Neary v The Treasurer, New South Wales

[2002] NSWADT 261

CITATION:	Neary -v- The Treasurer, New South Wales [2002] NSWADT 261
DIVISION:	General Division
PARTIES:	APPLICANT Vincent Neary RESPONDENT The Treasurer, New South Wales
FILE NUMBER:	023046
HEARING DATES:	24/06/2002, 26/08/2002
SUBMISSIONS CLOSED:	08/26/2002
DATE OF DECISION:	12/13/2002
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Legislation Amendment Act 1997 Freedom of Information Act 1982 (Cth) Freedom of Information Act 1982 (Vic) Freedom of Information Act 1989
CASES CITED:	BY v Director General, Attorney General’s Department [2002] NSWADT 79 Neary v The Treasurer of New South Wales [2001] NSWADT 161 Neary v The Treasurer of New South Wales [2002] NSWADTAP 4 Mangoplah Pastoral Co v Great Southern Energy [1999] NSWADT 93 Re Just v Department of Justice (1996) 10 VAR 126 Re Thwaites and Metropolitan Ambulance Service (VCAT, 30 July 1998) Commonwealth v John Fairfax & Sons (1980) 147 CLR 39 BY v Director General, Attorney General’s Department [2002] NSWADT 79 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 R v Young (1999) 46 NSWLR 681 Hulls v Victorian Casino and Gaming Authority (1997) 11 VAR 213 Mathieson v Burton (1971) 124 CLR 1
REPRESENTATION:	APPLICANT In person RESPONDENT N Sharp, barrister
ORDERS:	1. Application dismissed. Minister's decision affirmed.

1 The applicant has sought review of a determination by the Treasurer refusing him access to various documents made under the Freedom of Information Act 1989 (FOIA). At hearing on 26 August 2002 I dismissed the application.

2 This is a revised version of ex tempore reasons delivered at that time. The reasons, as foreshadowed then, also address an additional issue - whether the Tribunal has available to it a public interest override discretion enabling it to order disclosure of documents for which Ministers or agencies have claimed exempt status, and the claim has been accepted by the Tribunal.

3 The applicant was once a senior officer in the signalling area of the State Rail Authority (the Authority). He has for many years been pursuing issues to do with whether the Authority in the 1980’s and early 1990’s properly used its funds to maintain the track and signalling infrastructure.

4 On 28 February 1997, the Treasurer issued a media release (giving rise to a newspaper report in the Sydney Morning Herald on 1 March 1997) in which he trenchantly criticised past financial practices at the Authority. He referred to the way the Authority had used and expended its funds in the past. The applicant, not unreasonably, saw the comments as lending support to the view he had pressed in many quarters over many years relating to, what he saw as, the misuse of funds by the Authority. According to him funds earmarked for track and signalling maintenance were used for other purposes, thereby contributing to the deterioration of the rail system. He had lost his job at the Authority in 1993, he says because of the efforts he had made to bring his concerns to public notice.

5 Consequently he has sought access to documents relevant to the contents of the media release and the newspaper article from the Minister’s department, the State Treasury, and now from the Minister himself. The Treasury refused to release 4 documents that it identified as relevant to his request on the ground that they were Cabinet documents. The applicant applied for review of that decision, and the application was dismissed by the Tribunal in the year 2000: 3 March 2000: file no 993227. Regrettably the Tribunal file contains no reasons for decision, simply the entry of an order.

6 The applicant then made a similar application to the Treasurer. The Treasurer’s office identified 6 relevant documents, and refused to release them on the ground that they were Cabinet documents (Schedule 1, cl 1, FOIA, set out later in these reasons). The applicant applied for review. The application was dismissed. He appealed, and the Appeal Panel set aside the decision on procedural fairness grounds and remitted to the Tribunal, which is now differently constituted. The present proceeding is dealing with the remitted application.

7 In the present instance the request has been handled by the responsible officer within the Ministerial office of the Treasurer (Ms Gay Bransgrove). The Tribunal had before it: an affidavit from Ms Bransgrove annexing the applicant’s original request made 28 September 2000 to which was attached the newspaper report of 1 March 1997 and her determination dated 20 October 2000. The affidavit provided at paras [15] and following a general description of the documents located. Ms Bransgrove gave a short account of the nature of each of the six documents in issue and the way in which they were used in the Cabinet Committee or Cabinet process.

8 In each case she formed the view that the document fell into one or more of the sub-categories found in cl 1, and specified which ones. Clause 1 is as follows:


‘ 1 Cabinet documents
(1) A document is an exempt document:
(a) if it is a document that has been prepared for submission to Cabinet (whether or not it has been so submitted), or
(b) if it is a preliminary draft of a document referred to in paragraph (a), or
(c) if it is a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or
(d) if it is an official record of Cabinet, or
(e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.
(2) A document is not an exempt document by virtue of this clause:
(a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet, or
(b) if 10 years have passed since the end of the calendar year in which the document came into existence.
(3) Subclause (2) (b) does not apply to a document that came into existence before the commencement of this clause.
(4) In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet.’

Adequacy of Search
9 The applicant challenged the adequacy of the search undertaken by the office, and that issue was dealt with by me on 24 June 2002. I found that the office had undertaken an adequate search. I indicated at that time that I accepted that the Minister’s office only held a relatively limited range of material, with underlying material usually being held in the briefing agencies. In this instance the likelihood was that substantial documentation, if there is any, would be found at the Authority.

10 On that occasion I gave the following short oral reasons:

‘ DELIVERED EX TEMPORE
REASONS FOR DECISION
1 The issue before the Tribunal today is whether the officer responsible for handling Mr Neary’s request for access to documents held by the Treasurer engaged in an adequate search. The officer, Ms Bransgrove, has given evidence by way of affidavit and been cross-examined by Mr Neary. She has also answered some questions that I asked.
2 The submission of the agency is that the evidence establishes that a proper search was conducted in response to the request - the request, I might note, was dated 29 September 2000 and referred to a press release which was the subject of a newspaper story in 1997. Mr Neary, as I understand it, in his application, identified the story as a story from 1 May 1997. It turned out that it was a story from 1 March 1997, and after some difficulty because of that inaccuracy in relation to the date, Ms Bransgrove located a press release for 28 February 1997, which is attached to Mr Neary's application for review.
3 Mr Neary has been involved in applications for review of freedom of information determinations in the Tribunal now for some time. The applications all are connected to his view that there was an improper practice followed in the budgetary environment of the transport portfolio over many years, which he says involved infrastructure funds being diverted by State Rail to ordinary railway operational purposes, and I think the underlying concern that Mr Neary has, if I have appreciated it properly, is that that alleged improper diversion of funds had implications for the quality of the railway infrastructure and general safety issues. As I recall it, Mr Neary had a senior position in the signalling area of State Rail at one time.
4 The evidence of the officer is that six documents were identified. Three of the documents relate to a Cabinet Standing Committee meeting of 12 December 1996 and three relate to a similar meeting on 17 February 1997. These meetings, as I understand it, occurred in the lead-up to the State budget. Her evidence is that the routine in the office is to maintain a relatively confined filing system. The central filing system, she says, is one that simply holds Cabinet papers and there also is a separate system holding media releases. Nothing that Mr Neary has raised today would lead me to doubt in any way that evidence. It appears sensible on its face in that one would expect that a Minister as senior as the Treasurer with such substantial responsibilities is not likely to maintain significant parallel collections of documents in his own office duplicating those that would have been generated in the Treasury and other departments.
5 Mr Neary has put to the Tribunal that the Tribunal should inform itself as to what were the documents, if any, that gave rise to the contents of the media release. The request, it seems to me, misconstrues the nature and purpose of proceedings under the Freedom of Information Act . It is not the Tribunal’s role to use powers of this kind as a method of undertaking a general inquiry into the background to government policy announcements or material that is critical of past government practice. The issue today is whether the search was adequate. If there was some reasonable basis for forming the view that there was some adequacy of the search, then, maybe at that point the question of whether the Tribunal should inform itself so as to resolve that doubt could be canvassed, but there is nothing in the material today, as I see it, that can establish any rational doubt as to the evidence that has been placed before us.
6 We have a senior and responsible officer of government in a critical office of government giving evidence on oath as to what she did and the rational process that she applied to the request before her. There is no reason not to accept that evidence.
7 So for those reasons I find that the search in response to Mr Neary’s request was adequate and invite submissions now as to where we move to next.’
Restricted Documents
11 In the scheme of the legislation Cabinet documents are ‘restricted documents’. That means that they are affected by s 57 of FOIA which provides:
‘ 57. Consideration of restricted documents
(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.
(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:
(a) the public, and
(b) the review applicant, and
(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative.
(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.
(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.
(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.
(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.’
12 In BY v Director General, Attorney General’s Department [2002] NSWADT 79 (15 May 2002) I ruled, contrary to some earlier rulings in the Tribunal, that in any case where an agency relied on a ‘restricted document’ exemption (being cl 1, cl 2 or cl 4 of Schedule 1) s 57 was applicable. Accordingly it is necessary for the Tribunal to deal with the respondent’s determination in the manner contemplated by s 57. The Premier, as the Minister administering the Act, became a party to the proceedings, as contemplated by s 57(6).

13 After considering Ms Bransgrove’s evidence and the applicant’s questions and submissions, I ruled, in terms of s 57(3) that the respondent had established ‘reasonable grounds’ for the claim to the exemption. I did not call for production of the documents.

14 In my decision in BY I dealt with the question of whether the Tribunal should, after satisfying itself that the Minister or agency does have ‘reasonable grounds’ for the claim, go on to assess whether the relevant exemption was, in the circumstances, properly invoked. In BY I agreed with earlier Tribunal rulings to the effect that resolution of the s 57(3) threshold issue did not exhaust the Tribunal’s jurisdiction. It still remained to consider the substantive question raised by the determination.

Section 124(4) Certificates
15 The Minister has contended in this case that the Tribunal is bound to find that the documents are Cabinet documents, and is not entitled to call for them (despite the words of s 57(3) referred to above) because they are the subject of a certificate issued by the Director-General of the Cabinet Office pursuant to s 124(4) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).

16 The Tribunal on the last occasion it considered the present case rejected the submission: see Neary v The Treasurer of New South Wales [2001] NSWADT 161. The Appeal Panel also rejected the submission, and gave detailed reasons: see Neary v The Treasurer of New South Wales [2002] NSWADTAP 4 at [25-37]. I agree with the Appeal Panel, and make the following additional observations.

17 Section 124 is headed ‘Application of [Tribunal] Act to exempt documents under the Freedom of Information Act’. Sub-section (4) provides:

‘ (4) Certificates by Director-General of The Cabinet Office concerning cabinet documents
The Director-General of The Cabinet Office may certify that a document is an exempt document because it is a cabinet document. Any such certificate:
(a) is conclusive of that fact, and
(b) authorises any person who would otherwise be required under this Act to lodge the document concerned with (or disclose it to) the Tribunal to refuse to lodge the document with (or disclose it to) the Tribunal.’
18 There had been such a certificate issued in relation to the applicant’s earlier request addressed to the State Treasury. In the earlier Tribunal decision in the present matter in 2001, the Judicial Member Britton referred to the Tribunal’s decision of 1999 in that earlier matter (no 993227) and said (presumably on advice from the Crown Solicitor, as the Tribunal file contains no reasons) that the Tribunal on that occasion had rejected the application, accepting the State’s submission in relation to the effect of s 124. If that was the basis for the decision, it was in error.

19 It is clear, I consider, that the s 124 certificate procedure is directed to the ordinary run of cases in the Tribunal where documents of a government agency or Minister may be considered relevant. The section gives a power to the Director-General to present the production of certain documents. It is not directed to cases that arise under FOIA itself. FOIA itself provides the code that is to apply to the Tribunal when exercising the review jurisdiction conferred by that Act. It has special provisions, as already noted, dealing with claims to exemption that fall within the ‘restricted documents’ categories, of which the most important are the Cabinet documents categories set out in Schedule 1, cl 1.

20 There is a ‘certificate’ mechanism in FOIA itself which seeks to contain the extent to which the Tribunal may have access to Cabinet and other restricted documents for the purposes of determining an application for review. The relevant provision, s 59, provides:

‘ 59. Ministerial certificates
(1) A certificate that is signed by the Minister and that states that a specified document is a restricted document by virtue of a specified provision of Part 1 of Schedule 1 shall, except for the purposes of Division 3 of Part 5, be taken to be conclusive evidence that the document is a restricted document by virtue of that provision.
(1A) A certificate under this section must specify:
(a) the reasons for the Minister's decision that the document is a restricted document, and
(b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based.
(1B) A copy of a certificate under this section is to be given to an applicant seeking access to the document concerned. Such a copy is, for the purposes of section 28 (2) (e), sufficient notice to the applicant of the reasons for the refusal of access and the relevant findings underlying those reasons.
(2) A certificate under this section ceases to have effect at the end of 2 years after it is signed by the Minister unless it is sooner withdrawn by the Minister.
(3) Nothing in subsection (2) prevents the Minister from issuing a further certificate in respect of the same document.
(4) Nothing in this section requires any matter to be included in a certificate if it is of such a nature that its inclusion in the certificate would cause the certificate to be an exempt document.’
21 The effect of issuance of such a certificate in relation to a restricted document is to remove the jurisdiction of the Tribunal to determine the threshold question of ‘reasonable grounds’ under s 57; and require an applicant for review to go to the Supreme Court to have that question determined pursuant to ss 58A, B and C.

22 If the submission made as to the effect of s 124 (Tribunal Act) certificates is right, then the s 124 certificate could not only be used to deprive the Tribunal of any capacity to assess the review application, but do the same to the Supreme Court in s 59 Ministerial certificate cases. This result was, in my view, plainly not intended when the Parliament passed ss 58A, B and C in 1992. These changes to the Act were made in response to the Charter of Reform to which the minority Government of the day agreed in order to receive the support of the Independent members of the Lower House. See further, BY at [48-52].

23 If the Minister’s submissions in this case are right, a certificate from a public servant, albeit the head of the Cabinet Office, would have more significance for the jurisdiction of the Tribunal and the Supreme Court than a certificate of a Minister issued under s 59.

Soundness of Claims to Exemption
24 Moving to the substantive question.

25 As I indicated in argument in this case, it seems to me that in a case of the present kind there probably will not be much to be done by way of receiving further evidence if the Tribunal has satisfied itself that there are reasonable grounds for a claim. Ms Bransgrove deposed that she had inspected the documents and was satisfied that the documents fell within relevant descriptions set out in cl 1. The Tribunal accepted that evidence at the ‘reasonable grounds’ stage of the inquiry. It follows that it should also be accepted at the ‘substantive’ stage of the inquiry.

26 There is, as I see it, no practical difference in cases like this one between the question the Tribunal considers at the ‘reasonable grounds’ stage and the ‘substantive’ stage.

27 I do not see the position as being so simple in relation to cl 4 restricted documents claims. Clause 4 has numerous categories of exemption which confer protection of documents related to ‘law enforcement and public safety’. It is regularly relied upon by the Commissioner of Police and other law enforcement agencies.

28 It is possible in cl 4 cases for the Tribunal to be satisfied at the threshold stage that the Minister or agency had ‘reasonable grounds’ for invoking the exemption, but not be satisfied after further examination that the claim was justified in the circumstances. This flows, as I see it, from the fact that most of the exemption categories in cl 4 have an evaluative element. The language of cl 4 is much less capable of simple uncontentious factual application in contrast to the question of whether a document is a Cabinet document.

29 As to this case, I am satisfied that the documents 1 to 6 were properly classified, and therefore they are exempt documents within the meaning of cl 1. It is unnecessary for me to inspect the documents in order to reach this conclusion. Accordingly I have not called for their production.

PUBLIC INTEREST OVERRIDE
30 The applicant contends, in line with the ruling in Mangoplah Pastoral Co v Great Southern Energy [1999] NSWADT 93, that even though the documents are exempt documents, they should be released to him in the exercise of the discretion given by s 25(1)(a) on public interest grounds.

31 Section 25, as relevant, provides:

‘ (1) An agency may refuse access to a document:
(a) if it is an exempt document.’
The Applicant’s Public Interest Case
32 The best account of the applicant’s concerns is contained in paragraphs 30 and his submissions filed 27 March 2002.

33 The applicant sets out the history of his involvement in issues to do with expenditure on capital works projects in the Authority. He held a managerial position in the Authority in 1989 and submitted his concerns to the Chief Executive. He referred to a number of specific incidents of, what he saw as, maladministration and corruption. He was advised six months later that all his complaints had been investigated and no evidence of serious improprieties or corruption was found. He was not satisfied by this response, and continued to pursue vigorously his claims in a range of forums. He sees his activities as having been the basis for his dismissal in 1993. An appeal to the Transport Appeals Board was unsuccessful. The State Rail Authority was restructured with effect from 1 July 1996.

34 It is against this background that the applicant found interesting the report in the Sydney Morning Herald on 1 March 1997 based on the Media Release issued by the Treasurer on 28 February 1997. The Media Release was headed ‘Half Yearly Budget Statement’, and referred among other matters to the restructure of the State Rail Authority. It stated that: ‘The corporatisation of Freight Rail [one of the separate entities created by the restructure] has uncovered the fact that the freight division of the SRA was used as a vehicle for borrowing money to fund commuter train services’; ‘we’ve discovered it borrowed hundreds of millions of dollars it didn’t need, money that was used to cross-subsidise passenger services.’ The Treasurer does not go quite as far as to use the word misappropriation.

35 The newspaper report the next day describes the situation as one where the Authority disguised the extent of its losses for years. It refers to the Treasurer and reports him as saying that the Authority had concealed the true size of New South Wales budgets by hundreds of millions of dollars and ‘that at least a billion dollars had been borrowed over perhaps 20 years nominally to buy rail infrastructure for freight services but in reality to prop up loss making passenger services’; and so it goes on. He says at the end:

‘I don't want to point the finger at anyone in particular. The finances of State Rail were in a mess as everyone knows.’
36 The relevance is obvious of these remarks to the criticisms that the applicant had pursued, as he sees it to his considerable personal detriment, over many years. The statements made by the Treasurer suggested mismanagement of a serious kind in the accounting practices of the Authority.

37 In contrast to a number of the cases in the Tribunal where ‘public interest’ submissions have been made in relation to the exercise of the s 25 discretion, this is, as I see it, a relatively strong case.

38 Many of the previous cases have involved claims by the applicant who has been denied access to personal records. They have then sought to mount an argument based on the unfairness of their treatment to justify overriding an exemption in the public interest.

39 This is a case of a different character, though the applicant’s interest is prompted to some extent, no doubt, by what he sees as his victimisation for raising and pressing his concerns about expenditure practices in the Authority in the 1980’s. The matters to which the documents go relate to the effective and efficient administration of a major responsibility of State government, the public transport system.

Position if Override Discretion Available
40 In order to bring the proceedings to an end in my ex tempore reasons on 26 August 2002 I considered the applicant’s submissions on the basis that such a discretion was available to me; and reserved on the fundamental objection made by the respondent. Paras 44-61 contain the slightly revised text of the reasons as delivered on that occasion.

41 The most appropriate approach, as I see it, to informing ourselves on the application of a public interest override discretion is to go to the Victorian scheme. That is the first jurisdiction in the country to have an express provision to that effect. The Freedom of Information Act 1982 (Vic), s 50(4) provides:

‘On the hearing of application for review the Tribunal shall have in addition to any other power the same powers as an Agency or a Minister in respect of a request including a power to decide that access should be granted to an exempt document … where the Tribunal is of the opinion that the public interest requires that access to the document should be granted under this Act.’
42 The words omitted in the above quote refer to three categories of document which are excepted from this provision - these relate to Cabinet documents, documents of the Bureau of Criminal Intelligence and documents relating to personal privacy.

43 So even in the relatively liberated FOI jurisdiction, Victoria, the public interest override does not apply to Cabinet documents. If this case had arisen in Victoria we would not be having the present discussion. Now, be that as it may, let us say the position here is that we can look at the public interest, then there are a number of decisions in Victoria on the way in which a s 50(4) power is to be applied by the Tribunal; see generally, Kyrou, Victorian Administrative Law (1998) [2498].

44 I will take one for illustrative purposes, Re Just v Department of Justice (1996) 10 VAR 126 (Vic AAT) - a case of a kind that probably could only arise in Victoria, about the Government's management of the Collingwood Football Ground. The Tribunal observes in its decision that in one sense at least there could hardly be a matter of more public interest in Victoria than issues to do with the administration of Australian Rules football.

45 The Victorian Tribunal outlines the political debate that surrounded the question of the legality of the statutory arrangements that affected the management of that piece of (apparently) public land. The Tribunal says at 129:

‘When s 50(4) speaks of the public interest it refers to the benefit of the community in general not the benefit of any individual much less the curiosity of any individual.’
46 In some ways those words do not take us very far. Nevertheless where there has been widespread debate and disquiet as to a particular matter, the Tribunal in this decision and in other decisions has indicated that the public interest may require release of documents which either confirm the grounds for public disquiet or dispel them.

47 What is being suggested is that there is a point within the public and political debate in the community where in a sense it is in the interests of resolving public disquiet that the whole of the relevant material be seen even though otherwise it is subject to an exemption.

48 The next point that the Victorian Tribunal focuses on is the word ‘requires’ as it is used in s 50(4). The Tribunal states:

‘The imperative force of the word ‘requires’ in the subsection should not be ignored. The public interest will not require the release of otherwise exempt documents if the public benefit and view can be achieved by other means than by overriding exemptions otherwise available under the FOI Act. Likewise the public interest will not require release unless the release is clearly adapted to achieve the relevant public benefit.’
49 If that thinking is applied to the present case it seems to me that there is no doubt that Mr Neary has raised an issue which he sees as an important question of the public interest. However, whether appropriate or not it has not become a significant matter of public controversy. In terms of the Victorian learning that is a factor that counts against the applicant’s submissions.

50 Moreover the public benefit sought to be achieved by the applicant’s FOI request (obtaining fuller information as to the apparently scandalous management of capital funds in the Authority in the years prior to 1996) can, it seems to me, be achieved by the use of other mechanisms. This is a point that I have made to the applicant on other occasions in these proceedings.

51 New South Wales has a host of investigative institutions with a mandate related to maladministration and official corruption, for example, the Independent Commission Against Corruption, the Police Integrity Commission, the Ombudsman, the Auditor General, as well as the use of Royal Commissions for specific purposes. As the applicant’s submissions recognise, all the matters that have been raised by him are quite capable of being dealt with by one or more of the kind of bodies I have mentioned. He has in fact made representations to investigative agencies and Members of Parliament.

52 They can look at the question of whether there is anything lying behind the Treasurer's press release of March 1997 that warrants special examination, that warrants greater action on the part of the government than it may have chosen to take.

53 My own view is, as I think I have probably expressed in other proceedings, is that I think the Tribunal within the context of an FOI process is not well suited to reaching any credible view on the difficult issues raised by the present submissions. If a public interest claim is based on significant allegations of misconduct in government, the Tribunal would, as I see it, necessarily be obligated to receive evidence. The Tribunal would be distracted by a significant collateral fact finding inquiry. Such a course ought not lightly be embarked upon.

54 While I am not familiar with the Victorian practice as it relates to assessing s 50(4) claims, I would be surprised if the Tribunal allowed itself to become involved in any significant collateral fact finding inquiries. There have, of course, been cases in Victoria where the public interest override discretion has been exercised favourably to the applicant. An example is Re Thwaites and Metropolitan Ambulance Service (VCAT, 30 July 1998) (ordered disclosure in the public interest in support of the maintenance of ambulance services in relation to documents affected by legal professional privilege which if released would inform the public as to how well it had gone about trying to avoid and resolve various major disputes).

55 Another instance where a public interest release might be appropriate might arise where some confidential Cabinet documents had found their way into the public domain (through, for example, leaks), and accordingly it was desirable for the full set of documents to be made available to correct the picture created by the ones that had become available. This possibility is canvassed in Re Just and reference is made to observations along these lines made by the High Court in the analogous area of public interest immunity (as in Commonwealth v John Fairfax & Sons (1980) 147 CLR 39).

56 So, to take the present cases, a situation could have arisen where quite pungent Cabinet document material had found its way into the Sydney Morning Herald. It might have gone to the nature of the Authority’s ‘creative accounting’ (to use the Treasurer’s term). Were there such a discretion available it may be that it would be appropriate for the Tribunal to form the view that in all the circumstances it would be preferable and in the public interest for the full picture to be known to the community; and order release of the totality of documents.

57 But none of the factors that might favour ‘public interest’ release pursuant to s 25 are present in this case.

58 If I do have a public interest discretion - and while the applicant’s concerns are not insignificant - I do not see this as a case where the discretion would be exercised favourably. I am informed in that regard by the Victorian authorities.

59 I then went on to indicate that I would issue a fuller set of reasons which dealt more fully with the contention that the Tribunal has no power to exercise a residual public interest discretion by virtue of s 25 of FOIA.

Jurisdiction of Tribunal in respect of Section 25
60 Ideally the continued conflict with the Mangoplah interpretation of s 25 should be addressed by an Appeal Panel. In my decision in BY v Director General, Attorney General’s Department [2002] NSWADT 79 I stated that where the President or a Divisional Head sitting at the primary level of the Tribunal gives a ruling on a contentious question of law, in the interests of comity that should be adopted by other members sitting at primary level. I see the following ruling as being in that category.

61 Section 25 on its face confers a discretion to release on agencies (with the power extending to Ministers and their documents by virtue of s 38). There is no mention of the Tribunal.

62 The opening words of s 25, the agency ‘may refuse access’ reflect the underlying objective of FOI laws - to give maximum access to official documents, and to permit agencies to do so even though one of the grounds enumerated in s 25 as a basis for refusing access is available to them. See generally s 5 (objects provision).

63 The discretion resides within a provision that is dealing with the powers of the agency to refuse access. It immediately follows on from the provision (s 24) requiring agencies to make determinations on requests for access. The Tribunal’s jurisdiction is one of review of determinations of certain kinds (including determinations to refuse to grant access on the basis that a document is an exempt document): see s 53 (3).

64 On its face the discretion given to Ministers and agencies by s 25(1)(a) lies outside the boundaries of a reviewable determination. The powers of the Tribunal to make orders are not set out in the FOIA, instead the Tribunal Act is applicable: s 53(5). Under the Tribunal Act, the Tribunal is required to determine what is the ‘correct and preferable’ decision in the circumstances: s 63, Tribunal Act; and the orders it may make are, in summary, to affirm, vary or set aside the decision under review.

65 In Mangoplah the critical reasoning relates to the effect on the scheme of FOIA of s 53(5) (inserted in the context of transferring the jurisdiction from the District Court to the Tribunal) and the repeal of the previous s 55. The Tribunal said:

‘77 Prior to the transfer of external review jurisdiction from the District Court to this Tribunal, the answer was clear. Section 55 of the FOI Act conferred a merits review function on the District Court, but expressly excluded from the Court's consideration the exercise of the override discretion. In a provision repealed at the time of transfer, it said:
"55(5) This section does not operate so as to enable the District Court to determine that access to an exempt document is to be given."
78 The District Court's position replicated the limited external review provided under Commonwealth FOI legislation, in which s 58( 2) of the Commonwealth FOI Act expressly removes the Administrative Appeals Tribunal's power "to decide that access to the document, so far as it contains exempt matter, is to be granted". In contrast, the Victorian FOI Act takes a different course. Section 50(4) gives its review tribunal "the same powers as an agency or a Minister in respect of a request, including the power to decide that access should be granted to an exempt document [other than Cabinet, Bureau of Criminal Intelligence, or exempt personal documents] where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act". This provision has given rise to an extensive jurisprudence which is summarised in Kyrou (ed) "Victorian Administrative Law" at [2498].
79 The benefits of external review reaching into all elements of a primary decision to withhold release are apparent. In particular, it must have the tendency to encourage agency decision-makers to address their full discretion to release documents and to discourage them from thinking that their role is merely to locate at least one exemption which, in its terms, is capable of application to a document. Recent commentators on the operation of FOI legislation in Australia, including some Ombudsmen, have detected and complained of such thinking as a common occurrence.
80 However, did the NSW Parliament intend to place the Administrative Decisions Tribunal in a position similar to the Victorian Tribunal when it repealed the express bar in s 55(5) of the NSW Act and moved jurisdiction from the District Court to a specialist administrative review tribunal? This was performed by amendments to the FOI Act in Sch 5.16 to the Administrative Decisions Legislation Amendment Act 1997 (NSW), which passed through the Parliament concurrently with the ADT Act itself.
81 The amended FOI Act now in s 53 gives "a person who is aggrieved by a determination made by an agency or Minister under section 24" an unqualified right to "apply to the Tribunal for a review of the determination". This provision causes the determination to be a "reviewable decision" within s 8 of the ADT Act, which can be the subject of an application for review under s 55 of the ADT Act, and which the Tribunal must review in accordance with s 63 of the ADT Act.
82 The amendments to the FOI Act which replaced Division 2 of Part 5 also addressed some special procedural aspects of the Tribunal's review proceedings in FOI matters. In my opinion none of these is to the effect of the repealed s 55(5). What appears now as s 55 was previously s 55(6), and addresses a different concern. A special modification to the Tribunal's usual substantive review power was included, but this related only to its consideration of restricted documents (see s 57(1)).
83 In my opinion the amendments to the FOI Act suggest that Parliament expected that the Tribunal otherwise would perform its usual function of merits review as provided by the Administrative Decisions Tribunal Act. An inference arises from the repeal that it intended that external merits review should no longer be restrained by the previous special limitation (c.f. Mathieson v Burton (1971) 124 CLR 1 at 26).
84 The substantive function of the Tribunal provided by s 63(1) of the ADT Act is "to decide what the correct and preferable decision is having regard to the material then before it, including ... any applicable ... law". In effect, this provision adopts jurisprudence developed in relation to the Commonwealth Administrative Appeals Tribunal, and requires the Tribunal to address the merits of the decision made by the primary decision-maker by reference to the same legal parameters as governed the primary decision (c.f. Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 per Bowen CJ and Deane J at 68, Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 - the change from "correct or preferable" is, in my opinion, without significance).

85 Consistent with this jurisprudence, absent any special limitation on the Tribunal's review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act - indeed the duty - when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it.’
66 It will be seen that the Tribunal in Mangoplah has derived the existence of an override discretion from the absence of the express limitation that previously applied to the District Court.

67 In my view, all that can be assumed from that is that the express prohibition has been removed. FOIA can not thereby readily be interpreted as now impliedly conferring power on the Tribunal to exercise the s 25 discretion. A court or tribunal must exercise considerable caution before reading words into a statute. The task of ‘filling in the gaps’ should ordinarily be left to Parliament.

68 McHugh JA in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 after reviewing the principles relevant to reading words into a statute stated:


‘In Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275, this Court applied the principles formulated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-6 concerning the circumstances in which a court may read words into a statutory provision into a legislative provision to give effect to its purpose. Lord Diplock said that a court may read words into a statutory provision when three conditions are fulfilled. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.’

69 There is some debate now arising from the observations of Spigelman CJ in R v Young (1999) 46 NSWLR 681 at 687-90 as to whether the court can be said to be engaged in ‘reading in’ words when it addresses an apparent omission or whether it is simply engaging in the process of construing the expressed provisions in a way different to their literal or ordinary meaning: see generally Pearce & Geddes, Statutory Interpretation in Australia (5th ed 2001) at [2.29] and following. It is not necessary to discuss this debate in the present context. Spigelman CJ did note that if the three tests set out by McHugh JA were met, it did not follow that the court then should proceed to supply the omission. The point of the tests, according to the Chief Justice, is that if any of the three conditions are absent ‘the court cannot construe as statute with the effect that certain words appear in the statute’ (at 678).

70 Returning to the three tests. As to the first test, in general it is clear what ‘mischief’ FOIA deals with – secrecy in government, and lack of openness in relation to the availability of information. There are a range of ways in which that mischief can be dealt with, one of which is the establishment of a regime of access to documents subject to exemptions and exclusions. The second test states that ‘the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved.’ This test can not in my view be satisfied, and nor can the third test, being that ‘the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.’

71 These difficulties are clearly illustrated by reference to the Victorian legislation, to which reference was made in Mangoplah.

72 As noted earlier in these reasons, Victoria’s public interest override provision is the subject of express conferral, by way of s 50(4) of the Victorian FOIA. This is in a context where Ministers and agencies have a similar discretionary power to that contained in s 25 of the NSW Act permitting them to release a document even if an exemption could be relied upon (this is achieved by somewhat elliptical language - see Victorian Act, s 20(2) - a Minister or agency is ‘not required’ to give access to an exempt document). The override power is located in the provisions dealing with the Tribunal’s order-making powers. It is not located alongside the Minister’s or agency’s powers of determination, as is contended for in Mangoplah in the case of New South Wales.

73 Section 50(2) of the Victorian Act is in similar terms to s 53(3) of the NSW Act and sets out the kind of determinations that the Victorian Tribunal can review. It is clear that the override power given to the Tribunal lies outside the ordinary scheme of review of determinations. The override power is conferred directly on the Tribunal by s 50(4). Section 50(4) states that the Tribunal has in addition to any other power ‘the same power’ as the Minister or agency to order disclosure of an otherwise exempt document, and then sets out the public interest ground with the exceptions noted earlier.

74 This is, in my view, how one would have expected such a sensitive issue to have been dealt with by the New South Wales legislation.

75 At Parliamentary level, the original debates over the scope of FOI laws occurred within the Commonwealth Government and Parliament, culminating in the Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information report of 1979. The issue of whether the external review tribunal should have a public interest override received close attention and was the subject of a number of submissions. The Committee referred to the issue at [15.9] in these terms:


‘(c) An alternative to incorporating a public interest criterion in selected exemptions is to confer upon the Tribunal power to order that access be granted to an exempt document where the Tribunal is of the opinion that the public interest requires that access to the document should be granted. In effect, this would amount to a discretionary power conferred upon an agency to release an exempt document. ...’.

76 It can be seen how closely s 50(4) of the Victorian law tracks the words used in this passage (‘the public interest requires’).

77 The Committee did not support the inclusion of a public interest override in the proposed Commonwealth legislation. Instead it recommended the incorporation of public interest tests within specified exemptions. It expressly rejected the incorporation of a public interest test into the Cabinet documents exemption: report, [18.13].

78 The first FOI law to be enacted was the Commonwealth Freedom of Information Act 1982. It was followed a few months later by the Victorian law. The Commonwealth law had been criticised for not incorporating a public interest override. Moreover it took a narrow approach to the powers of the review tribunal (powers of recommendation only) in respect of the more sensitive exemption categories: see, e.g., O’Connor, ‘The Freedom of Information Act’ (1982) 7 Legal Services Bulletin 55 at 55-6.

79 The Victorian law did not qualify the external review function in this way; and went further that the Senate Committee report in conferring on the external review body an override power, from the outset subject to two limitations (Cabinet documents and personal records).

80 In Victoria the public interest override has been described as ‘central to the operation’ of the Act: Hulls v Victorian Casino and Gaming Authority (1997) 11 VAR 213 at 222.

81 There is, in my view, nothing other than the repeal of the express bar on the District Court’s power, to support the making of an implication that the Tribunal in New South Wales has had such a major discretion added to its armoury.

82 In Mangoplah the Tribunal referred to a number of policy reasons why it would be desirable for there to be a power similar to that found in Victoria. This is, as I have sought to demonstrate, a major policy question – possibly the most fundamental in the formulation of FOI review schemes, and is clearly one on which express direction would be expected from Parliament.

83 Accordingly in my view it is not open to applicants for review to seek an order, purportedly in exercise of powers conferred by s 25, that a Minister or agency release an otherwise exempt document. That discretion remains entirely with the Minister or agency.

84 One of the cases cited in support of the contrary analysis in Mangoplah is Mathieson v Burton (1971) 124 CLR 1 at 26 per Gibbs J. There his Honour, citing various authorities, stated ‘the weight of authority favours the view that it is permissible to have regard to a repealed portion of an Act for the purpose of construing what remains’. That was a case where it was contended that the repeal of a provision had the effect of depriving a protected tenant of the right to continue in occupation. There were detailed provisions going to the nature of a protected tenant’s right of occupation. The court was of the view that the repealed provision supported rather than detracted from the continuation of those rights. See per Gibbs J at 26. This case does not, in my view, assist in the present discussion.

85 I should add, as should be obvious, that these conclusions do not in any way affect the Tribunal’s duty to consider questions of ‘public interest’ where that consideration is an express element of the terms of an exemption, as is for example the case in respect of cl 4(2)(b), cl 5(b), cl 9(1)(b), cl 13(b), cl 14(b), cl 15(b) and cl 16(b).

ORDERS
86 The application for review is dismissed. The Minister’s decision is affirmed.