative Appeals Tribunal when acting under subs 58(5)’, being a role which apparently would not require the balancing of competing views as to reasonable grounds, once the decision of the Minister under s 36(3) was assessed to be reasonable per se.  One difficulty which the President’s approach encounters is identification of the benchmark for the process or objective determination as to the existence of reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest, being an identification or process falling to be made, upon the Treasurer’s thesis, notwithstanding the existence of other grounds of public interest (or for that matter a single ground of public interest) available to be weighed by way of a forensic balancing exercise.  Rationality or the quality of being rational, the possession of reason, or the reaching of a rational or reasonable view, in accordance with the George v Rockett thesis, is not to be objectively attained or achieved, according to the submissions of the appellant which I would favour, by a decision-maker exercising a statutory function of review in the absence of his or her balancing (or weighing) objectively differing and competing views not unreasonably open to be adopted. 

10. The Treasurer submitted that the approach taken by the President of the Tribunal below adversely to the appellant was further supported at least implicitly by the decisions of this Court, not only in Burchill, but also subsequently in Australian Doctors’ Fund Ltd v Commonwealth of Australia (1994) 49 FCR 478 (Beazley J). I will address that submission shortly. Incidentally, as a result of research undertaken subsequent to the hearing by senior counsel for the respondent Secretary, it was stated that the judgment in Burchill having been delivered on 11 December 1991, the same could not have influenced the drafting of the amendments made subsequently to Part VI of the FOI Act, including those made in particular to s 58(5) by Act No 4 of 1992, which substituted a new paragraph (b) of sub-section (5A) of s 58 reading as follows:

    ‘(b)     in a case where the certificate was given under subsection 33A(4):

    (i)cause that document of an agency to be an exempt document for a reason referred to in subsection 33A(1); and

    (ii)not cause that document of an agency to be a document containing matter the disclosure of which under this Act would be, on balance, in the public interest.’

    I would observe that subparagraph (ii) above contains the words the disclosure of which under this Act would be, on balance, in the public interest.  Neither party seemingly attributed any significance, one way or the other, to the inclusion of the words on balance in that amended section.

1. The issue arising in Burchill concerned the operation of s 58(4) of the FOI Act in relation to Cabinet documents exempt from disclosure under pars (c) and (d) of s 34(1). As the presiding judge of the Full Federal Court in Burchill, Davies J referred with approval to the test framed by Deputy President Todd in Porter, and observed at 125 that s 58(4) posed for the Tribunal the question ‘whether there are reasonable grounds for the claim that the document meets the criteria for exemption’. At 126, his Honour cited the dictum of Starke J in Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155 that ‘[the Administrative Appeals Tribunal] has no authority to decide whether the finding [certificate] is correct, but only whether there is any material upon which the tribunal [certifier] could reasonably so find…’. In that regard, the relevant words of s 58(4) are the Tribunal shall… determine the question whether there exist reasonable grounds for that claim; perhaps significantly, no reference appears in s 58(4) to the public interest, in contrast to the case of s 58(5). Jenkinson J focused his concurring reasons at 127 to the effect that ‘… on the findings of the [AAT]… the only conclusion legally open to the Tribunal was that reasonable grounds existed at the date of its determination for the claim that the document in question was an exempt document by virtue of the operation of s 34(1)(c) of the [FOI Act]’. Ryan J rejected what he described at 133 as ‘the attractively presented argument… that s 58(4) of the FOI Act is concerned with a claim to be entitled to rely on the provisions of the FOI Act which exclude or limit rights of access to exempt documents; in other words, that it erects a test of whether it is reasonable in all the circumstances to maintain that claim’. It is I think apparent that any requirement for adoption by the Tribunal of a balancing exercise, prior to determining whether there exist reasonable grounds for the claim within s 58(4), as here advanced by the appellant in relation to the operation of s 58(5), was not presented for debate, and thus was not considered, in Burchill, though as I have said, the two subsections do not impose the same test for the Tribunal’s determination, thereby rendering Burchill distinguishable at least for that reason. 

2. The issue in Australian Doctors’ Fund arose in the context of a conclusive certificate signed by the Minister for Health under the auspices of s 36(1)(a) of the FOI Act, and involved the requirements of s 58(5) thereof which the Tribunal there below had found to have been satisfied. The applicant for relief had been refused access under the FOI Act to certain correspondence between the Minister for Community Services and Health and the Treasurer concerning the ruling of the Deputy Commissioner of Taxation that contributions to the medical practitioners’ fund there involved were tax deductible, being a ruling which had later been reversed. Beazley J (presiding as a single justice of the Federal Court) observed at 484 that ‘[i]n undertaking a review under s 58(5), the Tribunal is not concerned with balancing differing facets of the public interest’, and further at 489 that ‘[t]he Tribunal was saying no more in par 24 than it was not its function under s 58(5) to determine or to balance different aspects of the public interest, a task which the section does not permit’. Under the heading ‘[f]ailure to have regard to all the evidence’, her Honour referred at 492 to the limited scope of the applicant’s submissions in that case, in the following context:

   ‘Counsel for the applicant further submitted that the Tribunal failed to have regard to all of the evidence before it which strongly suggested that the documents in question had influenced the decision of the Deputy Commissioner of Taxation…

   The manner in which the Tribunal fulfils this obligation depends upon the circumstances of each case.  A mere failure to refer to a particular matter or document does not of itself amount to an error of law… there is no reference in the Tribunal’s reasons to the other four documents referred to in support of this ground… [t]he material in the documents is clearly relevant to the background of the matter… None of the matters contained in the documents in question were material facts upon which the Tribunal was required to make a finding as to whether there exist “reasonable grounds” for the claim that disclosure of the documents subject of the Minister’s certificate was contrary to the public interest.  Accordingly I am of the opinion that the failure of the Tribunal to make any reference to them in its Reasons for Decision does not involve an error of law.’

3. It was submitted by the appellant in the present appeal that ‘in so far as that decision stands contrary to what is put by the appellant here, namely as to the need for the decision-maker under s 58(5) of the FOI Act to undertake a form of balancing exercise as an essential part of the reasoning for his or her decision, the authority relevantly of Australian Doctors’ Fund should be overruled’. It is evident that her Honour was not afforded the benefit of carefully framed and extensive submissions concerning the operation of s 58(5) which have been provided to the Full Court in the context of the present appeal, and that her Honour was referred by counsel essentially to earlier Tribunal decisions which I have already identified. From my review of the authorities thus far undertaken, I think that there is sufficient force in the submission of the appellant that the authority of Australian Doctors’ Fund should be formally overruled, to the extent that it may be taken, irrespective of the observations I have just made, to have rejected the principle that the decision-making of the Tribunal should involve, in circumstances such as the present involving the operation of s 58(5), the implementation of a form of balancing exercise in terms of the public interest. 

4. Consistently in any event with the principle inherent in the appellant’s submission as to the need for undertaking a balancing exercise in the course of decision-making pursuant to legislative provisions such as s 58(5), the appellant invoked as here operative and prevailing as a principle of statutory construction the following dicta of the majority judgment of the High Court (Mason CJ, Wilson and Dawson JJ) in re Queensland Electricity Commission; ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, albeit stated in the context of industrial legislation:

   ‘Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree.  In this case the Commission was called upon to weigh in the balance two competing public interests.  One was the importance of settling in its entirety the dispute initiated by the E.T.U’s log of claims.  The other was the importance of leaving the dispute to be resolved by the State tribunal despite the limitations on its jurisdiction…’

   Of course the majority judgment used above the word often, and not always, but the dicta reflects a reasonably analogous approach to the implications of legislation focused upon the public interest.  I should add for completeness that Deane J uses (at 400) the not dissimilar description of ‘weighing process’ in the course of his dissenting reasons, as may be seen below:

   ‘Their ultimate decision [that is, of the Conciliation and Arbitration Commission] to refrain from a further hearing of that part of the dispute was reached as a result of a weighing process involving a number of identified public interest considerations.  The starting point of that weighing process was not, however, either the prima facie right of the E.T.U. to insist upon the hearing of its application or the broad considerations of public interest…’

   The provision with which their Honours in Queensland Electricity Commission were concerned with was s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth), which reads as follows:

   ‘s 41(1) The Commission may, in relation to an industrial dispute:
   …
   (d) dismiss a matter or part of a matter or refrain from further hearing or from determining the dispute or part of the dispute if it appears –

   (i)that the dispute or part is trivial;

   (ii)that the dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State Industrial Authority; or

   (iii)that further proceedings are not necessary or desirable in the public interest…’

5. The foregoing dicta in Queensland Electricity Commission does not appear to have been cited or referred to in the course of any subsequent FOI Act Part VI proceedings which have taken place since delivery of that High Court judgment. Nor does it appear to have been cited in any of the Tribunal or Federal Court cases to which I have referred to above, and it was not cited to the Tribunal below. However that dicta has been cited in various authorities involving statutory use of the expression ‘public interest’.  Thus in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, it was observed by Toohey and Gaudron JJ at 381-382 that a reference to the public interest in s 88(2) of the Broadcasting Act 1942 (Cth) indicated that considerations to be taken into account were not to be ‘closely confined’.

6. I find myself unable to agree with the majority reasons of the present Full Court concerning the scope of operation relevantly of s 58(5) of the FOI Act, and I would uphold the appellant’s submissions as to error of law on the Tribunal’s part in withholding from implementation of a balancing or weighing process in the course of its decision-making as to whether there existed before the Tribunal reasonable grounds for the claim that the disclosure of the [relevant documents] would be contrary to the public interest. In that regard the appellant did cause to be placed before the Tribunal a wealth of expert testimony in support of the appellant’s contention to the Tribunal that reasonable grounds existed for his claim that disclosure of the evidentiary material adduced by him before the Tribunal was not only not contrary to the public interest but in support and in favour of the public interest. I am therefore of the view that upon the true construction of that subsection, in its context relevantly with the other provisions of the FOI Act which I have addressed, the Tribunal was obliged in principle to weigh and balance the respective testimonies of the witnesses of the appellant with those of the respondent Secretary, in particular his principal witness Mr Murray, before determining the critical s 58(5) question arising as to whether there exist reasonable grounds for the claim that the disclosure of the relevant documentary material would be contrary to the public interest. I am unable to accept that the Legislature evinced the intention that the principal issue arising for resolution by the Tribunal, pursuant to s 58(5), is to be concluded upon the footing of the Treasurer’s satisfaction and of his consequential signing of a certificate pursuant to s 36(3) of the FOI Act, and of the testimony of the Treasurer’s witnesses presented to the Tribunal, for instance here comprising principally the Treasurer’s witness Mr Murray, without the need for balancing that evidence tendered by the Treasurer against the testimonial evidence adduced by an applicant in the position for instance of the present appellant.

7. It is contemplated by s 36(3) that the conclusive certificate provisions therein stipulated take effect subject to the operation of Part VI of the FOI Act, and the duty and function relevantly of the Tribunal under s 58(5) of Part VI is that once satisfied that the document is of the kind to which paragraph 36(1)(a) applies, and if so requested by a person seeking disclosure of a document, to thereupon determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.  Hence if I may be repetitive, the existence of any such reasonable grounds would not be appropriately or effectively determined, according to the general law which I have sought to review, in the absence of an adequate exercise being first undertaken by way of the weighing and balancing of the evidence of the public interest relevantly to the contrary of the decision of the Minister the subject of review with the Minister’s evidence supportive of his or her decision. The circumstance that s 58(5) requires the Tribunal, on an applicant’s request, to determine the question whether there exists reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest, requires inherently for the Tribunal to undertake a balancing exercise in relation to and as part of its determination of the competing claims relating to the advancement and maintenance of the public interest in the course of deciding whether or not to make that determination.  Or as I have earlier suggested, a determination as to the existence of reasonable grounds inherently requires not just a proper and genuine consideration of all relevant material bearing upon the existence or otherwise of reasonable grounds, but also the adoption, where reasonably open or appropriate so to do, of a balancing exercise of and in relation to any differing proposition of the private litigant and the Minister. 

8. I therefore think that the process of determination of the question whether there exist reasonable grounds for the claim for non-disclosure, in circumstances where the Tribunal is confronted with opposition to non-disclosure, requires the weighing and balancing of the grounds for non-disclosure as allegedly in the public interest with those grounds propounded by members of the public to the contrary, in order for the Tribunal to determine the reasonableness of those grounds for non-disclosure.  The existence of reasonable grounds is thus not to be resolved or identified in the vacuum of an isolated field of consideration articulated by a Minister, untested by reasonable postulations of views and opinions available to the contrary for the purpose of the inherently requisite balancing exercise. To contend otherwise, as the Treasurer has done in lending support for the Tribunal’s decision below, would operate to deny to the statutory context and objective of s 58(5) the extent of effective operation which I think the legislation relevantly implies and indeed, requires. Rationality does not exist in a metaphysical vacuum, especially in the context of the elusive notion of the public interest, in the absence of a weighting exercise being undertaken by the decision-maker, as the test enunciated by the High Court in the context of the legislation involved in Queensland Electricity Commission which I have extracted above. Section 58(5) postulates the explicit notion of ‘determin[ing] [a] question’, not merely adopting one side or point of view where reasonable conflicting sides or views are propounded for similar resolution.

9. Accordingly I am of the view, in conformity with the submissions of the appellant, that the Tribunal misdirected itself as to the test, as prescribed by and otherwise inherent in s 58(5) of the FOI Act, as to whether there exist reasonable grounds for the claim that the disclosure would be contrary to the public interest, by withholding from its reasoning exercise a balancing or weighing of the evidence of the appellant’s expert witnesses purportedly directed to the issues of public interest arising with the evidence adduced by the Treasurer and in particular from the Treasurer’s principal witness Mr Murray. That misdirection of the governing test constituted in my opinion an error of law, and did so contrary to the submission of the Treasurer that the grounds of the subject notice of appeal did not identify any question of law, being a submission I would therefore also reject. The earlier authorities which I have cited in relation to the operation of Part VI of the Act, mainly in Tribunal contexts, fall short in their rationalisation, directly or indirectly, of the operation of s 58(5) of the FOI Act in particular. The principal issue here raised by the appellant is one

   of statutory construction, relating as it does to the correct test inherently required for the operation of s 58(5). It was not an error ‘… simply in making a wrong finding of fact’ (Waterford v Commonwealth (1986) 163 CLR 54 at 77 (per Brennan J)). I would observe in that regard that senior counsel for the Treasurer made reference in his written submissions to the circumstance that ‘ultimately [the Tribunal had] to be satisfied with respect to each document’ that reasonable grounds existed for the claims ‘… that the disclosure of the document would be contrary to the public interest’.

10. I would therefore answer in the affirmative (and thus in favour of the appellant) the first and most critical question of law framed by the appellant for resolution by the Full Court, being that appearing in subpar (i) of [22] above, and upon that basis, I would have ordered that the proceedings be remitted to the Tribunal for re-determination of that question upon the basis and in the context of the evidence already tendered to the Tribunal, and otherwise according to law.  

11. There remains for completeness the resolution, within the scope of this first and principal question arising, the related issues of statutory construction the subject of subpars (ii) and (iii) set out in [22] above.  They are issues which I think are merely supplementary to that the subject of par (i) which I have sought above to resolve.  As to the so-called ‘2-stage’ approach the subject of subpar (ii), said by the appellant to have been wrongly adopted by the Tribunal in its approach to decision-making, the same was described by the appellant in the following terms:

    ‘The first stage involved the question whether, as a threshold matter, the [Treasurer’s] seven claims in the certificates were rational or logical.  In determining that question, the Tribunal considered that it was relevant to have regard to prior Tribunal or Court decisions to see whether similar claims had been upheld.  Likewise, it was relevant to have regard to opinion evidence adduced by the [Treasurer] as to whether such claims were rational or logical.  If the threshold issue was determined favourably to the [Treasurer], the second stage of the test involved the Tribunal examining the documents in question to see if they could be linked to one or more of the 7 claims.’

12. I have already identified the Tribunal and Court decisions to which the Full Court’s attention was drawn in the course of the present appeal, in particular by senior counsel for the respondent Secretary representing of course the Treasurer. The appellant submitted that the language of s 58(5) does not indicate that any two stage test is appropriate or otherwise required for the operation of that subsection’s review process, but rather that what is to be put in place is ‘simple and straightforward’, by merely directing the Tribunal to determine the question whether there exist reasonable grounds for the claim that the disclosure of the particular document would be contrary to the public interest.  Moreover, so the appellant’s submission continued, the Treasurer’s analysis would introduce an unnecessarily complicated and unwarranted gloss on what was said to be clear statutory language. The second difficulty with the Tribunal’s analysis, as submitted by the appellant, was that by introducing in reality a two-stage test of the kind so described, the Tribunal’s review function would be denuded of any effective content. That was said by the appellant to be because, as the present dispute ‘vividly demonstrates’, the two-stage test presented ‘a very low barrier to review of conclusive certificates’. The appellant submitted moreover that it would be a relatively straightforward matter for a Federal government agency, engaged in the defence of a conclusive certificate under s 36, and involving one or more of the seven generic reasons relied upon in the present dispute, to point to earlier Tribunal decisions in which ‘those grounds [had] been upheld and to adduce evidence from serving Government employees in support of those “generic claims”’, if such further evidence would be even necessary at all in the light of existing Tribunal authority.

1. The Tribunal referred, at [64] to the directions which it gave for private hearings pursuant to s 58C(3)(a). It is apparent from the Tribunal’s reasons that there were two types of private hearings. There were some private sessions from which the public was excluded but at which the appellant’s legal representatives were present. At those sessions, the legal representatives were permitted to cross-examine the Treasury witnesses, but not as to the contents of the requested documents; see [64]. There was a second category of private session from which the appellant and his legal representatives were excluded. At those sessions the Tribunal took evidence from Mr Murray and another Treasury officer.

2. The Tribunal said at [65] that it could not disclose the most significant evidence given by the respondent’s witnesses. It said that this was required by s 58C(3), even though much of this evidence was disclosed to the appellant. However, the Tribunal indicated that it could disclose:-

   “the evidence relating to the internal working documents issue and the relevance issue but that evidence was mostly confined to describing documents and largely does not call for repetition.”

3. The Tribunal found at [66] that the evidence given in private, that is to the exclusion of all persons including the appellant and legal advisers, supported the claims made in the certificates, particularly that of Mr Murray.  It said that the evidence supported an alternative “reasonable opinion” to those expressed by the appellant’s experts.  The Tribunal continued at [66] as follows:-

   “Mr Murray was cross-examined. The cross-examination did not demonstrate the evidence to be unreasonable. It is not for me to decide which of the opinions of the applicant’s and respondent’s witnesses are preferable. That is not the subs 58(5) task. Provided there is a reasonable basis for an opinion and there is evidence to support it the test in subs 58(5) will be satisfied. The evidence of Mr Murray as to the reasonableness of the claims in the conclusive certificates affirms the findings of previous Tribunals that there is a reasonable basis for claims of the kind represented by each of the claims made in the conclusive certificates here.”

4. It appears from what the Tribunal said at [66] that Mr Murray’s evidence did not address the conclusive certificate claims directly but the evidence addressed the seven “generic grounds” in each certificate, which was said to support “the existence of an alternative reasonable opinion from the opinions expressed by the applicant’s witnesses”.  The Tribunal said at [67] that the evidence of the other Treasury witnesses was more directly concerned with each of the documents and linked the documents with the claims and incidentally provided support for the claims.

5. In considering whether the documents were internal working documents within s 36(1)(a), the Tribunal said at [73] that it would address each document on its merits but that it would follow the authorities such as Harris on the meaning of “scientific or technical experts”.

6. The Tribunal set out at [74] the structure of its approach to examination of the documents. It said that it would first consider whether the documents were internal working documents within s 36(1)(a) and then whether they fell outside the section by reason of ss 36(5) or 36(6). The Tribunal said it would then address the s 58(5) question of whether reasonable grounds existed.

7. The results of the Tribunal’s examination of the documents are set out at [75] – [95].  It is unnecessary to refer to all of these paragraphs.  In dealing with ten of the documents at [77], the Tribunal said that the documents provided “a substantial factual basis” for deciding that they fell within four of the grounds specified in the certificate.  It continued as follows:-

   “Those are rational grounds. They have support in the authorities and in the evidence. Accordingly, without determining whether it is my opinion or not, applying the approach I have stated that I will adopt, I conclude that reasonable grounds exist for the claim that the disclosure of each of the documents would be contrary to the public interest.”

8. The Tribunal dealt at [87] with ten other documents which it described as briefs to possible answers to questions which might be asked in Parliament.  It said that it had read each document carefully.  It said that two of the grounds relied on in the certificates were justified.

9. In [91] the Tribunal dealt with two documents, one of which was described as a document prepared to suggest answers to questions which might be asked in question time. The Tribunal said: “For reasons I have already given I conclude that the test in subs 58(5) is satisfied with respect to such documents, including this document”.

   First Question – The proper construction of s 58(5)

10. This question was set out at question 1A in the amended notice of appeal as follows:-

    “Whether, on its proper construction, the duty in s 58(5) of the [FOI] Act that the Tribunal determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest requires the Tribunal to:

    a.address and give proper and genuine consideration to all the relevant evidence or other material before it bearing upon the question whether such reasonable grounds exist, and not rely merely on past decisions of the Tribunal and/or an opinion of one witness not demonstrated to be unreasonable; and

    b.address and give proper and genuine consideration to competing aspects of the public interest as raised in the evidence or arguments before it.”

11. In my view, some parts of this question do raise pure questions of law as to the proper construction and effect of s 58(5). They therefore meet the test stated in Birdseye.

12. There are really three related questions which the appellant wishes to agitate. The first is whether s 58(5) properly embraces what was called “a two-stage approach”, namely an initial threshold test of rationality of each of the seven grounds, followed by an examination of the documents to see whether they can be linked to one or more of the seven grounds.

13. The second question is whether upon its proper construction, s 58(5) requires the Tribunal, in considering whether or not there exist reasonable grounds, to determine or balance all aspects of the public interest. This would, if the appellant is correct, require the Tribunal to balance the claim that the disclosure of the documents would be contrary to the public interest against the evidence that disclosure would be in the public interest.

14. The third question is whether in considering the issue of reasonable grounds under s 58(5), the evidence of one witness whose opinion is not demonstrated to be unreasonable, can meet the test stated in authorities such as George v Rockett.

15. The starting point for a consideration of all of these questions is the decision of the High Court in George v Rockett. Although their Honours were in that case dealing with a different statute, the parties to the present proceedings accepted that the test stated by the High Court applies to the proper construction of s 58(5).

16. Thus, to apply the words of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ at 112, what the section requires is “the existence of facts which are sufficient to induce that state of mind [ie, reasonable grounds for suspecting it] in a reasonable person”. The Tribunal therefore needs to be satisfied that there are sufficient grounds reasonably to induce the requisite state of mind; George v Rockett at 113.

17. The formation of the statutory state of satisfaction therefore refects the long line of administrative law commencing with Lord Atkin’s speech in Liversidge v Anderson (1942) AC 206 and referred to in other authorities cited by the High Court in George v Rockett.  McHugh and Gummow JJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 at [54] that the description of the statutory state of satisfaction as “reasonable” posits a criterion for the assessment of the factual elements which went to supply the state of satisfaction. This, of course, opens the decision to the possibility of judicial review.

18. What these authorities demonstrate is that the question of whether there are reasonable grounds is ultimately a question of fact to be tried on evidence; see Inland Revenue Commissioner v Rossminster [1980] AC 952 at 1000, cited with approval in George v Rockett at 112.

19. The appellant pointed to this line of authorities to support his submission (in relation to the first part of the question) that the two-stage approach is inconsistent with, and not supported by, the language of s 58(5). What was required, it was submitted, was a consideration by the Tribunal of all of the factual material and evidence on both sides free of any gloss resulting from the determination of other tribunals on other documents and other claims.

20. It is plain that the question of whether reasonable grounds exist must be a question of fact for the Tribunal. It is equally plain that it would be an incorrect construction of s 58(5) for the Tribunal to approach the question of reasonable grounds solely upon the basis of analogical support for a particular type of claim by reference to past authorities. This would be to permit class claims to be accepted, contrary to the warnings of the High Court in Sankey v Whitlam and the Full Court in Northern Land Council.  Moreover, it would be to divert the Tribunal from the requirement that it address, as a question of fact, the issue of whether reasonable grounds exist.

21. However, that is not to say that to approach the question of whether reasonable grounds exist upon the basis that guidance may be obtained from previous authorities would be to proceed upon a wrong construction of the section. It seems to me that there is nothing in s 58(5) which prevents the Tribunal, in determining whether reasonable grounds exist, from looking to other cases for analogical support in the search for a state of satisfaction as to whether there are sufficient grounds reasonably to induce the required state of mind.

22. Nevertheless, it would be to proceed upon a wrong construction of s 58(5) merely to look to earlier authorities on other claims and then to determine whether the documents in the case before the Tribunal fall within the claims or grounds stated in the certificate.

23. There are some statements in the Tribunal’s reasons which suggest that this is what it did.  They appear in particular at [77], [87] and [91] of the Tribunal’s reasons which I referred to at [203] – [204] above.

24. I am persuaded, nonetheless, that the Tribunal did not wrongly construe the section by adopting a two stage approach in the manner contended by the appellant.  It seems to me that the Tribunal was alert to the need to decide, as a question of fact, whether reasonable grounds existed and to examine the documents in order to make that finding.  It said at [29] that the test was ultimately based on findings of fact and not simply on the process of reasoning attached to a ground relied upon in the certificate.  It also referred at [52] to the need for a “factual basis”.  It repeated the reference to a factual basis in [56] of its reasons.  I set out, or referred, to these paragraphs at [169] and [186] - [190] above.

25. It is true that at [52] of its reasons (see [186] above) the Tribunal said where a document attracts consideration of a claim that has been previously upheld by the Tribunal “it may not require a great deal more” to make a finding that reasonable grounds exist for the claim.  But in my view, this does not indicate that the Tribunal fell into the error suggested by the appellant.  All it reveals is a step in the Tribunal’s reasoning process in coming to the finding that reasonable grounds existed.  That was a question of fact for the Tribunal and no question of law is raised.

26. I turn then to the second sub-question which is raised.  That is, whether the Tribunal is required to balance all aspects of the public interest, both for and against the claim.  The answer to this question turns upon whether the decision of a Full Court in Department of Industrial Relations v Burchill (1991) 33 FCR 122 (“Burchill “) (Davies, Jenkinson and Ryan JJ) ought to be followed or distinguished.

27. Burchill was not concerned with the construction of s 58(5) but, rather, of s 58(4). A certificate had been signed by a Secretary to the Department of the Prime Minister certifying that documents were exempt documents in accordance with s 34(2) of the FOI Act. Section 34(1) deals with cabinet documents and s 34(2) provides for a certificate to be given that a document is one of a kind referred to in s 34(1) and is not a document which contains purely factual material.

28. Section 34(4) of the FOI Act goes on to provide that a certificate signed by the Secretary certifying that the document is a cabinet document within the provisions of

    
    

    s 34(1)(a) and that it does not contain purely factual material, establishes conclusively, subject to Part VI, that the document is an exempt document. On an application to refuse access to such a document, the Tribunal is to determine whether there exist reasonable grounds for the claim; see s 58(4).

29. In Burchill, a submission was put that s 58(4) poses the question whether, in all the circumstances of the case, it is reasonable to claim the exemption. Davies J described the argument, at 125, as “ingenious” and well and forcefully presented, but he rejected it. He did so because he said that s 58(4) poses a different question, namely, whether there are reasonable grounds for the claim that the document meets the criteria for exemption. His Honour cited the following passage at 125 – 126 from the decision of Deputy President Todd in Re Porter and Department of Community Services and Health (1988) 8 AAR 335 at 337 – 339:-

    “To be ‘reasonable’, it is requisite only that they be not fanciful, imaginary or contrived, but rather that they be reasonable; that is to say based on reason, namely agreeable to reason, not irrational, absurd or ridiculous: see Re Actors’ Equity Association of Australia and Australian Broadcasting Tribunal (No 2) (1985) 7 ALD 584; Attorney-General’s Department v Cockcroft (1986) 10 FCR 180.  It follows that it is a heavy thing for the Tribunal to reject a certificated claim.”  

30. Thus, Davies J was of the view that the issue for the Tribunal under s 58(4) is whether the view expressed by the conclusive certificate was reasonably open. At 126 he cited and adapted a passage from a judgment of Starke J in Federal Commissioner of Taxation v Broken Hill South Limited (1941) 65 CLR 150 at 155. The effect of this was that the Tribunal has no authority to decide whether the certificate is correct, only whether there is material upon which the Tribunal could reasonably so find.

31. Jenkinson J drew attention to the distinction between the identity of the maker of the claim for exemption and the maker of the certificate in inter alia ss 34 and 36 and 58(4) and 58(5). However, he said, at 126, that nothing turned on this distinction. He agreed with Davies J that reasonable grounds existed for the claim.

32. Ryan J’s views were similar to those of Davies J. The effect of what his Honour said at 131 was that there is a difference between the power conferred on the Tribunal by s 58(1) and that which is conferred by ss 58(3) and 58(4). In particular, the power conferred under s 58(4) does not go beyond determining whether the document is an exempt document.

33. The principles stated by Davies J in Burchill were applied in Australian Doctors’ Fund Limited v Commonwealth of Australia (1994) 49 FCR 478 (“Australian Doctors’”). The case arose under s 58(5), a certificate having been signed by the Minister under s 36(3).

34. In Australian Doctors’, Beazley J was of the view at 484 that in undertaking a review pursuant to s 58(5), the Tribunal is not concerned with balancing different facets of the public interest. Her Honour referred at 485 to three earlier authorities which had held that s 58(5) does not require a balancing of grounds for and against a claim that disclosure would be contrary to the public interest; and observed at 491 that otherwise the “reasonable grounds” concept would be negated and balancing would be introduced through the back door; see Re Waterford and Treasurer of the Commonwealth (No 2) (1985) 8 ALN N37; Re Rae and Department of the Prime Minister and Cabinet (1986) 12 ALD 589; Re Peters and Department of the Prime Minister and Cabinet (No 2) (1983) 5 ALN N306 (“Re Peters”).

35. The effect of the submissions of Dr Griffith SC, for the appellant, was that Australian Doctors’ was wrongfully decided and ought not to be followed.  Dr Griffiths submitted, formally, that Burchill too was wrongfully decided but the gravamen of his argument was that Burchill should be distinguished because s 58(4) is not concerned with the question of whether there exist reasonable grounds for a claim that disclosure would be contrary to the public interest.

36. Dr Griffiths emphasised the proposition that the question of what constitutes the public interest is not a static notion; see eg Sankey v Whitlam at 60. He relied on well-established authorities for the principle that the ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests including competing public interests; see eg Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395; see also Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 at 123-4. He submitted that this will usually be required.

37. It may be accepted that a determination of where the public interest lies requires a balancing of competing factors. But s 58(5) requires the Tribunal to determine whether there are reasonable grounds for the claim that the disclosure would be contrary to the public interest. Dr Griffiths answered this by submitting that the question of whether something is contrary to the public interest involves a consideration of factors on the other side of the ledger.

38. Although Dr Griffiths’ argument has some attraction, in my view it does not accord with the proper construction of s 58(5). The correct approach to construction was stated by Beazley J in Australian Doctors’ and in the authorities which her Honour followed in that case. Those authorities make it clear that the approach urged upon the court by Dr Griffiths would negate the reasonable grounds concept and permit the Tribunal, through the back door, to come to its own opinion of what is in the public interest. That is not what s 58(5) requires. As Morling J said in Re Peters at N307:-

    “… the question is not whether the Tribunal holds that opinion.  Rather, the question is whether reasonable grounds exist for the claim that disclosure would be contrary to the public interest.”

39. Burchill addresses the proper construction of s 58(4) rather than s 58(5). But it is clear, in particular from the judgments of Davies J and Ryan J, that in determining the question of whether there exist reasonable grounds for the claim, the Tribunal is not authorised to decide whether the certificate is correct but only whether there is material upon which the Tribunal could reasonably so find. As Davies J put it, at 125, the question is whether there are reasonable grounds for the claim that the document meets the criteria for exemption.

40. In my view, Burchill points strongly against a balancing exercise in determining the question raised by s 58(5). This is because the reasonable grounds required by s 58(5) for the claim that the document meets the criteria for exemption are that disclosure would be contrary to the public interest.

41. I do not consider that the approach which I have taken departs from the stated intention by Parliament that the provisions of the FOI Act are to be interpreted so as to further the objectives set out in s 3(1) of the FOI Act; see s 3(2). Section 3(1)(b) speaks of the creation of a general right of access to information limited only by exemptions including those necessary for the protection of essential public interests. But in News Corp Limited v National Companies and Securities Commission (No 4) (1984) 1 FCR 64 at 66 (“News Corp”), Bowen CJ and Fisher J were of the view that exemptions in the FOI Act are not to be narrowly construed.  Their Honours said:-

    “In construing our Act we do not favour the adoption of a leaning position.  The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved.  Each is to be interpreted according to the words used, bearing in mind the stated object of the Act.”

1. News Corp was followed by another Full Court in Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 36 FCR 111 at 114 – 115.

2. The third sub-question raised under this heading is whether the opinions of one witness whose views are not demonstrated to be unreasonable can be sufficient to support a finding of reasonable grounds. In my view this is a question of fact which cannot be the subject of an appeal under s 44(1) of the Act; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24] – [25] (Gleeson CJ, Gummow and Callinan JJ); [78] (Kirby J); [108] (Hayne J).

3. Even if this is not correct, there is nothing in the Tribunal’s reasons to suggest that it did not take into account the views of the witnesses called for the appellant.  It is true that the Tribunal made no express findings about the evidence of Mr Harris and Professor Dixon.  But it is clear from what the Tribunal said at [56] about Mr Rose’s evidence that it preferred the evidence of Mr Murray to that of the appellant’s witnesses.

   Second Question – whether the Tribunal misconstrued the concept of public interest in s 36 of the FOI Act

4. This question was set out in [3] of the amended notice of appeal as follows:-

   “Whether the Tribunal misconstrued the concept of public interest as referred to in s 36 of the Act, misdirected itself as to the test to be applied in relation to that concept construed within the context of the Act, failed to take account of relevant considerations, and constructively failed to exercise its jurisdiction, by:

   a.considering that interference with the smooth carrying out of the role of governing, and causing intrusion and distraction, is contrary to the public interest;

   b.failing to take any account, or any proper account, of the role of the Act in promoting democratic, open, accountable government as a critical aspect of the public interest;

   c.considering that the public interest may depend upon the nature and motivation of the applicant for disclosure, and that disclosure may be contrary to the public interest if the documents relate to a topic of general interest;

   d.failing to take account of the potential for further explanation or clarification of information contained within documents released under the Act as an aspect of the public interest;

   e.considering that each and all of the seven types of claimed public interest relied upon by the Respondent could fall within the concept of public interest as referred to in s 36 of the Act;

   f.failing to take proper and sufficient account of the fact that the Treasurer and Respondent decided during the course of the hearing to release some documents sought by the Appellant, whilst maintaining the claim that release of those very documents was contrary to the public interest.”

5. I have serious doubts as to whether the question, framed in these terms, discloses a pure question of law within the test stated in Birdseye at [18]. The question is redolent with the notion of judicial review rather than with a question of law. In Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 (“Clements”) at [59] – [67] Gyles J drew attention to the distinction between an appeal on a question of law under s 44 of the AAT Act and the supervision of the way in which the Tribunal carries out its review.  His Honour said at [67] that the ample provisions of the Administrative Decisions (Judicial Review Act) 1977 (Cth) and s 39D of the Judiciary Act 1903 (Cth) make it unnecessary to stretch the proper role of s 44 of the AAT Act; cf the view of Gray ACJ and North J at [3] – [8].

6. Even if the question raises questions of law rather than questions of fact, I consider that there are a number of short answers to the proposition for which the appellant contends.

7. First, it seems to me that the entire question is predicated upon an assumption that the concept of the public interest can be defined within precise boundaries.  That proposition was rejected by Lockhart J in Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health (1995) 56 FCR 50 at 59. His Honour there observed that opinions have differed and will always differ as to what is or is not in the public interest.

8. That is not to deny the forceful submissions of the appellant that the availability of information relevant to the performance of government is essential to the effective maintenance of the democratic system and that the FOI Act is a necessary supplement to the operation of responsible government; see Australian Capital Territory Pty Limited v The Commonwealth (No 2) (1992) 177 CLR 106 at 231 (McHugh J); Egan v Willis (1998) 195 CLR 424 at [42] (Gaudron, Gummow and Hayne JJ).

9. However, the difficulty which is immediately apparent from the various particulars of “jurisdictional error” found within this question is that they turn upon what is, or what is not, within the concept of public interest.  But as Mason CJ, Brennan, Dawson and Gaudron JJ said in O’Sullivan v Farrer (1989) 168 CLR 210 at 216:-

   “Indeed, the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at p 505, per Dixon J.”

10. It is plain that the categories of public interest are not closed and that different minds will differ as to what is, or what is not, in the public interest. Even if the question discloses a pure question of law in accordance with s 44(1) of the AAT Act, I do not consider that any error of law has been established.  There is nothing in the subject matter or scope of the FOI Act which confines the discretionary factors to be taken into account in the manner suggested by the appellant.

    Third Question – whether s 58C of the FOI Act excludes an obligation of procedural fairness in relation to cross-examination of witnesses

11. This question was set out as Question 4A in the amended notice of appeal as follows:-

    “Whether and to what extent, on its proper construction, s 58C of the Act overrides the duty of the Tribunal to accord procedural fairness to the appellant under s 58(5) including, in particular, the duty to allow the appellant to be present during the hearing of the matter and to cross examine witnesses except insofar as such is likely to lead to disclosure of the contents of the documents claimed to be exempt.”

12. It seems to me that this raises a pure question of construction of s 58C which is a question of law. However, even if the answer to the question is favourable to the appellant, I am unable to say that the Tribunal committed an error of law.

13. This is because, as was frankly conceded by Dr Griffith, he is not in a position to say, and does not know, whether any of the evidence given by Mr Murray in the session from which the appellant and his legal advisers were excluded went beyond the reception of evidence of the content of the documents claimed to be exempt.

14. The Tribunal’s reasons at [63] – [64] make it plain that the appellant and his legal advisers were present at the first form of private hearing, ie the sessions from which the public was excluded.  It is also clear that the appellant’s legal representatives were permitted to cross-examine the witnesses at those sessions but not as to the content of the documents claimed to be exempt.  No complaint is made about this. 

15. The gravamen of the complaint sought to be raised under this question goes to what took place in the truly private sessions from which the appellant and his advisers were excluded. If evidence was given at those sessions about matters going beyond the content of the documents claimed to be exempt, the appellant contends that the procedure adopted would not accord with the provisions of s 58C.

16. The Tribunal’s account at [64] of the nature of the oral evidence given by Mr Murray and Mr Gallagher at those sessions is not stated.  It is for the appellant to make good its contention that the question of law upon which it relies arises in the proceedings.  The concession fairly and properly made by Dr Griffith leads to the inevitable conclusion that the ground of appeal put forward under this question has not been made good.

17. In any event, where the Tribunal is to receive evidence of the content of the documents claimed to be exempt documents, no question of natural justice arises when the Tribunal exercises its power under s 58C(2) to exclude an applicant and his or her legal advisers from being present; see Department of Industrial Relations v Forrest (1990) 21 FCR 93 at 106, 118-119.

    Fourth Question – error concerning communication with member of Minister’s staff

18. This question is set out at Question 7 in the amended notice of appeal as follows:-

    “Whether the Tribunal erred in finding that a communication with a member of a Minister’s ‘private staff’ is effectively a communication with the Minister, where there was no evidence for such a finding;”

19. I am prepared to deal with this question on the footing that the “no evidence” ground raises a question of law; c.f. Clements at [61] – [67].

20. This ground is said to arise from the Tribunal’s view at [35] that a “communication with a member of the Minister’s private staff is effectively a communication with the Minister”.

21. I accept the appellant’s submissions that the proposition is not self-evident and the onus of proof was on the respondent; see s 61 of the FOI Act.

22. The respondent did not point to any evidence said to support such a finding.  Instead, the respondent’s submission was that it was for the Tribunal to determine in relation to each document whether reasonable grounds existed and “it was a matter for the Tribunal, on the evidence, to make the determination required by s 58(5)”.

23. This does not advance the respondent’s argument.  Indeed, its failure to point to some item of evidence highlights the difficulty.  Nor can the submission that there was evidence in the appellant’s experts’ affidavits fill the gap.

24. However, it seems to me that in order for the appellant to succeed, the error must have contributed to the decision in some way; at least it must be impossible to say that it did not contribute; see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 378.

25. A difficulty arises because I do not know what documents are covered by the certificate. The respondent submits that the only document which is affected is document B040; see Tribunal’s reasons at [89].

26. In my view, even if the Tribunal was in error in its view that a communication with a member of the Minister’s private staff is effectively a communication with the Minister, there is nothing to indicate that the error contributed to the Tribunal’s final decision.

    Fifth Question – construction of “reports of scientific and technical experts”

27. This was set out as Question 8A of the amended notice of appeal as follows:-

    “Whether, on its proper construction, s 36(6)(a) of the Act extends or can extend to reports of experts such as econometricians, actuaries and statisticians (reporting in their capacity as such).”

28. The question seems to me to raise a question of construction of s 36(6)(a) of the FOI Act, which is a question of law.

29. In Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 at 563 (“Harris”), Beaumont J held that the reference to “technical experts” in s 36(6)(a) was intended to describe experts in the mechanical arts and applied sciences generally. His Honour held that it did “not necessarily follow” that an opinion of a legal expert fell within the definition.

30. The appellant submits that the decision of Beaumont J is either incorrect or, alternatively, that it is not determinative of the issue in the present case.  I can see no error in the approach taken by the Tribunal in following the decision in Harris. Moreover, the Tribunal’s views of the proper construction of “scientific or technical” at [71] and [72] of its reasons seems to me to accord with the natural meaning. Accordingly, in my opinion, the Tribunal’s reasons do not disclose error.

31. For these reasons, the appeal is dismissed with costs.

I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             2 August 2005

Counsel for the Appellant:	Dr J E Griffiths SC with Mr J K Kirk
Solicitor for the Appellant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr R R Tracy QC with Ms M Campbell
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 May 2005
Date of Judgment:	2 August 2005