Neary v Treasurer of New South Wales

[2002] NSWADTAP 4

Appeal Panel

CITATION:	Neary -v- Treasurer of New South Wales [2002] NSWADTAP 4
PARTIES:	APPELLANT Vincent Neary RESPONDENT Treasurer of New South Wales
FILE NUMBER:	003394
HEARING DATES:	08/02/2002
SUBMISSIONS CLOSED:	02/08/2002
DATE OF DECISION:	02/15/2002
DECISION UNDER APPEAL:	Neary -v- Treasurer of New South Wales
BEFORE:	Hennessy N (Deputy President); Robinson MA - Judicial Member; Pun A - Member
CATCHWORDS:	leave to extend to the merits
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003394
DATE OF DECISION UNDER APPEAL:	02/15/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Freedom of Information Act 1989 Interpretation Act 1987
CASES CITED:	Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93 Lloyd v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 26
REPRESENTATION:	APPELLANT In person RESPONDENT N Sharp, solicitor
ORDERS:	1. The Tribunal’s decision is set aside; 2. The appellant’s application for leave to extend the appeal to a review of the merits of the appealable decision is refused; 3. The case is remitted to be heard and decided again by a differently constituted Tribunal, with the hearing of fresh evidence if necessary.

Introduction
1 This is an appeal from a decision of the Tribunal dated 24 September 2001. The Tribunal affirmed the decision of the respondent not to give Mr Neary access to certain documents that he had applied for under the Freedom of Information Act 1989 (FOI Act).

Jurisdiction
2 The power of the Appeal Panel to hear this matter is found in s 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113 of the ADT Act states that:

(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal:
(a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.
(3) An appeal must be made:
(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or
(b) within such further time as the Appeal Panel may allow.
(4) An appeal is to be made in the manner prescribed by the rules of the Tribunal.
3 The powers of the Appeal Panel if the appeal is restricted to a question of law are set out in s 114:
If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),
(b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for an order made by the Tribunal.
History of the proceedings
4 The background to this matter is set out in some detail in the Tribunal’s decision at paragraphs 2 to 10. In addition to that information, it is important to note that Mr Neary originally made an application under the FOI Act to the Secretary, NSW Treasury. That application was unsuccessful before this Tribunal but Mr Neary did not appeal against that decision. Mr Neary then applied under s 35 of the FOI Act to the Treasurer for similar documents. Section 35 provides that “A person has a legally enforceable right to be given access to a Minister's documents in accordance with this Act.” Consequently the correct respondent in these proceedings is the Treasurer, New South Wales.

5 Mr Neary lodged an Application for Review with the Tribunal on 15 December 2000. At the case conference on 16 February 2001, the parties consented to the Tribunal determining the question of jurisdiction “on the papers” pursuant to s 76 of the ADT Act. The question of jurisdiction related to six documents in dispute. According to the respondent, Documents 1 and 4 are submissions and recommendations to the Cabinet Standing Committee on the Budget. Documents 2 and 5 are draft minutes of meetings of the Cabinet Standing Committee on the Budget and record the deliberations and decisions of the Cabinet Standing Committee. Documents 3 and 6 are minutes of meetings of the Cabinet Standing Committee on the Budget and record the deliberations and decisions of the Cabinet Standing Committee.

6 The question of jurisdiction related to the action of the Director General of the Cabinet Office issuing a certificate pursuant to s 124(4) of the ADT Act. The certificate stated that the six documents referred to above are exempt documents within the meaning of Clause 1 of Schedule 1 to the FOI Act because they are cabinet documents. The respondent submitted that this certificate means that the Tribunal did not have jurisdiction to hear the matter. The respondent lodged two sets of written submissions, on the jurisdictional issue and other matters, one dated 7 March 2001 and the other dated 23 April 2001. Mr Neary lodged written submissions on 22 June 2001.

7 The parties did not consent to the Judicial Member determining any issues, apart from the jurisdictional issue “on the papers”. Without this consent, the Tribunal went on to consider the merits of the application and affirmed the respondent’s decision. Mr Neary submitted that the fact that the Tribunal went on to determine the merits of the application “on the papers” amounted to a breach of natural justice (or procedural fairness). He alleges that he was not given sufficient opportunity to put his evidence and submissions in relation to the merits of the case. This was Mr Neary’s first point of appeal.

8 When determining the matter under s 76 of the ADT Act, the Tribunal decided that despite the certificate issued by the Director General, it does have jurisdiction to determine Mr Neary’s application. The Tribunal based this view on the decision of the Tribunal in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93. The Tribunal stated that:

In Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93 the Tribunal held that it had power pursuant to s 63 of the Tribunal Act to review the decision of an agency to refuse access to an exempt document.
9 In Mangoplah , the Tribunal decided that it has an overriding discretion to release exempt documents in certain circumstances. Member Smith described the discretion, commonly known as the “override discretion”, as follows at [90]:
In general, whether there is occasion to exercise the override discretion must depend upon the particular exemption and the circumstances of the case. The statutory criteria for some exemptions themselves bring into balance all public interest considerations which could favour release or justify withholding. Other exemptions have more limited criteria. For these, satisfaction of the criteria provides a justification for withholding the document, but does not complete the decision-making. The decision-maker must decide whether there is something about the information itself or the surrounding circumstances which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is "reasonably necessary for the proper administration of the Government" (s 5(2)(b)).
10 Mr Neary’s appeal did not state that the Tribunal made an error of law in applying Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93. Ms Sharp submitted that despite the fact that Mr Neary had not appealed on this point, it was a live issue before the Appeal Panel. Her reasoning was that the respondent had submitted both in his Reply and in written submissions to the Appeal Panel that Mangoplah was wrongly decided. It was not open for the respondent to cross-appeal because he agreed with the ultimate decision of the Tribunal. Ms Sharp submitted that pursuant to s 112 and s 113 of the ADT Act, a party may only appeal against an “appealable decision”. In her submission the decision is the orders made by the Tribunal and not its reasoning process. Consequently the respondent could not appeal against that part of the Tribunal’s decision which applied Mangoplah .

11 We appreciate the difficulties faced by the respondent in circumstances where there are no specific procedures in the ADT Act or the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 (the Rules) for a cross-appeal or for the filing of a Notice of Contention, as there is, for example, in the Supreme Court. Nevertheless, the Appeal Panel can only deal with matters which are validly before it. The only way for a matter to be validly before the Appeal Panel is for it to be raised, either directly or impliedly, by a Notice of Appeal. Contrary to the respondent’s submission, we find that it would have been open for the respondent to lodge a Notice of Appeal either before or after Mr Neary had lodged his Notice. Section 113 of the ADT Act states that:

A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
12 Ms Sharp submitted that an appealable decision comprises the Tribunal’s orders rather than its reasoning process. Even if this view is accepted, a party’s appeal is not necessarily against those orders. Section 113(1) gives any party to proceedings in which an appealable decision has been made the right to appeal to the Appeal Panel. If the respondent raised the correctness of the decision in Mangopla h in a Notice of Appeal, it would have been a matter validly before the Appeal Panel.

13 After deciding that the Tribunal had jurisdiction to hear the application, it went on to exercise its discretion (as outlined in Mangoplah) as to whether Mr Neary should be given access to the six documents over which a s 124(4) certificate had been issued. The Tribunal impliedly accepted that the certificate was conclusive evidence that the documents were cabinet documents and were exempt under the FOI Act. Without ever seeing the documents in dispute, the Tribunal went on to set out the public interest arguments for and against disclosure and came to the view that it should not exercise its overriding discretion to give Mr Neary access to those documents.

Grounds of Appeal
14 The questions of law raised by Mr Neary as identified by the Appeal Panel at the hearing, were as follows:

1. The Tribunal erred in law by failing to afford Mr Neary procedural fairness.
2. The Tribunal erred in law in their interpretation of s 124 of the ADT Act.
Procedural fairness
15 Both parties agreed that after determining the jurisdictional issue, the Tribunal went on to consider the merits of the case. Both parties understood that the Tribunal would only determine the jurisdictional issue “on the papers” pursuant to s 76 of the ADT Act. Section 76 states that:
The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.
16 Ms Sharp submitted that the Tribunal’s conduct in going on to determine the merits of the case does not amount to a breach of procedural fairness for two reasons. Firstly, the Tribunal has power under s 76 to determine proceedings on the papers whether or not the parties consent. (Lloyd v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 26 at [16].) The Tribunal merely needs to be satisfied that “the issues for determination can be adequately determined in the absence of the parties.” In Ms Sharp’s view, the issue in this case could be adequately determined in the absence of the parties because there was nothing further that Mr Neary could have put to the Tribunal which would have been relevant to a decision on the merits. Mr Neary had already made detailed written submissions on 22 June 2001 on the merits as well as the jurisdictional issue.

17 Mr Neary’s submission was twofold. Firstly, he would have adduced evidence in relation to the question of whether it was in the public interest to release the documents notwithstanding that they are Cabinet documents, if that was the Tribunal’s finding. He would have summonsed the respondent and asked questions which would have established that the public interest in releasing the six documents outweighed the public interest in keeping them secret. Secondly, he would have asked questions which would have established that the respondent had not produced all the documents which were the subject of his FOI application.

18 As well as claiming that the documents over which the Director General had issued a s 124(4) certificate should be released, Mr Neary claimed in his written submissions to the Tribunal that the respondent had not conducted an “adequate search” for the documents described in his application. (See Mr Neary’s written submissions dated 22 June 2001 at page 9, paragraphs 95 to 108.) The notion of an “adequate search” for documents was discussed in Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52. The issue in that case was whether a determination that no further documents are held by an agency is a "determination made by an agency or Minister under section 24.” The second question was whether the applicant is "a person who is aggrieved by" such a determination in terms of s 53(3) of the FOI Act. These questions were determined in favour of Mr Beesley and the matter was listed for hearing on the substantive question of whether the search undertaken by the Police Service in response to Mr Beesley's FOI application was "a sufficient one in all the circumstances."

19 In summary, by going on to determine the merits of the case, Mr Neary says that he was denied the opportunity to put further evidence and submissions in relation to two matters. These matters are the public interest override discretion and the issue of whether the respondent had undertaken an adequate search for the documents the subject of his application.

Appeal Panel’s decision on procedural fairness
20 We agree with the respondent’s submission that there is no need for the parties to consent before the Tribunal determines to hear a matter “on the papers” pursuant to s 76. However we do not agree that the issues for determination in this case could be adequately determined in the absence of the parties. While Mr Neary made some written submissions in relation to the public interest issue, he says he would have adduced evidence on that point and made further submissions based on that evidence. He did make submissions on the adequacy of search issue, but this matter was not dealt with in the Tribunal’s decision. Even if Mr Neary had brought all the evidence and made all the submissions he could have made on the public interest issue, the Tribunal did not address his submission in relation to adequate search when reviewing the merits of the case. In this respect it has failed to exercise its jurisdiction.

21 By going on to determine the merits of the case, the Tribunal denied Mr Neary procedural fairness. Section 73(2) of the ADT states that:

The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
22 Procedural fairness requires that Mr Neary be given an opportunity to be heard. Indeed, the Tribunal has an obligation under s 73(4)(c) of the ADT Act to take such measures as are reasonably practicable:
to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.
23 Our conclusion is that the Tribunal erred in law by going on to consider the merits of the application in the absence of the parties because the parties were not afforded procedural fairness in that process.

24 Ms Sharp pointed out that the Tribunal did not deal with an issue that she would have raised in relation to the merits of the application. She would have submitted that the meaning of “Ministerial documents” in s 35 of the FOI Act is very narrow and does not include all or some of the documents which Mr Neary applied for. Given our orders, Ms Sharp will be able to bring evidence and make submissions on this issue.

Interpretation of s 124 of the ADT Act
25 The second ground of appeal was that the Tribunal erred in its construction of s 124 of the ADT Act. The respondent in the appeal proceedings submitted that the Tribunal did not deal expressly with the substance of the respondent’s submissions on the jurisdictional question. That submission was that a s 124(4) certificate operates as conclusive proof that the documents are exempt documents and there is no room for the exercise of any so-called override discretion. On our reading, the Tribunal impliedly found that s 124(4) does operate as conclusive proof that the documents in dispute in these proceedings are exempt documents. However the Tribunal rejected the respondent’s submission that s 124(4) certificate barred further action being taken by the Tribunal. (See paragraph 17 of Tribunal’s decision.) With respect, we disagree with this conclusion for the reasons set out below.

26 Section 124(4) states that:

(1) General rule
Except as provided by this section, nothing in this Act requires or authorises any person or body to disclose any exempt document to another person or body.
(2) Disclosure to person or body other than Tribunal
The provisions of the Freedom of Information Act 1989 continue to apply to the disclosure of exempt documents to any person or body other than to the Tribunal as if this Act had not been enacted.
(3) Disclosure to Tribunal
If a provision of this Act requires or authorises any person or body to disclose any document to the Tribunal in relation to any proceedings before it and that document is an exempt document:
(a) the Freedom of Information Act 1989 does not prevent the disclosure of the document to the Tribunal, and
(b) the Tribunal is to do all things necessary to ensure that the document is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings unless the person or body disclosing the document to the Tribunal consents to the further disclosure.
(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.
(5) Definitions
In this section:
disclosure of a document includes the following:
(a) the provision of copies of the document,
(b) the granting of access to the document,
(c) the disclosure of the contents of the document.
document includes a part of a document.
exempt document means an exempt document within the meaning of the Freedom of Information Act 1989.
27 In making its submissions that a s 124(4) certificate deprives the Tribunal of jurisdiction to determine the applicant’s application, the respondent appears to be reading the words “Any such certificate is conclusive of that fact” in s 124(4), in isolation. These words cannot be properly understood unless they are read in the context of the whole section and of the objectives of the ADT Act. In K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315, Mason J set out the parameters of the contextual approach to statutory interpretation:

. . . to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context ( Cooper Brookes (Wollongong) Pty Ltd v FC of T (1981) 35 ALR 151 at 156-157, 169; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, 173). Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.
28 When determining the meaning of words in a statute they must be given their ordinary and natural meaning and, when determining that meaning, it is appropriate to prefer a meaning which would promote the objects of the legislation (see section 33 Interpretation Act 1987 ). The objects of the ADT Act, as set out in s 3, are as follows:
(a) to establish an independent Administrative Decisions Tribunal:
(i) to make decisions at first instance in relation to matters over which it is given jurisdiction by an enactment, and
(ii) to review decisions made by administrators where it is given jurisdiction by an enactment to do so, and
(iii) to exercise such other functions as are conferred or imposed on it by or under this or any other Act or law,
(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,
(c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner,
(d) to provide a preliminary process for the internal review of reviewable decisions before the review of such decisions by the Tribunal,
(e) to require administrators making reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for their decisions on request,
(f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,
(g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.
29 These objects make it clear that apart from establishing a regime for merits review of administrative decisions (and for the determination of some original decisions) the ADT Act regulates the Tribunal’s procedure. There is no mention of the Freedom of Information Act 1989 or of access to government documents generally in the objects of the ADT Act.

30 Section 124(1) sets out the general rule that except as provided in s 124, nothing in the ADT Act requires or authorises any person or body to disclose any exempt document to another person or body. Exempt document is defined in the section to mean “an exempt document within the meaning of the FOI Act." Two provisions of the ADT Act which require or authorise a person to disclose documents to another person or to the Tribunal are s 58 and s 84. Section 58(1)(b) requires an administrator whose reviewable decision is the subject of an application for review to the Tribunal to lodge a copy of every document that the administrator considers to be relevant to the determination of the application. Section 58(4)(b) allows the Tribunal to direct an administrator to lodge a copy of relevant documents in the possession or control of the administrator. Section 84 allows a summons to produce documents or other things to be issued to a person on the application of a party or at the direction of the Tribunal. Confirmation that s 124 was contemplating provisions such as s 58 can be found in s 58(7)(c). That section provides that nothing in s 58 requires the disclosure of, of the granting of access to, any document in contravention of s 124.

31 Section 124(2) makes it clear that the provisions of the FOI Act continue to apply to the disclosure of an exempt document to any person or body (other than the Tribunal) as if the ADT Act had not been enacted. This means that the ADT Act in general (and s 124 in particular) does not apply to a person, such as Mr Neary, applying for access to exempt documents under the FOI Act. However that section is expressed not to apply to the Tribunal. This means that s 124, and other relevant provisions of the ADT Act, apply to the disclosure of exempt documents to the Tribunal.

32 Section 124(3) provides that if a provision of the ADT Act (such as s 58 or s 84) requires or authorises any person to disclose a document to the Tribunal and that document is an exempt document, the FOI Act does not prevent disclosure to the Tribunal. However, the Tribunal is to do all things necessary to ensure that the document is not disclosed to any unauthorised person unless the Tribunal has the consent of the person or body disclosing the document. This provision is an exception to the general rule in 124(1) that nothing in the ADT Act requires or authorises any person or body to disclose any exempt document. Where that disclosure is authorised or required under the ADT Act (for example pursuant to s 58 or 84) the FOI Act does not prevent disclosure to the Tribunal.

Appeal Panel’s decision on the proper construction of s 124(4)
33 In the context of these three provisions (s 124(1), (2) and (3)), section 124(4) states that 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 is conclusive of that fact and authorises any person who would otherwise be required under the ADT Act to disclose the document with the Triubnal to refuse to disclose it to the Tribunal.

34 If the Tribunal were requiring that the documents in dispute be disclosed under the ADT Act, the Director General of The Cabinet Office would be able to certify the documents as exempt and refuse to disclose them to the Tribunal. That is not the situation in this case. Section 58 of the ADT Act does not even apply to proceedings under the FOI Act. (See s 53(5) of the FOI Act.) The Tribunal has not summonsed the document under s 84. Our conclusion, based on a plain reading of this section in context and having regard to the objects of the ADT Act, is that s 124 has no effect on Mr Neary’s rights under the FOI Act. The Tribunal reached a similar conclusion on the interpretation of s 124 in Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 at [86] to [89].

35 Similarly s 124 has no effect on the jurisdiction of the Tribunal to hear and determine a matter under the FOI Act. In particular, s 57 of the FOI Act allows the applicant to apply to the Tribunal to consider the grounds on which the respondent claims that a document is a restricted document. If the Tribunal is not satisfied that there are reasonable grounds for the claim that the document is restricted, it may require the document to be produced in evidence before it. For the purposes of any proceedings under s 57 the Premier is a party to the proceedings. The Tribunal’s interpretation of s 57 of the FOI Act is set out in Kennedy -v- Commissioner of Police [2001] NSWADT 39.

36 Further support for our conclusion on the proper construction of s 124 comes from identifying the consequences of accepting the respondent’s submission. The respondent maintains that a s 124(4) certificate prevents the Tribunal from hearing the application. If this submission were accepted then the detailed legislative scheme set out in s 58A, s 58B, s 58C and s 59 of the FOI Act would be made superfluous in relation to cabinet documents. Section 59 allows the relevant Minister to sign a certificate that a specified document is a restricted document and is exempt. Such a certificate is conclusive evidence that the document is a restricted document. A restricted document is defined in the FOI Act as a document referred to in any one or more of the provisions of Part 1 of Schedule 1. Part 1 covers cabinet documents, executive council documents and documents affecting law enforcement and public safety. A review applicant may apply to the Supreme Court under s 58A to consider the grounds on which it is claimed that a document that is the subject of a Ministerial Certificate is a restricted document. If the Supreme Court is not satisfied that there are reasonable grounds for the claim, the matter would be remitted to the Tribunal.

37 If s 124(4) has the effect submitted by the respondent, then a certificate from the Director General, which is not subject to review by the Supreme Court, would be conclusive evidence that a document is an exempt document because it is a cabinet document. If this were parliament’s intention, it would have amended the FOI Act and repealed the provisions relating to a Ministerial Certificate because they would have been superfluous, at least in relation to cabinet documents.

Extending the appeal to the merits
38 Our conclusion is that the Tribunal erred in law both in failing to afford procedural fairness to the applicant and in its construction of s 124(4) of the ADT Act. The appellant applied for the appeal to be extended to a review of the merits of the appealable decision. Although two errors of law have been identified, we do not propose to extend the appeal to a review of the merits. The Tribunal should be the primary fact finder and decision maker and the Appeal Panel should not take over that role unless there are good reasons for it to do so. There are no such good reasons in this case.

Orders
39 Pursuant to s 114 of the ADT Act, the Appeal Panel makes the following orders:

1. The Tribunal’s decision is set aside.
2. The appellant’s application for leave to extend the appeal to a review of the merits of the appealable decision is refused.
3. The case is remitted to be heard and decided again by a differently constituted Tribunal, with the hearing of fresh evidence if necessary.