Re Matthews and Australian Securities and Investments Commission
[2010] AATA 649
•27 August 2010
CATCHWORDS – FREEDOM OF INFORMATION –
exemptions under ss 36, 37(1)(b), 37(2)(b), 40(1)(d), 42 and 45 – decision varied.
FREEDOM OF INFORMATION – deletion of exempt matter under s 22 – what is possible – what is reasonably practicable – material not deleted.
FREEDOM OF INFORMATION – whether searches for requested documents adequate – relevance of record keeping practices and procedures in considering adequacy – relevance of logical flow of documents in the file and against the events to which they relate in considering adequacy - searches adequate.
PRACTICE AND PROCEDURE – whether possible to review decision relating to approximately 3,500 pages by reference to samples – consideration of merits review and Tribunal’s powers and duties – sampling rejected.
PRACTICE AND PROCEDURE – whether applicant permitted to withdraw part of application – not permitted but Tribunal has power to affirm that part of the decision.
PRACTICE AND PROCEDURE – limits on the use that parties may make of documents lodged in the Tribunal and summonsed – differences between lodgement and production on summons – limits on use that may be made of material produced on summons removed if admitted in evidence.
PRACTICE AND PROCEDURE – stay of operation of decision – source of power – whether s 41(2) or s 43(5B) of the AAT Act is appropriate source – s 43(5B) is the appropriate and only source of power.
Administrative Appeals Tribunal Act 1995 ss 21(2), 25(4A), 28(3A)(b), 29(1)(d), 29(4), 29A(2), 29B, 30(1)(a), (b) and (d), 34D(1)(b), 34J, 35(2)(b) and (c), 35(3) and (3)(b), 35AA(c), 36(2), 36B(2) and 37(1), (1AA), (1AB), (1AC), (1AE), (1AF), (1A), (1B) and (2), 40(1A), 42A(1A) and (1B), 42B, 42C, 43, 61(3) and (4)
Archives Act 1983 ss 3(1), 5(2)(c), 24(1), 24(2)(a), (b) and (c)
Australian Securities and Investments Commission Act 1989 s 7
Australian Securities and Investments Commission Act 2001, ss 5(1), 9(1), 11(11), 12A, 17, 18, 19, 24, 25, 26, 27, 102, 124(4C), 127(4)(d), 127, 148 and 261
Corporations Act 2001 ss 250N, 250N(1), (2) and (4), 341(1) and (2) Parts 2G.2, 2M.2, 2M.3 and 2M.4, 5.3A
Financial Management and Accountability Act 1997
Freedom of Information Act 1982 ss 3(1), 9(1)(a), 11, 22, 29, 36, 40, 42, 45, 54(1), 55, 61(1)
Freedom of Information Act 5 USC 552
Freedom of Information Act 1992 (Vic) s 50(4)
Freedom of Information Amendment Act 1991 No. 137 of 1991: s 33
Judiciary Act 1903 ss 55D(1), 55E(2), (3) and (6), 55ZF, Part VIIIB, Division 2
Administrative Appeals Tribunal Regulations 1976 3 15 and Forms 8 and 9
Australian Securities and Investments Commission Regulations 2001 rr 8AA and 8A
Freedom of Information (Fees and Charges) Regulations r 11
AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705
Applicant VEAL v Minister of Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 222 ALR 411; 87 ALD 512; (2005) 80 ALJR 228
Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607; 13 ALD 195
Ascic v Australian Federal Police (1986) 11 ALN N184
Attorney-General’s Department v Cockcroft (1986) 64 ALR 97
Attorney-General (NT) v Maurice (1986) 161 CLR 475
AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52; 49 ALR 385
Bartlett v Secretary, Department of Social Security (1997) 49 ALD 380
Booker and Department of Social Security AAT 6189, 13 September, 1990
Botany City Council v Minister for Transport and Regional Development (1996) 137 ALR 281
Button v Evans (1984) 56 ALR 317
Collins v Parker Unreported, SC (NSW), 11 May 1984
Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266
Commonwealth of Australia v Lyon Unreported (1979) 24 ALR 300
Corrs Pavey Whiting and Byrne v Collector of Customs of Victoria and Alphapharm Pty Ltd [1987] FCA 266; (1987) 14 FCR 434; 13 ALD 254
Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529
Department of Health v Jephcott [1985] FCA 370; (1985) 8 FCR 85; 62 ALR 421; 9 ALD 35
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577
Director of Public Prosecutions v Smith [1991] 1 VR 63; (1991) 100 FLR 6
Ellison v Vukicevic (1986) 7 NSWLR 104
Environmental Protection Agency v Mink 410 U.S. 73 (1973) at 86
Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391
Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435
Grant v Downs (1976) 135 CLR 674; 11 ALR 577
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Harris v Australian Broadcasting Commission (1984) 6 ALN N347
Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 551; 5 ALD 545
Harris v Australian Broadcasting Corporation (No 2) [1983] FCA 281; (1983) 78 FLR 264
Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 327
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; 106 ALR 611
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259
Hearts of Oak Assurance Co v Attorney-General [1931] 2 Ch 370; [1932] AC 392
Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673
Johns v Australian Securities Commission (1993) 178 CLR 408
Jorgensen v Australian Securities and Investments Commission [2004] FCA 143; (2004) 208 ALR 73
Kelly v JRA Ltd (1990) 92 ALR 651
Kavvadias v Commonwealth Ombudsman (No 2) (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198
Kelson v Forward (1995) 60 FCR 39
London Artists Ltd v Littler [1969] 2 QB 375
McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333
Minter v Priest [1930] AC 558
Noordhof v Bartlett (1986) 12 FCR 209
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467; 147 ALR 322; 48 ALD 222
Re Proh and Tax Agents’ Board (Victoria) [2010] AATA 149; (2010) 115 ALD 68
Prudential Assurance Co v Fountain Page [1991] 3 All ER 878; 1 WLR 756
Purden v Registrar in Bankruptcy (1982) 43 ALR 512
Re ABCD and Commissioner of Taxation [2008] AATA 898; 2008) 50 AAR 287; (2008) 75 ATR 393
Re Bracken and Minister for Education and Youth Affairs [1985] AATA 8; (1984) 2 AAR 406
Re Callejo and Department of Immigration and Citizenship [2010] AATA 244; (2010) AAR 308
Re Carver v Department of the Prime Minister and Cabinet (1987) 6 AAR 317
Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139
Re Connolly and Department of Finance (1994) 34 ALD 655
Re Doran Constructions Pty Ltd (in liq) (2001) 194 ALR 101
Re General Merchandise & Apparel Group P/L and CEO of Customs and Australian Weaving Mills [2009] AATA 988; (2009) 114 ALD 289; 51 AAR 1
Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626
Re James and Others and Australian National University (1984) 6 ALD 687
Re Lordsdale Finance Limited and Department of the Treasury [1985] AATA 174
Re Millis and Australian Archives (1997) 47 ALD 427
Re Murtagh and Commissioner of Taxation (1984) 54 ALR 313; 6 ALD 112
Re Nitas and Minister for Immigration and Multicultural Affairs
Re Pergamon Press Ltd [1971] Ch 388
Re Petroulias and Commissioner of Taxation [2006] AATA 333; (2006) 62 ATR 1175
Re Radar Investments Pty Ltd and Ors and Health Insurance Commission [2004] AATA 166; (2004) 80 ALD 733
Re Slater and Cox (Director-General, Australian Archives) (1988) 15 ALD 20
Re Smith, Kline and French Laboratories (Australia) Ltd and Others v Secretary, Department of Community Services [1991] FCA 150
Re Thies and Department of Aviation (1986) 9 ALD 454
Re Waterford and Treasurer of the Commonwealth (No 1) (1984) 6 ALN N347
Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588
Re Waterford and Treasurer of Commonwealth of Australia (No.2) [1985] AATA 114; (1985) 8 ALN N37
Re Williams and Registrar of the Federal Court of Australia (1985) 8 ALD 219
Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129; 209 ALR 271
Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106
Rilstone v BP Australia Pty Ltd [2007] FCA 1557
Robert Bosch (Australia) Pty Ltd v Mr Egon Fice, Member of the Administrative Appeals Tribunal [2009] FCA 247
Sankey v Whitlam (1978) 142 CLR 1
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163; 36 FCR 111
Smith and Aboriginal and Torres Strait Islander Commission [2000] AATA 512
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163; 16 AAR 28
Scott v Scott [1913] AC 417; [1911-1913] All ER 1
Spalla and Ors v St George Motor Finance Ltd and Ors [2004] FCA 1014; (2004) 209 ALR 703
Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2) [2007] FCA 1445
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561
The News Corporation Ltd v National Companies and Securities Commission [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347
Tillmanns Butcheries Pty Ltd v. Australasian Meat Employees Union & Ors (1979) 27 ALR 367; 42 FLR 331
Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388; 120 ALR 440
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Waterford v The Commonwealth of Australia (1987) 163 CLR 54
DECISION AND REASONS FOR DECISION [2010] AATA 649
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2006/0557
GENERAL ADMINISTRATIVE DIVISION )
Re WILLIAM MATTHEWS
Applicant
AndAUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent
AndNEWMONT AUSTRALIA LTD
Party Joined
AndMICHAEL RYAN
Party Joined
AndJEFFREY KNAPP
Party Joined
DECISION
Tribunal: Deputy President S A Forgie
Date: 27 August 2010
Place: Melbourne
Decision:The Tribunal decides to:
1.by consent, affirm the decision of the respondent dated 16 August 2004 in so far as it decides that the following documents are exempt under the Freedom of Information Act 1982:
(1)documents 342 – 345;
(2)documents 347 – 354;
(3)documents 356 – 365;
(4)documents 369 – 370;
(5)documents 372 – 421;
(6)document 423;
(7)documents 426 – 440;
(8)documents 448 – 475;
(9)documents 477 – 513;
(10)documents 515 - 575;
(11)document 578;
(12)documents 580 – 582;
(13)documents 584 – 637;
(14)documents 639 – 641; and
(15)documents 642 - 1322;
2.by consent:
(1)set aside the decision of the respondent dated 16 August 2004 in so far as it decides that the following documents are exempt under the Freedom of Information Act 1982:
(a)documents 179, 180, 215, 241, 244, 421, 444 and 650; and
(b)documents 346, 355, 366, 367, 368, 371, 422, 424, 425, 441, 447, 476, 514, 582 and 584; and
(2)substitute for that part of the decision a decision that:
(a)Documents 577 and 583 are not exempt under s 37(1)(b) of the Freedom of Information Act 1982; and
(b)Document 579 is not exempt under s 37(1)(b) of the Freedom of Information Act 1982 in relation to the whole of the document other than:
(i)the passage on page two beginning with the word “A” in the fourteenth line and ending with the word “meeting.” on the seventeenth line; and
(ii)the passage on page two beginning with the word “Several” in the twenty third line and ending with the word “that” in the thirtieth line;
3.in so far as the decision of the respondent dated 16 August 2004 decides that Documents 1 to 341, 577, 579 and 583 are exempt under
ss 36 of the Freedom of Information Act:
(1)set aside the decision except in so far as it relates to the passage in Document 579 commencing with the word “MR” in the fourth line from the bottom on page two and ending with the word “Yes” on the last line of the third page; and
(2)substitute for that part of the decision a decision that:
(a)Documents 1 to 341, 577, 579 (except in so far as it relates to the passage in Document 579 commencing with the word “MR” in the fourth line from the bottom on page two and ending with the word “Yes” on the last line of the third page) and 583 are not exempt under
s 36 of the Freedom of Information Act 1982; and
(3)affirm the decision that the passage in Document 579 commencing with the word “MR” in the fourth line from the bottom on page two and ending with the word “Yes” on the last line of the third page is exempt under s 36 of the Freedom of Information Act 1982;
4.in so far as the decision of the respondent dated 16 August 2004 decides that Document 577, 579 and 583 are exempt under s 37(1)(b) of the Freedom of Information Act 1982:
(1)set aside the decision in relation to Documents 577 and 583 and the whole of Document 579 other than:
(a)the passage on page two beginning with the word “A” in the fourteenth line and ending with the word “meeting.” on the seventeenth line; and
(b)the passage on page two beginning with the word “Several” in the twenty third line and ending with the word “that” in the thirtieth line;
(2)substitute for that part of the decision set aside a decision that Document 579 is not exempt; and
(3)affirm the decision in relation to:
(a)the passage on page two beginning with the word “A” in the fourteenth line and ending with the word “meeting.” on the seventeenth line; and
(b)the passage on page two beginning with the word “Several” in the twenty third line and ending with the word “that” in the thirtieth line;
5.in so far as the decision of the respondent dated 16 August 2004 decides that Documents 577, 579 and 583 are exempt under s 37(2)(b) of the Freedom of Information Act 1982:
(1)set aside the decision; and
(2)substitute a decision that Document 579 is not exempt under
s 37(2)(b) of the Freedom of Information Act 1982;
6. in so far as the decision of the respondent dated 16 August 2004 decides that Documents 1 to 341, 576, 577, 579 and 583 are exempt under 40(1)(d) of the Freedom of Information Act 1982:
(1)set aside the decision except in so far as it relates to the passage in Document 579 commencing with the word “MR” in the fourth line from the bottom on page two and ending with the word “Yes” on the last line of the third page; and
(2)substitute for that part of the decision set aside a decision that Documents 1 to 341, 576, 577, 579 and 583 are not exempt under s 40(1)(d) of the Freedom of Information Act 1982; and
(3)affirm the decision that the passage in Document 579 commencing with the word “MR” in the fourth line from the bottom on page two and ending with the word “Yes” on the last line of the third page is exempt under s 40(1)(d) of the Freedom of Information Act 1982;
7.in so far as the respondent’s decision dated 16 August 2004 decides that Documents 241 and 638 are exempt under s 45 of the Freedom of Information Act 1982:
(1)affirm the decision in relation to:
(a)Document 241 but only in relation to:
(i)a submission made by Taylor Woodings to ASIC regarding the Financial Reporting and Meeting Obligations of Companies in Administration;
(ii)the content of the fifth column of the table prepared by the respondent summarising the responses to questions in the Discussion Paper;
(iii)the last four lines on the second page of Document 241, beginning “· Again” and the first ten lines on the third page, ending with the word “website”;
(b)Document 577 but only in relation to the passage beginning with the word “You” and ending with the word “position”; and
(c)Document 638;
(2)in relation to that part of the decision that relates to documents in Document 241 other than the submission made by Taylor Woodings to ASIC regarding the Financial Reporting and Meeting Obligations of Companies in Administration:
(a)set that part of the decision aside; and
(b)substitute a decision that documents in Document 241 other than:
(i)the submission made by Taylor Woodings to ASIC regarding the Financial Reporting and Meeting Obligations of Companies in Administration;
(ii)the content of the fifth column of the table prepared by the respondent summarising the responses to questions in the Discussion Paper; and
(iii)the last four lines on the second page of Document 241, beginning “· Again” and the first ten lines on the third page, ending with the word “website”;
are not exempt under s 45 of the Freedom of Information Act 1982;
8.in so far as the respondent’s decision dated 16 August 2004 decides that Documents 1-3, 5-7, 17, 23-24, 36-41, 46-49, 52, 53-58, 61, 65-66, 68-69, 72-73, 85, 87, 90-92, 96, 98-100, 104-107, 109, 111-112, 117-121, 123-124, 126, 128-131, 132, 133, 134, 135, 136-139, 142-144, 148, 150, 153, 158-159, 165, 167-169, 176, 181, 186, 188, 190, 191, 193, 194, 195,196, 199, 204-205, 218-219, 230, 232, 235, 240, 242, 251-254, 269, 276, 283, 321, 340, 577, 579 and 638 are exempt under s 42 of the Freedom of Information Act 1982:
(1)set aside that part of the decision that relates to the following documents or parts of documents:
135 and 195 in relation to their covering emails;
6 in relation to their handwritten notations,
7 in relation to [6] on page 4;
36 in relation to the first sentence of [24];
39 in relation to the third sentence of [5];
41 in relation to the third sentence of [7] on page 3 and all but the third sentence of [3] on page 6;
58;
65;
66 in relation to the whole of the document other than the sentence on page 9 beginning with the word “Stephen”;
85 in relation to dot point 1 in the last sentence;
90 in relation to [17] on page 5 and [27] on page 8;
104 in relation to the whole of paragraph [7] on page 3 other than the sentence beginning with the word “Before” and the sentence immediately following that sentence;;
105 in relation to the whole of [5] on page 3 other than the first two sentences and [3] on page 6;
107 in relation to the whole of [3] on page 3 other than the first two sentences;
109 in relation to the whole of [2] on page 3 other than the first two sentences;
111 in relation to the whole of [5] on page 2 other than the first two sentences;
112 and 133 in relation to the whole of the document other than the final sentence beginning with the word “The” in [2] and [3] and [4];
117 in relation to the whole of [5] on page 2 other than the first two sentences;
124 in relation to all but the passage beginning immediately following the words “Dear Richard and Rob” on the first page and concluding with the words immediately preceding the words “I shall” on the second page;
128 in relation to the whole of [3] on page 2 other than the last sentence;
130 in relation to the whole document other than the content of the first two dot points and the third dot point on the first page of the attachment to the email;
136 in relation to all but the fifth and sixth lines of substantive text beginning with the word “It” and ending “”.”;
138 in relation to the first ten lines on page 6;
139 in relation to [5] on page 2 and [25] on page 6;
143 in relation to the whole of the document other than the passage beginning with the words “I have” and concluding with the word “week”;
144;
158;
159 in relation to the whole of the document other than the paragraph beginning with the word “Where” and containing one sentence;
165 in relation to the whole of the document other than the email from Mr Gadi Bloch to Mr Brendan Byrne seeking his legal advice, Mr Byrne’s email in response and Mr Bloch’s request for further legal advice;
167 in relation to the whole of the document other than the email from Mr Gadi Bloch to Mr Brendan Byrne seeking his legal advice;
168 in relation to the whole of the document other than the email from Mr Gadi Bloch to Mr Brendan Byrne seeking his legal advice, and Mr Byrne’s email in response;
176 and 199 in relation to the whole of [7] on page 3 other than the last three sentences beginning with the word “This” and [29(c)] on pages 5-6;
186 in relation to the whole of [3] on page 8 other than the first sentence starting with the word “It”;
188;
190 in relation to [47] on page 10;
204;
205;
218;
230;
235;
242 in relation to the whole of [7] on page 3 other than the last three sentences of that paragraph and [29(c)] on pages 5-6;
252 in relation to handwritten annotations;
253;
254;
269 in relation to the whole of [3] other than that part of the first sentence beginning with the word “The” and ending with the word “and”;
577;
579; and
638;
(2)substitute for that part of the decision that relates to the documents or parts of documents identified in 8(1) of this decision a decision that the documents or parts of documents identified in 8(1) are not exempt under s 42 of the Freedom of Information Act 1982; and
(3)otherwise affirm the decision in so far as it relates to exemptions claimed under s 42 of the Freedom of Information Act 1982; and
9.this decision does not come into operation until 30 September 2010.
S A FORGIE
Deputy President
REASONS FOR DECISION
In a request dated 12 October 2003, Mr Matthews sought access under the Freedom of Information Act 1982 (FOI Act) to a large number of documents in the possession of the Australian Securities and Investments Commission (ASIC). Those documents related, in essence, to the development of ASIC Instrument CO 02/968 (Class Order) and Policy Statement 174 (PS 174) and to ASIC’s investigation into Otter Gold Limited (Otter Gold), Allstate Explorations NL (Allstate) and Beaconsfield Gold NL (BCD) excluding documents which are publicly available or which have been circulated to creditors and shareholders. He subsequently narrowed the documents he sought to those relating to the Class Order and PS 174. I have set out the precise terms of Mr Matthews’ request and its long history in Annexure A to these reasons.[1]
[1] Annexure A and all other Annexures to these reasons are part of my reasons. The Annexures have equal status with the rest of the text. I have used them in an attempt to make my reasons easier to read in a matter that has a number of issues and requires me to consider some 3,500 folios.
Although Mr Matthews narrowed his request, the volume of documents is unwieldy. For the reasons I have given in Annexure B, I have rejected sampling as a possible solution to alleviating the task. Mr Matthews’ wish to withdraw part of his application has also given me concern. I have decided that he is not able to withdraw or discontinue part of his application. Instead, I think I should treat Mr Matthews’ statement of his position as amounting to consent to my affirming that part of ASIC’s decision that relates to all of the documents sought in his initial request and relating to Allstate and associated matters. My reasons are set out in Annexure C.
Various parties were joined during the course of the preliminary stages of the application. Among them was Mr Knapp, who made a number of submissions directed to his establishing that the process leading to ASIC’s development of PS 174 was an improper process. His submissions led me to consider the role of a party joined and what a review of a decision under the FOI Act can achieve. I set out that consideration in Annexure D to these reasons. Also set out in that Annexure is my understanding of the limitations on the use that the parties can make of evidence given in these proceedings. I have done this in response to questions that were raised by
Mr Matthews and Mr Knapp during the course of the hearing.
As Mr Matthews and Mr Knapp queried the adequacy of the searches, I have considered that issue and have decided that they were adequate. My reasons are set out in Annexure E.
Set out in Annexure F is the background to the documents relating to ASIC’s policy deliberations and the request in so far as it relates to Allstate. Reference is also made to ASIC’s wide range of powers and functions in relation to monitoring and promoting market integrity and consumer protection of the financial and payment systems in Australia. In Annexure G to these reasons I note that, under s 341 of the Corporations Act, ASIC may make an order in respect of a specified class of companies, registered schemes or disclosing entities, relieving certain persons or entities from certain requirements. It may act on its own initiative without application being made to it. The persons who may be relieved of specified obligations are directors, the companies, registered schemes or disclosing entities themselves and auditors of those companies, registered schemes or disclosing entities.[2] The requirements in respect of which ASIC may give relief are all or any of those specified in Parts 2M.2, 2M.3 and, except in relation to Division 4, Part 2M.4. The order may be expressed to be subject to conditions and may be either indefinite or limited to a specified period.[3] A list of staff involved in the deliberations to some extent and taken from Exhibit JDP-2 to Mr Price’s affidavit, Exhibit 3, appears at Annexure H to these reasons.
[2] Corporations Act, s 341(1)
[3] Corporations Act, s 341(2)
I have considered ASIC’s claims for exemption under ss 36, 37, 40, 41, 42 and 45. I have decided that, except in relation to one passage in Document 579 setting out information obtained by ASIC under compulsion, the claims made ss 36 and 40 are not supported in relation to any of the documents. In relation to the claims for exemption under s 42 on the basis of legal professional privilege, I have decided that exemption may be claimed where communications, otherwise protected by the privilege, involve external Counsel or ASIC officers within its Office of General Counsel (OGC) but may not be claimed in respect of legal advice obtained from, given by or exchanged among ASIC officers who also hold legal qualifications.
A claim was also made under s 43(c)(ii) in relation to a submission made on a confidential basis and forming part of Document 241 and under s 41 in relation to Document 638, which is the submission forming part of Document 241. I have not considered either claim for I am satisfied for reasons I give later in these reasons that both documents are exempt under s 45. A claim for exemption was also made under
s 37(1)(b) and 37(2)(b) in relation to Documents 577, 579 and 583. I have decided that none of the three documents is exempt under s 37(2)(b) but that parts of Document 579 are exempt under s 37(1)(b) in so far as it would disclose the identity or existence of confidential sources of information.
I have set out the exemption provisions in the body of these reasons. My decisions relating to the claims for those exemptions in relation to particular documents are set out in the Annexures as follows. References to the paragraphs in which the section and general principles of law relating to it are set out are shown in brackets. Further principles of law are also considered in the Annexures as they relate to particular documents:
| Annexure | Section | Description | Discussion of law |
| Annexure I [291]-[312] | 36 | Internal working documents | [12]-[55] |
| Annexure J [313]-[320] | 37(1)(b) and 37(2)(b) | Enforcement of the law | [56]-[68] |
| Annexure K [321]-[325] | 40 | Substantial adverse effect on proper and efficient conduct of operations of agency | [69]-[82] |
| Annexure L1 [326]-[327] | 42 | Legal professional privilege (Description of documents) | |
| Annexure L2 [328]-[462] | 42 (including deletion of exempt matter under s 22 at [351]-[364] | Legal professional privilege (Consideration of exemption) | [83]-[120] |
| Annexure M [463]-[477] | 45 | Breach of confidence | [121]-[129] |
My decision is set out in Annexure N at [478]. It is framed in terms of whether or not the documents are exempt under the FOI Act rather than whether or not Mr Matthews should be granted access to them. I have done that deliberately for the legally enforceable right to obtain access is subject to all the provisions of the FOI Act and not simply those in Part IV relating to exemptions. Among those provisions is s 29 which relates to charges. That section must be read with the Freedom of Information (Fees and Charges) Regulations made under s 94 of the FOI Act. Liability to pay charges is determined under those Regulations. If Mr Matthews is liable to pay a charge, in most circumstances he must pay that charge before ASIC gives him access to the documents.[4] He may contend that any charges should be reduced and he has rights to apply to ASIC and ultimately the Tribunal regarding the imposition of charges and their amount.[5] These are not matters that I have power to review in this matter but they remain matters to be resolved between Mr Matthews and ASIC. Under s 43(5B) of the Administrative Appeals Tribunal Act 1975 (AAT Act), I have also deferred the date on which the decision is to come into effect until
30 September 2010. This will allow ASIC time within which to lodge any appeal it may wish to make to the Federal Court under s 44 of the AAT Act.[4] Freedom of Information (Fees and Charges) Regulations, r 11(1)
[5] FOI Act, s 29(4) and ss 54(1)(d) and 55
CLAIMS FOR EXEMPTION
In interpreting the various exemption provisions, I am mindful of the words of Bowen CJ and Fisher J in The News Corporation Ltd v National Companies and Securities Commission[6] who said, after considering authority that provisions of the American Freedom of Information Act 5 USC 552 concerning access should be generously construed while exemptions are to be narrowly construed:
“ 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.”[7]
Section 36: Internal working documents
[6] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83
[7] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83 at 66; 279; 85
A.The section
Section 36(1) of the FOI Act provides:
“Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a)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 function of an agency or Minister or of the Government of the Commonwealth; and
(b)would be contrary to public interest.”
The section is qualified in two ways. First, it does not apply to a document by reason only of purely factual material contained in the document:
s 36(5). Second, it does not apply to matter used for the purpose of making decisions or recommendations referred to in s 9(1)(a): s 36(2). Where a decision is made to deny access to a document on the basis that the exemption in s 36 applies, the reasons given under s 26 must state the ground of public interest on which the decision is based.[8][8] FOI Act, s 36(7)
B.The interpretation of s 36
B.1Section 36(1)(a): the first criterion
Cases that have considered s 36(1)(a) have included Re Howard and Treasurer of the Commonwealth of Australia,[9] Re Murtagh and Commissioner of Taxation,[10] Re Waterford and Department of the Treasury (No.2),[11] Re James and Others and Australian National University[12] and Kavvadias v Commonwealth Ombudsman (No 2).[13] In so far as those cases considered the word “deliberation”, their conclusion may be summarised in the words of Beaumont J in Harris
v Australian Broadcasting Corporation and others[14] when he said that:“... ‘deliberation’ suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.”[15]
Sheppard J’s observation in Kavvadias v Commonwealth Ombudsman is also pertinent and that is to the effect that the expression is not to be confined to policy making.[16]
[9] (1985) 7 ALD 626, Davies J
[10] (1984) 54 ALR 313; 6 ALD 112, Davies J, President, Sir Ernest Coates and RA Sinclair, Members
[11] (1984) 5 ALD 588, Deputy President Hall and I Prowse and CA Hughes, Members
[12] (1984) 6 ALD 687, Deputy President Hall
[13] (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198, Sheppard J
[14] (1983) 50 ALR 551; 5 ALD 545
[15] (1983) 50 ALR 551; 5 ALD 545 at 560; 553 (see also Re Murtagh and Commissioner of Taxation and Re Howard and Treasurer of the Commonwealth of Australia)
[16] (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198 at 76-77; 298-299; 210-211
Matter in the nature of a deliberation is not the only matter within the scope of s 36(1)(a). Other matters within its scope are matters in the nature of “opinion, advice or recommendation … [or] consultation”. In the case of Smith and Aboriginal and Torres Strait Islander Commission,[17] I set out the ordinary meanings of the other words used in s 36(1)(a) i.e. “opinion, advice or recommendation … [and] consultation:”
“Taking first the word ‘opinion’, it connotes ‘… a view held about a particular subject or point; a judgement formed; a belief …’ (The New Shorter Oxford English Dictionary, 1993) or a ‘1. judgment or belief resting on grounds insufficient to produce certainty. 2. a personal view, attitude, or estimation: public opinion 3. the expression of a personal view, estimation, or judgment: to give an opinion on tariffs. 4. a formal or professional judgment expressed, especially in law: counsel’s opinion. …’ (The Macquarie Dictionary, 3rd edition, 1997). The word ‘advice’ means ‘… The way in which a matter is looked at; opinion, judgement … consideration, consultation, reckoning … an opinion given or offered as to action; counsel … The result of consultation; determination, plan …’ (The New Shorter Oxford English Dictionary, 1993 and see also The Macquarie Dictionary, 3rd edition, 1997) . The meanings of ‘recommendation’ include ‘… The action or an act of recommending a person or thing; a recommended course of action etc.; a proposal …’ (The New Shorter Oxford English Dictionary, 1993 and see also The Macquarie Dictionary, 3rd edition, 1997). To a certain extent, the meanings of the words ‘opinion’, ‘advice’ or ‘recommendation’ overlap. Whether they overlap or not, all are expressing the notion of consideration followed by the formation of a view either about a certain subject or about a course of action and the transmission of that view.
The ordinary meanings of ‘consultation’ include ‘… A meeting in which parties consult together, or one person consults another, … ‘ (The New Shorter Oxford English Dictionary, 1993) and ‘… the act of consulting; conference. … a meeting for deliberation … an application for advice to one engaged in a profession …’ (The Macquarie Dictionary, 3rd edition, 1997). Again, there is a notion of consideration inherent in the meaning of ‘consultation’. That consideration may or may not lead to the formation of an opinion, advice or recommendation.
Similarly, the word ‘deliberation’ encompasses the notion of consideration. That consideration may involve consultation or discussion amongst more than one persons. Equally, a person who considers a matter on his or her own can be said to have deliberated upon it. Whether or not the deliberation leads in either case to the formation of an opinion, advice or recommendation is another matter.”[18]
[17] [2000] AATA 512
[18] [2000] AATA 512 at [54]-[56]
On its face, s 36(1)(a) appears to be broadly drafted to gather a broad range of matters within its scope and, with one exception, there is no reason in the context either of the remainder of the section or of the FOI Act to limit the ordinary meanings given to the words “opinion, advice or recommendation … consultation or deliberation”. In Booker and Department of Social Security,[19] I gave further consideration to the word “consultation” and, after reviewing various authorities, added that “…in order for there to be a consultation, there must be something of a two way exchange between at least two parties. …”.[20]
[19] AAT 6189, 13 September, 1990
[20] AAT 6189, 13 September, 1990 at [25]
That brings me to the qualification expressly stated in s 36(1)(a)
to limit the meaning that must be given to the words “opinion, advice or recommendation” and also to the words “consultation or deliberation”. That qualification is that it must have been “obtained, prepared or recorded” (if an opinion, advice or recommendation) or “ha[ve] taken place” (if a consultation or deliberation) “in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency …”.
The meaning of the expression “taken place” seems clear enough but what of the words “obtained, prepared or recorded”? The word “obtain” was considered by Newman J in Kelly v JRA Ltd[21] in the context of s 234(1)(b) of the Customs Act 1901. That section provided, in part, that “A person shall not …obtain any … refund … which is not payable”. His Honour said:
“… The word ‘obtain’ is defined by the Shorter Oxford English Dictionary as being ‘to procure or gain, as a result of purpose and effort … to possess’.
The Macquarie Dictionary showing consistency with its English counterpart, defines ‘obtain’ as ‘to come into possession of; get or acquire; procure as by effort or request.’ In my view the action required of a person to come into possession of a refund of duty from the Collector of Customs requires, on that person’s part, a conscious effort to receive a refund evidenced by the fact that to get such refund, the person seeking it must actively do something to get it.”[22][21] (1990) 92 ALR 651
[22] (1990) 92 ALR 651 at 657-658
It seems to me that a similar meaning should be given to the word “obtain” as it is used in s 36(1)(a). The opinion, advice or recommendation must have been acquired or procured in the course of, or for the purposes of, its deliberative processes involved in its functions. It is not enough that the opinion, advice or recommendation was received by an agency when it was not sought by that agency either explicitly or implicitly.
The remaining words to consider are “prepared” and “recorded”. Their meanings are clear and, given their context, it is equally clear that the opinion, advice or recommendation must have been “prepared or recorded” in, or for the purposes of collective discussions i.e. the deliberative processes. At one time, it would generally have been expected that the opinion, advice or recommendation would be prepared or recorded within the agency. It could always be envisaged, though, and it has now become more common for an agency to ask a person outside it to prepare or record the opinion, advice or recommendation. Provided it is prepared or recorded with the imprimatur of the agency and that the other criteria in s 36(1)(a) have been met, the opinion, advice or recommendation would come within the paragraph. It is not enough, though, that it has been prepared or recorded and then proffered to the agency. To come within the paragraph, it must have been prepared or recorded in the course of, or for the purposes of, the agency’s deliberative processes and so the opinion, advice or recommendation must have been prepared or recorded as a result of the agency’s seeking it rather than its simply being the recipient of it.
Perhaps their meanings are self explicit but I should also spend a moment on the meaning of the words “in the course of” and “for the purposes of” the deliberative processes “involved in” the functions of an agency, Minister or Government of the Commonwealth as they appear in s 36(1)(a). In order to claim an exemption under s 36, it is not enough that the agency or Minister has a document containing an opinion, advice or recommendation or consultation or deliberation referring to matters for which the agency or Minister has responsibility. It must be matter of that sort that has been obtained, prepared or recorded or, in the case of a consultation, has taken place in the course of, or for the purposes of the deliberative processes involved in their functions.
In the context of s 6 of the Contracts Review Act 1980 (NSW), Young J considered the meaning of the expression “for the purpose of a trade, business or profession’. His Honour did so in Ellison v Vukicevic[23] when he adopted what Lee J had said in Collins v Parker:[24]
“ The expression ‘for the purpose of’ has the meaning that the contract under consideration is entered into as an ordinary incident of the carrying on of a particular trade, business or profession then being carried on or proposed to be carried on.”[25]
It seems to me that this interpretation is equally apt in s 36(1)(a) of the FOI Act. If matter has been obtained “for the purposes of” deliberative processes, it must have been obtained as an ordinary incident of them.
[23] (1986) 7 NSWLR 104 at 111
[24] Unreported, SC (NSW), 11 May 1984 at 18
[25] Both cases were cited with approval by Toohey and Gaudron JJ in Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388; 120 ALR 440 at 400; 446
The expression “in the course of” raises similar issues of connectivity between the particular matter and the deliberative processes. Those issues are of the same sort as those that arise when considering whether an injury has occurred “in the course of employment”. Deane J considered them in Commonwealth of Australia v Lyon[26] when said:
“ Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something which is a concomitant of, or reasonably incidental to, his employment to do that work … The course of employment is a temporal concept and it is unnecessary that there be any causal connection between the work which the employee is employed to do and the injury which he sustains … The scope of what is within it depends upon ‘the sufficiency of the connection between the employment and the thing done by the employee’ which ‘cannot but remain a matter of degree, in which time, place and circumstances, as well as practice, must be considered together with the conditions of employment’ (per Dixon J, Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 at 29, and see, generally, per Stephen J Bill Williams Pty Ltd v Williams [1972-73] ALR 303; 126 CLR at 158-9.”[27]
[26] (1979) 24 ALR 300
[27] (1979) 24 ALR 300 at 303-304
There are, of course, later authorities concerned with what is meant by an injury “in the course of employment”. One of these is Hatzimanolis v ANI Corporation Ltd[28] in which Mason CJ, Deane, Dawson, Toohey and McHugh JJ said:
“… In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen …[[29]]’.”[30]
That, too, is a principle that is equally applicable in considering whether a matter of the sort described in s 36(1)(a) has been obtained, prepared or recorded or a consultation or deliberation has taken place in the course of the deliberative processes involved in the functions of an agency, a Minister or the Government of the Commonwealth. Regard must be had to the general nature, terms and circumstances of those deliberative functions.
[28] (1992) 173 CLR 473; 106 ALR 611
[29] Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 at 537
[30] (1992) 173 CLR 473; 106 ALR 611 at 484; 618
It follows that there must be a connection of the sort described between the opinion, advice or recommendation or of the consultation or deliberation and the deliberative processes of an agency. That, however, is not the only connection that must be made for the purposes of s 36(1)(a). There must be a connection of the sort described by the expression “involved in” between the deliberative processes and the functions of an agency, a Minister or the Government of the Commonwealth. What is the nature of that connection? The word “involve” means in this context:
“… to require as a necessary part …”[31]
Therefore, the deliberative processes must be those that are required as a necessary part of the functions of the agency, Minister or the Government of the Commonwealth.
[31] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
The expression “deliberative processes” has been considered in
Re James and Others and Australian National Universityin which Deputy President Hall repeated the view he had expressed as a member of the Tribunal in Re Waterford and Department of the Treasury (No.2) that the “deliberative processes” of an agency are its “thinking processes”.[32] Sheppard J stated in Kavvadias v Commonwealth Ombudsman that the expression is not to be confined to policy making.[33] Several authorities were reviewed by Davies J in Re Howard and Treasurer of the Commonwealth of Australia.[34] He referred to Re Murtagh and Commissioner of Taxation, with which he agreed and in which the Tribunal had said:
“The term ‘deliberative processes’ would seem to have a wide ambit.
The term was considered by Beaumont J in Harris v Australian Broadcasting Corporation (1983) 50 ALR 551. At 560, his Honour said that: ‘... “deliberation” suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.’”[35][32] (1984) 6 ALD 687 at 693
[33] (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198 at 76-77; 298-299; 210-211
[34] (1985) 7 ALD 626
[35] (1984) 6 ALD 112; 84 ALR 313 at 118-119; 319 and see also Re Howard (1985) 7 ALD 626 at 630
Davies J referred also to the Tribunal decision in Re Waterford and Department of the Treasury (No.2) where it said:
“As a matter of ordinary English the expression ‘deliberative processes’ appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. ‘Deliberation’ means ‘The action of deliberating: careful consideration with a view to decision’: see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one’s course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s36(1)(a) come into play.”[36]
[36] (1984) 5 ALD 588 at 606 and see also Re Howard (1985) 7 ALD 626 at 630
[37] (1996) 43 ALD 139
This passage was considered by Deputy President McDonald in
Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs.[37]He then said:
“ In reaching a decision to characterise a document as being part of a deliberative process the tribunal may seek guidance, but not be bound, by the wording used in the document itself. The determination should be based on a fair reading of the whole of the document and not a disjunctive reading of selected passages. Additionally, the characterisation should be determined not only by having regard to the wording used in the document, but also by reference to the surrounding circumstances and the matters deposed to in any evidence supporting the maintenance of the exemption. …”[38]
[38] (1996) 43 ALD 139 at 148
While I would not disagree that the whole of any document should be read before coming to a decision, I would disagree with any suggestion, if there be any, that the whole of the document will always be relevant. The occasions on which the whole of the document will not be relevant may be few but the fact that they may occur should be borne in mind. They may, for example, appear in a document that cannot itself be described as a document whose disclosure would reveal matter that would otherwise come within the scope of s 36(1)(a). That this may be so is underlined by the provisions of s 22(1) of the FOI Act in so far as it contemplates the possibility that exempt matter may be deleted from a document so that it is no longer an exempt document. Subject to certain conditions, s 22 permits access to be given to a document that has been redacted in that way.
B.2 The qualification in s 36(5): purely factual material
The expression “purely factual material” was considered by Deputy President Todd in Re Waterford and Treasurer of the Commonwealth (No 1).[39]
He concluded “… that to be described as ‘factual’ the material must be ‘factual’ in fairly unambiguous terms. …”[40] As for the word “purely”, it “… is clearly not used to denote something about the character of what is comprised in ‘factual material’. It has the sense of ‘simply’ or ‘merely’ …”.[41] Although it may be more a matter of semantics than of substance, I would approach the matter from a slightly different view of the role of the word “purely”. In my view, it is intended to emphasise that the material must be “… wholly …[or] entirely …”[42] comprised of factual material and cannot incorporate any material that is not factual material. As Deputy President Todd would say: it comprises merely or simply factual material. It does not contain material that can be described as opinion, advice or recommendation or even conjecture.[43][39] (1984) 6 ALN N347
[40] (1984) 6 ALN N347 at N349
[41] (1984) 6 ALN N347 at N349
[42] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[43] Where purely factual material is mixed with opinion, advice or recommendation that is exempt under the FOI Act, consideration must be given to whether that exempt matter can be deleted from the document in accordance with s 22.
The distinction was drawn by the Full Court of the Federal Court in Harris v Australian Broadcasting Commission:[44]
“ Equally, some conclusions may be classed as purely factual material. We hesitate to import notions from the law of evidence into this field. However, it may be useful to refer to the distinction, with which lawyers are familiar, between primary facts and ultimate facts. In our view a statement of ultimate fact may be a statement of purely factual material, notwithstanding it involves a conclusion based on primary facts. Many common statements of fact may, if analysed, be found to be based on primary facts. For example, the statements X has a cold or Y resides in Sydney are both statements based on primary facts, which are unstated. On the other hand, a conclusion which involves opinion, advice or recommendation for the purposes of the deliberative process may well prevent material from being purely factual and render it exempt.”[45]
B.3The qualification in s 36: matter used for the purpose of making decisions or recommendations referred to in s 9(1)(a)
[44] (1983) 51 ALR 581, Bowen CJ, St John and Fisher JJ
[45] (1983) 51 ALR 581 at 586
Section 9(1)(a) refers to matter used for the purpose of making decisions or recommendations referred to in s 9(1)(a). Those are “manuals or other documents containing interpretations, rules, guidelines, practices or precedents …” and must be made available for inspection and purchase in accordance with s 9. Although it may be that Document 312A contains the final draft of the content of what was to become PS 174, it is not the final copy that was available for use by ASIC officers in making decisions or recommendations under the Corporations Act. The document does not bear a PS number, its issue date is blank and the list of related instruments is incomplete. Therefore, the qualification in s 36(1)(a) is irrelevant.
B.4 Section 36(1)(b): “contrary to the public interest”
If a document comes within the scope of s 36(1)(a) and is not excluded by one or other of the exceptions in ss 36(5) or (6), it will not be exempt unless its disclosure under the FOI Act would be contrary to the public interest. What is meant by “contrary to the public interest” in s 36(1)(b) was considered by the High Court in McKinnon v Secretary, Department of the Treasury (McKinnon).[46] Before I come to that, I have found it helpful to look at earlier authorities considering the meaning of “public interest” in other contexts.
[46] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
In the different context of defamation law, Lord Denning said in London Artists Ltd v Littler:[47]
“… There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. A good example is South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133.
A colliery company owned most of the cottages in the village. It was held that the sanitary conditions of those cottages — or rather their insanitary condition — was a matter of public interest. Lord Esher MR, said at p 140, that it was “a matter of public interest that the conduct of the employers should be criticised”. There the public were legitimately concerned. Here the public are legitimately interested. Many people are interested in what happens in the theatre. The stars welcome publicity. They want to be put at the top of the bill. Producers wish it too. They like the house to be full. The comings and goings of performers are noticed everywhere. When three top stars and a satellite all give notice to leave at the same time — thus putting a successful play in peril — it is to my mind a matter of public interest in which everyone, press and all, are entitled to comment freely.”[48][47] [1969] 2 QB 375
[48] [1969] 2 QB 375 at 391
In McKinnon v Secretary, Department of Treasury,[49] Tamberlin J said:
[49] [2005] FCAFC 142; (2005) 145 FCR 70 at 75-76, Tamberlin and Jacobson JJ, Conti J dissenting
“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 …
11.-12.…
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 Council 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.
What is clear from these cases is that the public interest is not a static concept. It is, instead, a concept that takes its shape and substance from the circumstances which are said to give rise to it. Those circumstances will be factual and statutory. In Botany City Council v Minister for Transport and Regional Development,[50] for example, the factual circumstances were the airport, the noise it generated and the effect of noise on people. In London Artists Ltd v Littler, the factual circumstances were the sanitary conditions and their provision by an employer.
[50] (1996) 137 ALR 281
This seems to accord with the approach taken in a decision of Davies J as President of the Tribunal in Re Howard and Treasurer of Commonwealth of Australia.[51] He was concerned with a conclusive certificate and so with whether there existed reasonable grounds for a claim that disclosure of certain documents would be contrary to the public interest. Mr Howard had requested documents provided to the then Government by an Australian Council of Trade Unions’ (ACTU) Task Force during the formulation of the 1984/85 Budget. When in opposition, the Government had forged an Accord with the ACTU regarding economic policy. In particular, the Government had agreed to consult with the ACTU regarding income and prices policies including taxation. Access was refused to a minute to the Treasurer and a telex to the ACTU. Both documents advised the Treasurer on the implications and estimated cost of certain taxation options. Davies J referred to previous authorities from which he gleaned that the whole of the circumstances needed to be examined. Those circumstances included any public benefit perceived in their disclosure.[52] As general propositions, he drew five propositions to which I referred in Re McKinnon and Secretary, Department of Prime Minister and Cabinet.[53]
[51] (1985) 7 ALD 626
[52] (1985) 7 ALD 626 at 634 Given the position expressly taken in McKinnon that the exercise does not permit the Tribunal to engage in a balancing exercise, it would seem that this aspect of Davies J’s reasons for decision relating to any benefit from disclosure might have to be treated cautiously.
[53] [2007] AATA 1969 at [108]
Mr Howard had framed his submissions around three points. First, the Accord was a political document. Second, the ACTU had not produced any evidence as to whether maintaining the confidentiality of their discussions was important to them. Third, there is a clear public interest in not only the reality, but the appearance, of equal treatment of claimant groups and their representatives in the Australian community. The Government of the day had appeared, Mr Howard submitted, to have treated the ACTU in a special manner. Davies J dealt with these submissions and analysed the evidence in a way consistent with the approach that appears to underpin the judgments, to which I have referred, and to that of the High Court in McKinnon to which I will refer shortly:
“ In the present case, I think there were and are reasonable grounds for concluding that disclosure of the documents would be contrary to the public interest. In the preparation of the Budget, the Treasurer and officers of his Department would have given consideration to a wide range of options. Some options would have been noted and not further considered, others may have been given scant attention. Some options may have been given serious consideration but not adopted for one reason or another. In the course of the development of the Budget, new options may have come to light. In the end, the Budget would have been formulated. The authorities to which I have referred recognize a public interest in protecting from disclosure such a process of deliberation. Protection of the deliberative process encourages ‘creative debate and candid consideration of alternatives’, to use the words of Wilkey J (Jordan v Department of Justice, supra, [591F (2d) 753 (1978)] at 772). It prevents premature disclosure of possible options and confusion arising between options considered and options adopted. And lastly it protects the integrity of the decision-making process by enabling the government to be judged by what it has decided to do rather than by material it has taken into account. These elements of the public interest are as significant in this country as they are in the United States or in the United Kingdom.”[54]
[54] (1985) 7 ALD 626 at 636
This brings me to the approach taken by the High Court in McKinnon. Although considering a conclusive certificate that had been issued in relation to a claim that disclosure of certain documents would be contrary to the public interest within the meaning of s 36(1)(b), some mention was made of the general notions of public interest in their Honour’s judgments. There were three different approaches in the three judgments in McKinnon.
Gleeson CJ and Kirby J examined the object of the FOI Act, the structure of s 36 and its place in the legislation. They continued:
“ A conclusion that disclosure of an internal working document would be contrary to the public interest may or may not turn upon contestable facts: either primary facts, or inferences to be drawn from those facts. It may or may not turn upon contestable matters of opinion. Inevitably, it will involve a judgment as to where public interest lies. Such judgment, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object described above, which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests (s 3(1)(b)).”[55]
[55] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 428; 189; 518 [5]
Their Honours’ reference to the fact that “judgment” is required in determining where the public interest lies and to that judgment’s being made in a particular context found expression in a later passage in their judgment:
“… This is a concept that assumes prominence in a different context, in which courts are required to deal with claims of public interest immunity advanced in opposition to the production of documents, for example under subpoena, in civil or criminal litigation. There, it is the public interest in the administration of justice, and considerations of fairness to litigants, that may need to be weighed against aspects of the public interest put at risk by disclosure of documents …. The image of the scales of justice is pervasive in legal thinking, and it is natural to talk of taking account of competing considerations in those terms. Under the FOI Act, however, the matter of disclosure or non-disclosure is not approached on the basis that there are empty scales in equilibrium, waiting for arguments to be put on one side or the other. There is a ‘general right of access to information … limited only by exceptions and exemptions necessary for the protection of essential public interests [and other matters not presently material]’ (s 3(1)(b)). That is the context in which a minister makes a decision under s 36(3), and in which such a decision is reviewed under s 58(5). References to ‘balancing’ create a danger of losing sight of that context. …”[56]
[56] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 433; 193; 522 [19]
Gleeson CJ and Kirby J were in the minority on the final result but their views are not incompatible with those of Hayne J, who was a member of the majority. Hayne J made the following observations on the meaning of “public interest”:
“ It may readily be accepted that most questions about what is in ‘the public interest’ will require a consideration of a number of competing arguments about, or features or ‘facets’ of, the public interest. As was pointed out in O’Sullivan v Farrer …[[57]]:
‘[T]he 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” …[[58]].
That is why a question about ‘the public interest’ will seldom be properly seen as having only one dimension.”[59]
[57] (1989) 168 CLR 210 at 216
[58] Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J
[59] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 443-444; 202; 531[55]
In contrast to these expressions of the public interest, Callinan and Heydon JJ made the following observations regarding the public interest:
“ Nor are we by any means certain that it is apt to describe the public interest as multifaceted. Neither the fact that different people will see it through different prisms, nor the fact that an all-encompassing definition of it for all occasions is not possible, means that the public interest is multifaceted. … Judges have usually not found it necessary to direct juries at length as to the meaning of the expression, except to warn them that it is not enough that the matter might be of some personal or prurient interest, or merely something about which they may be curious.”[60]
[60] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 468; 221-222; 550-551 [130]
The conclusion to be drawn is that the public interest is not multifaceted but a concept which shapes itself to the factual circumstances under consideration and any statutory provisions applicable to those circumstances for its very dimensions and boundaries are drawn by those circumstances and provisions. That is illustrated by the judgment of Gleeson CJ and Kirby J who note that the FOI Act itself begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests.
In trying to ascertain the public interest, a distinction must be drawn between the public interest and a matter of interest to the public. In Director of Public Prosecutions v Smith,[61] the Victorian Supreme Court considered a decision made by the former Administrative Appeals Tribunal of Victoria (AATV) to release of documents relating to a decision by the Victorian Director of Public Prosecutions not to prosecute a solicitor on the basis that their release was in the public interest. It had been alleged that the solicitor had been a party to a fraud upon a businessman who was a client of the practice in which the solicitor was then employed. Section 50(4)
of theFreedom of Information Act 1992 (Vic) (FOIVIC) empowered the AATV to override most exemptions[62] where it was of the opinion that the public interest required that access to the document should be granted under that Act. The documents to which the Tribunal granted access contained detailed references to business transactions of the former client, who had begun legal proceedings against the solicitor’s firm, complained to the Victorian Law Institute and reported the matter to the police.[61] [1991] 1 VR 63; (1991) 100 FLR 6
[62] Excluded from the power given by s 50(4) of FOIVIC were the exemptions relating to Cabinet documents (s 28), documents affecting national security (s 29A) Bureau of Criminal Investigation documents (s 31(3)) and documents relating to personal privacy (s 33).
The beginning of the following passage from the judgment of the Full Court of the Supreme Court of Victoria appears in the extract of the judgment of Tamberlin J in McKinnon v Secretary, Department of Treasury. I have set that passage out above.[63] Omitting citations, I will repeat the beginning in order to set the context in which the Full Court drew a distinction between matters of public interest and matters of interest to the public:
“… 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: ... There are … several and different features and facets of interest which form the public interest. On the other hand, in the daily affairs of the community events occur which attract public attention. Such events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest. The interest created by Mr Legge bringing his business transactions into the public arena and by the respondent’s public statements concerning the prosecution of McArdle were no doubt of the nature of the interest to some members of the public, but those matters were not ‘the public interest’ to which s 50(4) is directed.”[64]
[63] See [195] above
[64] [1991] 1 VR 63 at 75
There were, however, two other matters that the AATV, constituted by Judge Higgins, had considered to be relevant in considering public interest. They were the interest of the public that the prosecution of Mr McArdle had been effected impartially and according to law and the public interest inherent in the doctrine of legal professional privilege. The Full Court upheld the AATV’s decision to release the documents saying:
“… His Honour commenced by accepting without elaboration the high order of importance of the privilege against which he compared the public interest factor of the appearance of justice having been done in exceptional circumstances which had been created to surround the McArdle case. Then he recounted matters and considerations pertinent to the public interest in the appearance of justice having been done. His opinion that the public interest required the disclosure to the public of the exempt documents was reached after comparing the benefit to the criminal justice system by disclosure against the harm to the doctrine of legal professional privilege. To the lawyer steeped in the tradition of the common law, the result may seem unacceptable. Nevertheless the legislature, by not excluding from the operation of s. 50(4) a document referred to in s. 32 indicated the intention that in appropriate circumstances other factors of the public interest might be attributed greater value than the factor of legal professional privilege. Be that as it may, the reasons for his decision were given by the learned judge in conformity with the requirement of s. 49(1) to (3) of the Administrative Appeals Tribunal Act.”[65]
[65] [1991] 1 VR 63 at 77
This approach is consistent with that of Hayne J in McKinnon to the effect that what is in the public interest and so, in a case such as this, what is contrary to the public interest, requires a consideration of a number of matters. That is not to say that the public interest is multi faceted. The matters that are taken into account are confined only in so far as the subject matter and the scope and purpose of the relevant enactment require.
Among those matters must be the right of access to information conferred by the FOI Act. The rights to access to information in documentary form under Parts II and III are not limited to “citizens” if, by that word, I am meant to understand “Australian citizens”. The right given by s 11, as opposed to the object stated in s 3(1), is expressed more broadly in terms of every person’s having a legally enforceable right and it has been interpreted more widely without reference to Australian residence or citizenship.[66]
[66] Re Lordsdale Finance Limited and Department of the Treasury [1985] AATA 174 per Deputy President Todd. Australian citizenship was originally required of an applicant for amendment or annotation of personal records but that requirement was removed when s 48 was repealed and replaced by the Freedom of Information Amendment Act 1991 No. 137 of 1991: s 33.
A purpose of the FOI Act is to inform persons about the processes of government but it is not the only purpose. It could be said that it does this under Part II and that Part II is the implementation of the object expressed in s 3(1)(a):
“The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Commonwealth by:
(a)making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; …
(b)-(c)…”
Consistently with this object, s 8 requires agencies to publish certain information about their functions, the categories of documents they maintain and the opportunities that exist for persons or bodies outside the Commonwealth administration to participate in the formulation of policy. Unlike requests for access under Part III, which are limited to requests for information in documentary form, s 8 requires agencies to create documents setting out the relevant information if they do not already exist. Section 9 requires them to make available for inspection and purchase documents that they use in their decision-making processes. All of this informs about the processes of government.
The rights given under Part III are not necessarily so limited. When read with the exemptions in Part IV, they appear to be the implementation of the object stated in s 3(1)(b) to create:
“… a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities.”
The right that is given by s 11 is:
“Subject to this Act, … a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.”
As s 11(2) goes on to say, subject to the FOI Act itself, a person’s right of access is not affected by any reasons given by the person seeking access or any belief held by an agency or Minister as to the person’s reasons for seeking access.
It is clear from the way in which s 3(1)(b) expresses its object to create a general right of access that the government holds a wide range of information in documentary form. No doubt all of that information is in some way relevant to a function, a power or a duty of an agency but not all of it may in itself disclose the processes of government. A wish to know about the processes of government may or may not be at the heart of a request for access.[67] Given the object of the FOI Act and the nature of the right of access it confers, it seems to me that the public interest is in maintaining that right of access limited as it is only by exemptions necessary to protect private and business affairs of persons in respect of whom information is collected by departments and public authorities and by what is necessary for the protection of essential public interests. Those essential public interests are circumscribed by the exemption provisions of Part IV and, to some extent, by the workload considerations set out in s 24 of Part III that justify refusal of a request. This public interest could also be described in the words adopted by Tamberlin J in McKinnon v Secretary, Department of Treasury as “transparency in public administration”[68] if that expression were understood to encompass transparency of information held in documentary form as well as transparency of processes. That would seem a more appropriate expression of this consideration in determining what is contrary to the public interest under s 36(1)(b) than that of citizens’ being informed of the processes of government.
[67] Take, for example, commercial information submitted to government for the purposes of obtaining approval of a pharmaceutical substance: Re Smith, Kline and French Laboratories (Australia) Ltd and Others v Secretary, Department of Community Services [1991] FCA 150 per Sheppard, Wilcox and Pincus JJ
[68] (2005) 145 FCR 70; 220 ALR 587 at 76; 591
Section 36(1)(b) does not purport to limit the matters taken into account by reference only to the essential public interests that it has protected in Part IV. That is clear from the paragraph itself and underlined by s 32(a) which provides that:
“A provision of this Part by virtue of which documents referred to in the provision are exempt documents:
(a)shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents;…
(b)…”[69]
[69] Section 36 cannot, of course, be used to justify a decision to give access to a document which is exempt under another provision of Part IV even if its disclosure would not be contrary to the public interest within the meaning of s 36(1)(b).
As submitted on behalf of ASIC, there is a public interest in the proper working of government but what does that mean? I have turned to the judgment of Callinan and Heydon JJ for assistance. Their Honours went on to consider the various grounds of public interest that had been claimed by the respondent in that case and said:
“ … The reference to ‘ongoing sensitivity’ in the first is not entirely clear. We would be inclined ourselves to think that the fact that documents have continuing sensitivity, are controversial and affect a minister’s portfolio would not alone provide a reasonable ground for continuing confidentiality. The use of the word ‘ongoing’ strongly suggests currency, and the use of the word ‘controversial’ might well at least imply public interest.
The second ground, which speaks of jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed, and it seems to us that this is a matter upon which a minister’s opinion and experience are likely to be as well informed and valuable as those of anyone else, including senior officials.
The third ground raises an issue of tentativeness, that is to say, that the documents were concerned with matters that were not settled and recommendations that were not adopted. This too, on its face, is a cogent ground. It is difficult to see how it would not be reasonable for a minister to take the view that the release of material of that kind would not make a valuable contribution to public debate.
The fourth ground has so much in common with the third that nothing further need be said about it.[[70]]
The fifth ground is far less persuasive. It claims that the difficulty of putting financial data into context provides reason for the non-disclosure of otherwise relevant documents. It is, we think, unrealistic for any minister to believe that he or she can control, or dictate the context in which matters of public interest are debated. All that a minister can do is seek to explain the data and to provide as accurate a context for it as possible.
The sixth ground takes the point that such documents as are prepared for possible responses to questions in Parliament should remain confidential because their exposure would threaten the Westminster system of government, that is to say, responsible government to which we have earlier referred. This cannot be said to be an unreasonable view. The minister is the one who is responsible for an answer given in Parliament, within the practical modern limits to which we have referred. It is his or her answer itself which is a, or the, matter of public interest, and not the various documents which may have canvassed that answer, or other possible answers. It will be in respect of the answer that the minister actually gives that any political price will have to be paid, just as there may well be a political price to be paid for any claim of conclusiveness, whether it is well-based or not.
The seventh ground is at least arguably not reasonable, in effect, that the public may not be trusted to understand the technicalities of, and the jargon used in otherwise revealable documents. It is not as if the public is unaided by experts and others who can, including, for example, an informed journalist ….
The grounds taken did not clearly articulate something that the oral evidence suggested, namely that the respondent was concerned that what might be disclosed could well be misrepresented, abbreviated or distorted, or at least not presented in a balanced way. Indeed, cross-examination of the appellant’s witnesses certainly did go some way towards demonstrating lack of balance, indeed, lack of balance even in the reporting of the particular issue with which the Tribunal was concerned. That would not however be a ground that we would regard as reasonable, for the same reasons as we would reject a ground based upon an asserted lack of technical expertise, or inability to understand jargon on the part of each and every member of the public.”[71]
[70] “The release of the material would tend to be misleading or confusing in view of its provisional nature, as it may be taken wrongly to represent a final position (which it was not intended to do) and ultimately may not have been used or have been overtaken by subsequent events or further drafts.” (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 450; 208; 537 [80] per Callinan and Heydon JJ
[71] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 466-467; 220-221; 549-550 [120]-[128]
ASIC has not claimed exemption under s 45 for Document 577. Unlike a court, which is limited to deciding a civil proceeding on the basis of the case presented by the parties, my obligation extends to discerning the correct or preferable decision. Therefore, ASIC’s omission to claim exemption under s 45 does not detract from my duty to consider it if I think it relevant to do so. The only matter I must keep in mind in taking this course is my duty to accord procedural fairness to the parties and my related duty, under s 39 of the Administrative Appeals Tribunal Act 1975 (AAT Act), to give the parties a reasonable opportunity to present his or her case, to inspect any documents to which the Tribunal proposes to have regard and to make submissions in relation to those documents. Given the substance of Document 577,
I am satisfied that the parties have had the relevant opportunities and have addressed the issues raised by Document 577 in the context of s 45. They have done so in a way and in circumstances that lead me to conclude that their submissions would be no different had they consciously directed them to Document 577.
I am satisfied that Document 577 is exempt under s 45 in relation to the passage beginning with the word “You” and ending with the word “position”. That is information that can be identified with specificity and was conveyed in confidence to ASIC in circumstances importing an obligation of confidence. It is information capable of being confidential and its disclosure under the FOI Act would be a misuse of the information. Its unauthorised use would bring consternation to the person conveying it. That passage is exempt under s 45 of the FOI Act.
ANNEXURE N: Decision
Generally, a decision of the Tribunal takes effect immediately it is given.[399] In a case such as this, it is not appropriate that it do so for ASIC should have an opportunity to decide whether it wishes to lodge an appeal to the Federal Court under s 44 of the AAT Act. Under that section, it has until the twenty-eighth day after the day on which I give this decision in which to lodge its appeal.[400] I have given it a little longer so that, should it wish to do so, it may apply to the Federal Court for an order staying the operation and implementation of my decision.
[399] AAT Act, s 43(5A)
[400] AAT Act, s 44(2A)
In making that decision, I have relied on s 43(5B) of the AAT Act for my power to make that decision. It provides that:
“The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.”
I note that Deputy President McDonald has relied on s 41(2) of the AAT Act to defer the operation of the decision he gave in Re Proh and Tax Agents’ Board (Victoria).[401] That section provides:
“The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
[401] [2010] AATA 149; (2010) 115 ALD 68
Deputy President McDonald said:
“… [T]he respondent contacted the tribunal, requesting that if it was to affirm the decision then the previously granted stay be continued until the respondent has had the opportunity of arranging to implement the decision. Section 41(2) of the AAT Act contemplates the making of an order staying the implementation of a decision ‘...for the purpose of securing the effectiveness of the hearing and determination of the application for review’. In the view of the Tribunal, s 41(2) is expressed broadly enough to contemplate the continuation of the stay beyond the time at which the determination is issued, if doing so would secure the effectiveness of the determination of the application. …”[402]
[402] [2010] AATA 149; (2010) 115 ALD 68 at [19]; 72-73
Regretfully, I find myself unable to accept Deputy President McDonald’s reasoning or conclusion on this issue. The wording of s 41(2) shows that power to stay is given in s 41(2) for two purposes. One is for securing the effectiveness of the hearing. The other is for the determination of the application for review. Both those reasons cease to have currency when the Tribunal has completed the hearing and determined the application for review. The wording of s 41(2) also shows that what is stayed is the “decision to which the relevant proceeding relates”. In the case of an application for review, that is the decision under review. It is not the decision given by the Tribunal after the review has been completed. Therefore, it seems clear from the face of s 41(2) that it cannot be relied on to stay the operation of the Tribunal’s own decision.
That it cannot be relied on becomes even clearer when regard is had to the remaining provisions of s 41. Section 41(3) gives the Tribunal power to vary or revoke the order made under s 41(2). Sections 41 (4) and (5) relate to the processes that the Tribunal must follow before it may make an order. Section 41(6)(a) provides that any order is subject to any conditions imposed by the Tribunal.
Section 41(6) provides:
“An order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)):
(a)…
(b)has effect until:
(i)where a period for the operation of the order is specified in the order – the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or
(ii)if no period is so specified – the decision of the Tribunal on the application for review comes into operation.”
It is clear from s 41(6)(b) that any order made by the Tribunal under
s 41(2) or as varied under s 41(3) can have effect under s 41 only until the Tribunal’s decision comes into operation. If the Tribunal has made an order under s 41(2) and that order is in force immediately before it gives its decision, s 43(5C) provides that, unless otherwise ordered by the Tribunal, the Federal Court or the Federal Magistrates’ Court, the Tribunal’s decision is stayed until the conclusion of the appeal period under s 44(1) or, if the appeal is brought, that appeal is determined. The order made under s 41(2) does not continue in force by virtue of s 41(2) but by virtue of s 43(5C). The Tribunal’s power to vary its continued operation after it has given its decision does not arise under s 41 but under s 43(5C). It is a power that relates only to an order made under s 41(2) and in force immediately before it gave its decision. Section 43(5C) cannot be regarded as a source of power to make a fresh order under
s 41(2) just as s 41(2) is no longer a source of power. The only source of power lies in s 43(5B) of the AAT Act and that is the power I rely on.
For the reasons I have given, I have decided to:
1.by consent, affirm the decision of the respondent dated 16 August 2004 in so far as it decides that the following documents are exempt under the Freedom of Information Act 1982:
(1)documents 342 – 345;
(2)documents 347 – 354;
(3)documents 356 – 365;
(4)documents 369 – 370;
(5)documents 372 – 421;
(6)document 423;
(7)documents 426 – 440;
(8)documents 448 – 475;
(9)documents 477 – 513;
(10)documents 515 - 575;
(11)document 578;
(12)documents 580 – 582;
(13)documents 584 – 637;
(14)documents 639 – 641; and
(15)documents 642 - 1322;[403]
[403]
2.by consent:
(1)set aside the decision of the respondent dated 16 August 2004 in so far as it decides that the following documents are exempt under the Freedom of Information Act 1982:
(a)documents 179, 180, 215, 241, 244, 421, 444 and 650; and
(b)documents 346, 355, 366, 367, 368, 371, 422, 424, 425, 441, 447, 476, 514, 582 and 584; and
(2)substitute for that part of the decision a decision that:
(a)Documents 179, 180, 215, 241, 244, 421, 444 and 650; and
(b)Documents 346, 355, 366, 367, 368, 371, 422, 424, 425, 441, 447, 476, 514, 582 and 584;
are not exempt under the Freedom of Information Act 1982;
3.in so far as the decision of the respondent dated 16 August 2004 decides that Documents 1 to 341, 577, 579 and 583 are exempt under
ss 36 of the Freedom of Information Act 1982:
(1)set aside the decision except in so far as it relates to the passage in Document 579 commencing with the word “MR” in the fourth line from the bottom on page two and ending with the word “Yes” on the last line of the third page; and
(2)substitute for that part of the decision a decision that:
(a)Documents 1 to 341, 577, 579 (except in so far as it relates to the passage in Document 579 commencing with the word “MR” in the fourth line from the bottom on page two and ending with the word “Yes” on the last line of the third page) and 583 are not exempt under
s 36 of the Freedom of Information Act 1982; and
(3)affirm the decision that the passage in Document 579 commencing with the word “MR” in the fourth line from the bottom on page two and ending with the word “Yes” on the last line of the third page is exempt under s 36 of the Freedom of Information Act 1982;[404]
[404] A claim for exemption under s 36 was not made in relation to Document 576 and Document 638 was not claimed to be exempt under either ss 36 or 40(1)(d).
4.in so far as the decision of the respondent dated 16 August 2004 decides that Document 577, 579 and 583 are exempt under s 37(1)(b) of the Freedom of Information Act 1982:
(1)set aside the decision in relation to Documents 577 and 583 and the whole of Document 579 other than:
(a)the passage on page two beginning with the word “A” in the fourteenth line and ending with the word “meeting.” on the seventeenth line; and
(b)the passage on page two beginning with the word “Several” in the twenty third line and ending with the word “that” in the thirtieth line;
(2)substitute for that part of the decision a decision that:
(a)Documents 577 and 583 are not exempt under s 37(1)(b) of the Freedom of Information Act 1982; and
(b)Document 579 is not exempt under s 37(1)(b) of the Freedom of Information Act 1982 in relation to the whole of the document other than:
(i)the passage on page two beginning with the word “A” in the fourteenth line and ending with the word “meeting.” on the seventeenth line; and
(ii)the passage on page two beginning with the word “Several” in the twenty third line and ending with the word “that” in the thirtieth line;
(3)affirm the decision in relation to Document 579 in relation to:
(a)the passage on page two beginning with the word “A” in the fourteenth line and ending with the word “meeting.” on the seventeenth line; and
(b)the passage on page two beginning with the word “Several” in the twenty third line and ending with the word “that” in the thirtieth line;
5.in so far as the decision of the respondent dated 16 August 2004 decides that Document 577, 579 and 583 are exempt under s 37(2)(b) of the Freedom of Information Act 1982:
(1)set aside the decision; and
(2)substitute a decision that Document 579 is not exempt under
s 37(2)(b) of the Freedom of Information Act 1982;
6. in so far as the decision of the respondent dated 16 August 2004 decides that Documents 1 to 341, 576, 577, 579 and 583 are exempt under 40(1)(d) of the Freedom of Information Act 1982:
(1)set aside the decision except in so far as it relates to the passage in Document 579 commencing with the word “MR” in the fourth line from the bottom on page two and ending with the word “Yes” on the last line of the third page; and
(2)substitute for that part of the decision set aside a decision that Documents 1 to 341, 576, 577, 579 and 583 are not exempt under s 40(1)(d) of the Freedom of Information Act 1982; and
(3)affirm the decision that the passage in Document 579 commencing with the word “MR” in the fourth line from the bottom on page two and ending with the word “Yes” on the last line of the third page is exempt under s 40(1)(d) of the Freedom of Information Act 1982;
7.in so far as the respondent’s decision dated 16 August 2004 decides that Documents 241 and 638 are exempt under s 45 of the Freedom of Information Act 1982:
(1)affirm the decision in relation to:
(a)Document 241 but only in relation to:
(i)a submission made by Taylor Woodings to ASIC regarding the Financial Reporting and Meeting Obligations of Companies in Administration;
(ii)the content of the fifth column of the table prepared by the respondent summarising the responses to questions in the Discussion Paper;
(iii)the last four lines on the second page of Document 241, beginning “· Again” and the first ten lines on the third page, ending with the word “website”;
(b)Document 577 but only in relation to the passage beginning with the word “You” and ending with the word “position”; and
(c)Document 638;
(2)in relation to that part of the decision that relates to documents in Document 241 other than the submission made by Taylor Woodings to ASIC regarding the Financial Reporting and Meeting Obligations of Companies in Administration:
(a)set that part of the decision aside; and
(b)substitute a decision that documents in Document 241 other than:
(i)the submission made by Taylor Woodings to ASIC regarding the Financial Reporting and Meeting Obligations of Companies in Administration;
(ii)the content of the fifth column of the table prepared by the respondent summarising the responses to questions in the Discussion Paper; and
(iii)the last four lines on the second page of Document 241, beginning “· Again” and the first ten lines on the third page, ending with the word “website”;
are not exempt under s 45 of the Freedom of Information Act 1982;
8.in so far as the respondent’s decision dated 16 August 2004 decides that Documents 1-3, 5-7, 17, 23-24, 36-41, 46-49, 52, 53-58, 61, 65-66, 68-69, 72-73, 85, 87, 90-92, 96, 98-100, 104-107, 109, 111-112, 117-121, 123-124, 126, 128-131, 132, 133, 134, 135, 136-139, 142-144, 148, 150, 153, 158-159, 165, 167-169, 176, 181, 186, 188, 190, 191, 193, 194, 195,196, 199, 204-205, 218-219, 230, 232, 235, 240, 242, 251-254, 269, 276, 283, 321, 340, 577, 579 and 638 are exempt under s 42 of the Freedom of Information Act 1982:
(1)set aside that part of the decision that relates to the following documents or parts of documents:
135 and 195 in relation to their covering emails;
6 in relation to their handwritten notations,
7 in relation to [6] on page 4;
36 in relation to the first sentence of [24];
39 in relation to the third sentence of [5];
41 in relation to the third sentence of [7] on page 3 and all but the third sentence of [3] on page 6;
58;
65;
66 in relation to the whole of the document other than the sentence on page 9 beginning with the word “Stephen”;
85 in relation to dot point 1 in the last sentence;
90 in relation to [17] on page 5 and [27] on page 8;
104 in relation to the whole of paragraph [7] on page 3 other than the sentence beginning with the word “Before” and the sentence immediately following that sentence;;
105 in relation to the whole of [5] on page 3 other than the first two sentences and [3] on page 6;
107 in relation to the whole of [3] on page 3 other than the first two sentences;
109 in relation to the whole of [2] on page 3 other than the first two sentences;
111 in relation to the whole of [5] on page 2 other than the first two sentences;
112 and 133 in relation to the whole of the document other than the final sentence beginning with the word “The” in [2] and [3] and [4];
117 in relation to the whole of [5] on page 2 other than the first two sentences;
124 in relation to all but the passage beginning immediately following the words “Dear Richard and Rob” on the first page and concluding with the words immediately preceding the words “I shall” on the second page;
128 in relation to the whole of [3] on page 2 other than the last sentence;
130 in relation to the whole document other than the content of the first two dot points and the third dot point on the first page of the attachment to the email;
136 in relation to all but the fifth and sixth lines of substantive text beginning with the word “It” and ending “”.”;
138 in relation to the first ten lines on page 6;
139 in relation to [5] on page 2 and [25] on page 6;
143 in relation to the whole of the document other than the passage beginning with the words “I have” and concluding with the word “week”;
144;
158;
159 in relation to the whole of the document other than the paragraph beginning with the word “Where” and containing one sentence;
165 in relation to the whole of the document other than the email from Mr Gadi Bloch to Mr Brendan Byrne seeking his legal advice, Mr Byrne’s email in response and Mr Bloch’s request for further legal advice;
167 in relation to the whole of the document other than the email from Mr Gadi Bloch to Mr Brendan Byrne seeking his legal advice;
168 in relation to the whole of the document other than the email from Mr Gadi Bloch to Mr Brendan Byrne seeking his legal advice, and Mr Byrne’s email in response;
176 and 199 in relation to the whole of [7] on page 3 other than the last three sentences beginning with the word “This” and [29(c)] on pages 5-6;
186 in relation to the whole of [3] on page 8 other than the first sentence starting with the word “It”;
188;
190 in relation to [47] on page 10;
204;
205;
218;
230;
235;
242 in relation to the whole of [7] on page 3 other than the last three sentences of that paragraph and [29(c)] on pages 5-6;
252 in relation to handwritten annotations;
253;
254;
269 in relation to the whole of [3] other than that part of the first sentence beginning with the word “The” and ending with the word “and”;
577;
579; and
638;
(2)substitute for that part of the decision that relates to the documents or parts of documents identified in 8(1) of this decision a decision that the documents or parts of documents identified in 8(1) are not exempt under s 42 of the Freedom of Information Act 1982; and
(3)otherwise affirm the decision in so far as it relates to exemptions claimed under s 42 of the Freedom of Information Act 1982; and
9.this decision does not come into operation until 30 September 2010.
I certify that the four hundred and eighty six paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
Kate Conners Associate
Dates of Hearing 27, 28, 29 and 30 January 2009
Date of Decision 27 August 2010
Applicant Appeared in personCounsel for the Respondent Mr Richard Niall with Mr Graham Hill
Solicitor for the Respondent Ms Judith Birch
Australian Securities and Investments Commission
Parties Joined:
Counsel for Newmont Australia Ltd Mr Jeremy Whelen
Solicitor for Newmont Australia Ltd Ms Fiona Steffenson
Kelly & Co
Counsel for Michael Ryan Mr Brahma Dharmananda with Mr Benjamin Murphy
Solicitors for Michael Ryan Mr Nigel Hunt
Mallesons Stephen Jaques
Jeffrey Knapp Appeared in person
“…The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge), (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence, and (iv) there is actual or threatened misuse of that information. … It may be necessary, as Megarry J thought probably was the case (Coco v Clark (AN) (Engineers) Ltd [1969] RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff….”
s 43 of the FOI Act where a request has been made for access to a document concerning that person’s business or professional affairs or the business, commercial or financial affairs of an organization or undertaking. Section 59A permits a person to apply for review of a decision that a document is not an exempt document under s 41 when another person has made a request for access to a document containing personal information about that person.
“… to the administration of justice. They allow issues to be determined informally and expeditiously. They allow less strict rules as to representation to apply. They allow matters to be discussed which the parties might not wish to discuss in open court. They encourage openness. They are less intimidating to litigants which is particularly important in the case of the small claims jurisdiction …” (Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673 at 686 per Lord Woolf)
At the same time, the public continues to have the right to know and observe what happens in that private hearing and arrangements need to be made to accommodate that right (Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673 at 686).
s 55I. An AGS lawyer acting in that capacity is entitled to do everything necessary or convenient for that purpose: Judiciary Act, s 55Q(1)(a). Such a person is not subject to the law of a State or Territory relating to legal practitioners except to the extent that such laws impose rights, duties or obligations on legal practitioners in relation to their clients or to the courts or provide for disciplinary proceedings in relation to the misconduct of legal practitioners.
These are the documents to which Mr Matthews no longer seeks access (see [173] and [174] above) as modified by ASIC’s earlier indication in its Statement of Facts and Contentions not to pursue claims for exemption in relation to certain documents (see [175]-[176] above). The documents in relation to which ASIC gave that indication are the subject of [2] of the decision. I have affirmed ASIC’s decision in relation to Document 641 even though it indicated that it was no longer claiming exemption in relation to it. Its indication was subject to its having consultations with third parties. I do not know whether those consultations have taken place and, in any event, it is among the documents to which
Mr Matthews no longer seeks access.
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