Re McKinnon and Secretary, Department of Prime Minister and Cabinet.
[2007] AATA 1969
•19 November 2007
ADMINISTRATIVE APPEALS TRIBUNAL )
) V 2005/1033
GENERAL ADMINISTRATIVE DIVISION )
Re:MICHAEL McKINNON
Applicant
And:SECRETARY, DEPARTMENT OF PRIME MINISTER AND CABINET
Respondent
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 29 April 2008
CORRIGENDUM TO DECISION [2007] AATA 1969
The Tribunal amends its decision and reasons for decision published on 19 November 2007. Paragraph 139 should read as follows:
“139. In making this submission, Mr McKinnon relied on a passage from the judgment of Bowen CJ and Fisher J in News Corporation v National Companies and Securities Commission[1] in which they said that s 36(1)(b) “… is to be interpreted according to the words used, bearing in mind the stated object of the Act.”[2] What he did not refer to was the earlier passage in that judgment to the effect that it is inappropriate to interpret the exemptions narrowly or the right of access widely in light of the FOI Act’s stated object in s 3.[3] It is inappropriate to lean either way for “The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved.”[4] That passage puts the passage to which Mr McKinnon referred in its proper context. Section 3(1)(b) is a statement of intent. Part IV of the FOI Act sets out what Parliament has regarded as the “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.” That it has done so is emphasised by the fact that each exemption is to be construed according to its own terms. It is not to be read as limited in its scope or operation in any way by any other provision of Part IV. That is the effect of s 32(a).”
[1] (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83
[2] (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83 at 66; 279; 85
[3] (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83 at 66, 279; 84
[4] (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83 at 66, 279; 85
S A FORGIE
Deputy President
CATCHWORDS – FREEDOM OF INFORMATION – refusal of access to documents – conclusive certificates – whether reasonable grounds for claim that disclosure of certain documents contrary to public interest – whether certain documents exempt under s 34 – whether certain documents subject to legal professional privilege – whether client/solicitor relationship – decision affirmed.
Administrative Appeals Tribunal Act 1975 s 37
Archives Act 1983, ss 3, 22A, 31
Freedom of Information Act 1982 ss 3, 4(1), 9, 11, 15, 32, 34, 36, 42, 56, 58, 61
Judiciary Act 1901 ss 55D, 55E, 55I, 55J, 55K, 55M, 55N, 55Q
Public Service Act 1999 ss 10, 11, 12, 13
AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180; 64 ALR 97
Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Grant v Downs (1976) 135 CLR 674; 11 ALR 577
Harris v Australian Broadcasting Commission (1983) 51 ALR 581
McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
Minter v Priest [1930] AC 558
News Corporation Ltd v National Companies and Securities Commission (No 4) (1984) 1 FCR 64; (1984) 57 ALR 277
News Corporation v National Companies and Securities Commission (1983) 6 ALD 53
Re Chapman and Minister for Aboriginal & Torres Strait Islander Affairs (1996) 43 ALD 139
Re Doran Constructions Pty Ltd (in liq) (2001) 194 ALR 101
Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626
Re McDonald Pty Ltd and Department of Territories and Local Government (1985) 9 ALD 236
Re McGarvin and Australian Prudential Regulation Authority (1998) 53 ALD 161
Re Swiss Aluminium and Department of Trade (1985) 9 ALD 243
Re Waterford and Treasurer of the Commonwealth (No 1) (1984) 6 ALN N347
Rich v Australian Securities and Investments Commission [2004] HCA 42
Shergold v Tanner(2000) 102 FCR 215; 179 ALR 150; 62 ALD 584
The Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561
Wallace and Director of Public Prosecutions [2003] AATA 119
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 [2007] AATA 1969
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/1033
GENERAL ADMINISTRATIVE DIVISION )
Re MICHAEL McKINNON
Applicant
And SECRETARY, DEPARTMENT OF PRIME MINISTER AND CABINET
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 19 November 2007
Place: Melbourne
Decision:The Tribunal affirms the decision of the respondent dated 29 November 2005.
S A FORGIE
Deputy President
REASONS FOR DECISION
Under the Freedom of Information Act 1982 (FOI Act), Mr McKinnon asked the Department of Prime Minister and Cabinet (PM&C) on 20 July 2005 for access to certain documents relating to options that had been considered for industrial reform in the previous 12 months or that related to particular consequences of industrial relations reform. He excluded Cabinet documents from his request.
Dr Shergold, the Secretary to PM&C, issued two conclusive certificates under s 36(3) of the FOI Act. I have decided that the decisions should be affirmed but, in doing so, have not accepted all of the grounds upon which PM&C relied.
THE REQUEST
Mr McKinnon made his request to PM&C in the following terms:
“(a) options considered on industrial relations reform in the last 12 months and any forecasts or analysis or other reports or documents on (b) whether dismissals will increase (b) the extent of any expected jobs growth (c) the extent and likelihood of any fall in real incomes for any Australians (d) any forecast or assessment of the likelihood or extent that entitlements like four weeks annual leave, sick leave, leave loading, shift allowance and penalties will no long provided by employers. …”[5]
[5] Documents lodged as required by s 37 of the Administrative Appeals Tribunal Act 1975 (T documents), 4
On 1 August 2005, he modified his request to exclude Cabinet documents including Cabinet submissions, Cabinet minutes and letters considered under the line by Cabinet.[6]
[6] Noted in letter from PM&C to Mr McKinnon dated 24 August 2005: T documents, 17
BACKGROUND
The decisions
PM&C did not respond to Mr McKinnon’s request within the time limits specified in s 15 of the FOI Act. As a consequence, PM&C was deemed to have made a decision refusing to grant Mr McKinnon access to the documents he requested. That is the effect of s 56(1).
After Mr McKinnon applied on 10 November 2005 for review of the deemed decision, Mr Patrick Sedgley, who was then the Acting Assistant Secretary of the Taxation, Superannuation and Workplace Relations Branch (TSWR Branch) in PM&C, identified 56 documents as coming within the scope of Mr McKinnon’s request. He did so on 29 November 2005 and they are numbered 1 to 56. Mr Sedgley decided that two of the documents could be released in full but that parts of 18 others were exempt from disclosure under the FOI Act and that the remaining 36 documents were exempt in their entirety. Mr Sedgley relied variously on the exemptions in ss 34 and 36 of the FOI Act. Relying on s 56(5), I decided on 30 November 2005 to treat the application lodged by Mr McKinnon as extending to a review of Mr Sedgley’s decision to refuse access to the 54 documents.
After a further review of Mr McKinnon’s request and of PM&C’s documents, Mr Sedgley decided on 21 December 2005 that two further documents came within the scope of that request. He decided that these documents, numbered 57 and 58, were also exempt and relied on ss 34 and 36.
By June 2006, a further four documents, numbered 13A to 13D, had been identified as coming within the scope of the request. They were claimed to be exempt under s 36.
The conclusive certificates
On 1 August 2006, the Secretary of PM&C, Dr Peter Shergold, signed two conclusive certificates under s 36(3). The first related to documents numbered 1 to 13D (other than documents and specified 11 grounds numbered from (a) to (k) (first certificate). The second related to documents numbered 14 to 58 and specified six grounds numbered from (a) to (f) (second certificate). Grounds (a) to (g) in the first certificate were not replicated in the second certificate. Grounds (h), (i) and (j) in the first replicated grounds (c), (e) and (a) respectively in the second. Ground (k) was partially replicated in ground (b) in the second. Grounds (d) and (f) in the second certificate were not replicated in the first certificate. With that in mind, I will set out the first certificate in full but set out the second only in so far as it differs from the first. Each ground is followed by the shorthand name assigned to it by PM&C’s representatives.
First Certificate
“(a) While these documents were not formally placed before the Minister for Employment and Workplace Relations (the Minister) or Cabinet they were an integral component of the high level policy development and advising. For this reason many of these documents were classified as Cabinet-in-Confidence. In these circumstances the important public interest reasons which warrant preserving the confidentiality of Cabinet documents and deliberations apply with considerable force also to these documents. [Cabinet-related ground]
(b)These documents were an integral part of DEWR’s process for developing policy advice for the Minister and Government. If the documents are made public, members of the public may seek to deduce from them whether particular legislative changes were or were not determined by the Government consistent with DEWR’s recommendations to the Minister. Australia’s system of parliamentary government would not be advanced, and in fact would be injured, if Government decision-making were to be subjected to this type of ex post facto analysis. [DEWR recommendations ground]
(c)The Government has responsibility for its legislative agenda. However, the public interest is not served by the Government and Minister being placed in a position where they are publicly answerable or accountable for an entirely different matter, that is, whether Government decisions are or are not taken in line with Departmental advice. [accountability ground]
(d)The public interest demands that the important role of the Australian Public Service as a professional and apolitical service equally able to serve either alternative Government be upheld. This requires that officials involved in the formulation of high level policy advice have every assurance that their advice will remain confidential. This is especially important in circumstances such as apply in this case where officials’ participation in discussions and deliberations was clearly on the understanding that confidentiality would be preserved. [apolitical public service ground]
(e)Breaching the above confidentiality requirement could also place at risk the quality of future advice in terms of its frankness and impartiality. In addition it would encourage future policy development and advising to be conducted mainly via oral communication with very little material for consideration being reduced to writing. This would impede the ability of the officials involved to fully and properly understand and assimilate information relevant to the formulation of advice. The quality of policy deliberation and advice would inevitably suffer. [frankness and understanding ground]
(f)The public interest would not be served by making available to the public material which may be incomplete or which was supplemented or overtaken by subsequent events. The effect of doing so could in fact be to mislead the public as to what information and material were available to the Minister and Government when decisions were taken on particular matters. [incomplete information ground]
(g)The Workplace Relations Reform Steering Committee (WRRSC) process included participation by a wide range of officers at both senior and more junior levels. Unless the confidentiality of the WRRSC and DEWR papers is preserved any future process is highly likely to involve a minimum of material being reduced to writing. This would significantly impact on the efficiency of DEWR’s operations as regards the development of high quality policy advice and would also limit the staff development opportunity such a major exercise presents. Over time this narrower process would inevitably detract from the overall efficiency and effectiveness both of staff and of DEWR as a whole. [reduced writing ground]
(h)The workplace relations reform legislation is now in the public domain and disclosure of the working documents may divert important public discussion away from the actual legislation to a discussion of the options initially considered but later discounted. This would lead to speculation about possible future workplace relations reforms which are not Government policy. [discounted options ground]
(i)It is necessary to protect the integrity of the decision-making process by clearly separating the final decision-making step and the reasons for it from the advice and opinions of the senior officers who contributed to the consideration of the relevant issues. [senior officers’ opinions ground]
(j)Senior officers responsible for developing and evaluating policy options and recommending an approach to the Prime Minister regarding matters of ongoing sensitivity must have the benefit of written exposition and analysis of relevant considerations in order to properly discharge their responsibilities. The release of their written material may make senior officers reluctant in future to create a written record, which would be highly detrimental to both the policy formulation and decision-making processes of government. [written analysis ground]
(k)Senior officers involved with the preparation of documents containing material of the kind referred to in paragraph (j) above have a reasonable expectation that they would remain confidential and release of the documents would tend to inhibit frank and objective analysis and evaluation of issues and policy options in future, or to inhibit the recording of them. This would be contrary to the public interest in the efficient and effective conduct of PM&C’s functions, as these parts contain discussion of options for consideration by Cabinet that were ultimately not pursued. Releasing this information would disclose, or tend to disclose, the nature of Cabinet’s deliberations. [Cabinet and inhibition ground]”
Second Certificate
“(a) … [same as ground (j) in the first certificate]
(b)Senior officers involved with the preparation of documents containing material of the kind referred to in paragraph (a) above, have a reasonable expectation that they would remain confidential and release of documents would tend to inhibit frank and objective analysis and evaluation of issues and policy options in future, or to inhibit the recording of them. This would be contrary to the public interest in the efficient and effective conduct of PM&C’s functions. [inhibition ground] [in part, the same ground as ground (k) in the first certificate]
(c)... [same as ground (h) in the first certificate]
(d)Disclosure of documents relating to the workplace relations reforms which indicate the content of confidential Cabinet deliberations and are not therefore closely connected to the Cabinet process, while they may not constitute Cabinet documents under section 34, would be contrary to the public interest because it would breach the confidentiality applying to the deliberations and processes of Cabinet.
(e)… [same as ground (i) in the first certificate]
(f)the matters referred to relate to recommendations made at the highest level of Government. [high level ground]”
The witnesses
Mr Sedgley is the Assistant Secretary of the TSWR Branch in PM&C. In the eighteen years that he has been an officer in the Australian Public Service (APS), Mr Sedgley has been engaged in policy formulation. Among the responsibilities of the TSWR Branch are issues relating to workplace relations reform. Mr Sedgley has held his position since January 2006. Before his appointment to that position, he had been the Senior Adviser in the Branch and had acted in the position on numerous occasions. His work in PM&C has involved Mr Sedgley in the preparation of policy advice across a range of taxation, superannuation and workplace relations matters. Those matters have included changes to personal income tax rates and scales, changes to international tax arrangements, tax measures to encourage philanthropy, business tax reform following the Review of Business Taxation,[7] changes to the superannuation surcharge, rules governing pensions provided by small superannuation funds and the development of laws governing independent contractors.
[7] A report by Messrs Ralph, Allert and Joss published in July 1999
Prior to his working in PM&C, Mr Sedgley had worked in the Department of the Treasury (Treasury). In that Department, he was involved in the preparation of policy advice on a range of tax policy matters. Those matters included the development of transitional rules for the abolition of the wholesales sales tax and the implementation of the Goods and Services Tax (GST), the development of GST provisions applying to financial services and modifications to Australia’s income tax law as it applies to non-residents of Australia.
Ms Myra Croke is the Assistant Secretary, or head, of the Cabinet Secretariat in PM&C. Between 1992 and 1996 she worked in the Government Division of PM&C. In 1996, Ms Croke headed the Parliamentary Affairs and Legislation Section in the Government Division of PM&C providing secretariat support to the Parliamentary Business Committee of Cabinet. From the end of 1999 until 2000, she was a Senior Adviser in the Cabinet Secretariat and Secretary to the Federal Executive Council. This position was followed by three years, between 2000 and 2003, as Senate Parliamentary Liaison Officer. Ms Croke has held her current position as head of the Cabinet Secretariat since September 2003.
Since 2003, Ms Croke has attended in excess of eighty meetings of Cabinet or Cabinet committee meetings. She did so as one of three or four PM&C officers known as Cabinet notetakers responsible for taking handwritten notes of the discussions. Ms Croke did not attend four of the Cabinet meetings relating to documents that she has spoken about in her affidavit but has had access to records of the Cabinet meetings held on 22 February 2005, 7 March 2005, 23 May 2005 and 12 July 2005. She did attend the Cabinet meetings held on 15 March 2005 and 30 March 2005.
Mr John Kovacic is the Group Manager of the Workplace Relations Policy Group in the Department of Employment and Workplace Relations (DEWR) and has been since May 2005. He has worked either in DEWR or its predecessors for over 26 years. Since 1999, he has been an officer of the Senior Executive Service (SES). During his career, he has been involved in the provision of policy advice to government on a range of issues. They have included:
“- legislative reform such as the Government’s recent workplace relations reforms and legislation giving effect to the Government’s response to the Cole Royal Commission into the Building and Construction Industry;
-industrial disputes and possible Government responses;
-initiatives to further advance the Government’s workplace relations policies, for example the workplace relations aspects of the Government’s higher education reforms; and
-Australia’s approach on international issues, particularly as they relate to the International Labour Organisation.”[8]
[8] Exhibit 2 at [3]
Broad background against which documents created
The facts forming the broad background against which the documents were created were not the subject of dispute between the parties. In light of that and on the basis of the evidence to which I will refer, I have made the findings of fact on those matters in the following paragraphs.
The TSWR Branch of PM&C is responsible for advising the Prime Minister on taxation, superannuation and workplace relations policy proposals contained in correspondence or Cabinet Submissions by Ministers other than the Prime Minister. Its involvement with the development of the workplace relations reforms began with its participation in the initial inter-departmental committee (IDC) in 2004. PM&C was represented on that IDC as were DEWR, Treasury, the Department of Finance and Administration and the Department of Industry, Tourism and Resources.[9] The purpose of the meeting of the IDC on 14 December 2004 was to set the broad direction for advice later given to the Minister for Employment and Workplace Relations (EWR Minister) regarding possible broad directions that the reforms could take and for submissions subsequently made to Cabinet. The Branch has continued being involved in workplace relations issues and it has given advice regarding amendments to the Workchoices legislation after it had commenced operation.
[9] Exhibit 5 at [28]
DEWR supported its Minister regarding the issues. In particular, it prepared a broad outline of the proposals to enable him to present them to Cabinet on 22 February 2005. It also prepared a detailed submission regarding the broad strategic direction for consideration by Cabinet in March 2005. On 26 May 2005, the Prime Minister and the EWR Minister announced the broad pillars of the reforms that the Government proposed to make to workplace relations.
The Deputy Secretary – Workplace Relations in DEWR established a Workplace Relations Reform Steering Committee (WRRSC) to develop and refine options during June and July 2005. It comprised that Deputy Secretary and Group Managers of DEWR’s Workplace Relations Legal, Policy and Services Group Managers as well as representatives from PM&C. In his affidavit, Mr Kovacic described the WRRSC as DEWR’s workplace relations reform policy think-tank.[10] It functioned as DEWR’s workplace relations reform policy think-tank. It was the main group given the task of developing and evaluating policy options that subsequently formed the basis of advice to the EWR Minister regarding options for decisions that could be taken on the details of the Government’s workplace relations legislative reform agenda.
[10] Exhibit 1 at [6]
The WRRSC worked in the following way:
“9. Staff in either the Workplace Relations Policy Group or the Workplace Relations Legal Group prepared Cabinet-in-Confidence options papers on particular issues for discussion and consideration by the WRRSC. This typically involved a number of staff at a range of classification and seniority levels under the direction and supervision of their Senior Executive Service Branch Heads.
10.Meetings of the WRRSC were chaired by the Deputy Secretary – Workplace Relations. Authors of options papers and their Branch Heads participated in the meetings at which their papers were discussed. After the preferred option to deal with any particular issue was settled by the WRRSC, typically the author(s) of the relevant options paper would draft a minute from the Deputy Secretary – Workplace Relations to the Minister recommending the proposed position on that issue for the Minister’s consideration.
11.The Minister’s proposals were subsequently the subject of wider Government consideration.
12.In summary, the role of the WRRSC was integral to the high level policy development and advising process which DEWR undertook to support the Minister in settling the details of the Government’s workplace relations reform proposals consistent with the Government’s decision regarding the pillars of those reforms.”[11]
[11] Exhibit 1
THE EVIDENCE
Handling matters under-the-line in Cabinet
The Foreword to the Cabinet Handbook current at the time the relevant documents were created states that it:
“… lays down the principles and conventions by which the Cabinet system operates. It also lays down the procedures designed to ensure that the Cabinet process fulfils its central purposes of contributing to consistency in public policy formulation, supporting ministers in meeting their individual and collective responsibilities, facilitating co-ordinated and strategic policy development and enabling informed decision-making on all issues requiring collective determination.”[12]
[12] Exhibit 6, Annexure A
Matters are raised “under-the-line” when the Prime Minister permits them to be raised in a meeting of Cabinet without first lodging a formal submission. They are only raised under-the-line when they are:
“(a) urgent matters of a procedural rather than a policy nature;
(b)urgent policy matters which are sufficiently straightforward not to require a formal Cabinet submission and which cannot be resolved in another way (for example, by an exchange of correspondence between ministers); and
(c)appointments …”[13]
[13] Exhibit 6, Annexure A at [4.16], 17
A Minister’s letter to the Prime Minister asking for a matter to be considered under-the-line has to include sufficient information on the subject and its background to be a basis for Cabinet discussion, state that it relates to either (a) or (b) above and the reasons for urgency.[14] The letter must be stamped “Cabinet-in-Confidence”. If the Prime Minister agrees to a matter’s being raised under-the-line, the Minister’s letter is circulated to all Cabinet Ministers.[15]
[14] Exhibit 6, Annexure A at [4.18], 18
[15] Exhibit 6, Annexure A at [4.19], 18
Cabinet submissions
The Drafter’s Guide is issued by PM&C and is directed to the preparation of Cabinet Submissions and Memoranda. It describes Cabinet
Submissions as:
“… taken to Cabinet by ministers seeking a decision to recommendations on a proposed course of action. The recommendations summarise the action Cabinet is being asked to consider and, assuming the recommendations are accepted, form the basis of the resulting Cabinet minute recording the outcome.”[16]
[16] Exhibit 6, Annexure B at [1.2], 3
Audio/visual presentations to Cabinet
Attachment 6 to the Drafter’s Guide sets out the procedures that a Minister must follow when wishing to make an audio/visual presentation. The Minister wishing to make it must write to the Prime Minister for approval. In doing so, the Minister must set out the purpose of the presentation and the form it will take together with details of the persons and equipment required to make it.
Cabinet briefs to the Prime Minister
Ms Croke said that PM&C gives the Prime Minister Cabinet briefs in relation to matters that are listed for Cabinet’s consideration. They discuss the key issues as well as the comments or recommendations contained in a particular Ministerial submission. The Cabinet briefs are approved by the Secretary of PM&C or, if unavailable, by a Deputy Secretary. Since November 2004, a Cabinet brief is placed on the Cabinet file to which it relates. Copies are distributed electronically to those on a distribution list with the first numbered copy being placed in the Prime Minister’s brief and the eighth copy placed on the Cabinet file. The electronically distributed copies may vary slightly in their formatting from the original as well as in their distribution list or in the correction of typographical errors. There are no differences of substance between it and the original. It is the practice of the Prime Minister at the relevant time, the Hon John Howard MP, to take his Cabinet briefs into Cabinet meetings and to refer to them and/or to quote from them during Cabinet meetings.
Cabinet Notebooks
Ms Croke said that the system of noting Cabinet discussions and preparing Cabinet Minutes is the same as that described by the then Acting Director of the Cabinet Office, Ms Anthea Tinney, in 1990. Ms Tinney gave her evidence in an affidavit that was given for the purposes of proceedings in the case of The Commonwealth of Australia v Northern Land Council.[17] The High Court decided an appeal in that matter in 1993 and Toohey J quoted from Ms Tinney’s affidavit at length.[18]
[17] (1993) 176 CLR 604
[18] (1993) 176 CLR 604 at 624-627
Ms Croke said:
“Consistent with longstanding practice and in compliance with the guides for Cabinet notetakers issued from time to time by PM&C, Cabinet notetakers do not take notes verbatim of the discussions in the Cabinet room, but rather take notes for the sole purpose of ensuring there is sufficient record of decisions of the Cabinet on the matters discussed in order to prepare official Cabinet Minutes recording the decisions of the Cabinet. Therefore, Cabinet Notebooks are not a complete record of what was said in the Cabinet room. …”[19]
[19] Exhibit 6 at [14]
Policy advice by officers
[26 – 30] OMITTED FROM THIS COPY OF THE REASONS FOR THE FOLLOWING REASONS:
Section 58(5) of the FOI Act sets out the Tribunal’s role when a document is claimed to be exempt under s 36 and a certificate is in force under that section (conclusive certificate). Provided that the Tribunal is satisfied that a document is a document to which s 36(1)(a) applies, its role is limited to determining “… the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.
Section 58 C sets out the way in which the Tribunal must conduct proceedings when a conclusive certificate is in force. It must hold in private the hearing of any part of the proceeding during which evidence or information is given, or a document produced, by, among others, an agency, Minister, officer an agency or member of Ministerial staff. That is the effect of s 58C(2)(a)(i)-(iii). Section 58C(2)(v) goes on to provide that the Tribunal must also hold a private hearing when a submission is made by or on behalf of the agency or Minister when, in the case of a certificate in force under s 36, a submission is made that the disclosure of the document would be contrary to the public interest.
Where the Tribunal holds a hearing in private in accordance with the requirements of s 58C(2), it may give directions as to those persons who may be present at the hearing (s 58C(3)(a)). I made orders of this sort. In broad terms, they permitted Mr McKinnon to be present as well as named officers and legal representatives of PM&C and DEWR, staff of Auscript (the recording and transcription service engaged by the Tribunal) and of the Tribunal where access is required to enable them to perform their duties.
The Tribunal’s power to order who may be present at the hearing is discretionary. It is given no discretion as to the publication of the evidence and material given at the hearing. Instead, s 58C(3) provides that the Tribunal shall give directions prohibiting the publication of any evidence or information given to the Tribunal, the contents of any documents lodged with, or received in evidence by, the Tribunal and any submissions made to it at the hearing.
As required by s 58C(3), I made directions limiting publication of evidence, affidavits and submissions regarding the question whether disclosure of the document would be contrary to the public interest. I limited their publication to named persons. They included Mr McKinnon, officers and legal representatives of PM&C and DEWR as well as staff of Auscript and of the Tribunal if access is required to enable them to perform their duties.
Paragraphs [26] – [30] of these reasons summarise evidence given in that part or those parts of the hearing that were held in private in accordance with s 58C(2). Under my direction, access to that evidence is limited to certain named persons but is not available to the public generally.
As this copy of my reasons may be read by anyone who wishes to do so, I have omitted the paragraphs that are subject to the directions I made under s 58C(3).
Consequences of disclosure on subsequent involvement of Departmental officers in providing policy advice
[31 – 52]OMITTED FROM THIS COPY OF THE REASONS FOR THE REASONS GIVEN AT [26 – 30] ABOVE
THE LEGAL FRAMEWORK
Overview of access provisions of the FOI Act
The right of access to documents given by the FOI Act is framed very carefully. It is set out in s 11, which provides:
“(1) Subject to this Act, every person has 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.
(2) Subject to this Act, a person’s right of access is not affected by:
(a)any reasons the person gives for seeking access; or
(b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.”
The opening words of s 11 of the FOI Act impose the first qualification to the right. They are that the right is “subject to this Act”. Qualifications of a procedural nature and others related to the work imposed on an agency or Minister by the request are found in Part III of the FOI Act. Other qualifications are concerned with 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”.[20] These are found in Part IV.
[20] s 3(1)(b)
In addition to these groups of qualifications, there are qualifications implicit in the words “document of an agency” and “exempt document”. The right of access is given to a “document of an agency” i.e. it is given to:
“… a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency.”[21]
As a Department, there is no question that PM&C is an agency[22] or that the material requested by Mr McKinnon is a document.[23]
[21] s 4(1)
[22] s 4(1)
[23] s 4(1)
The right of access created by s 11 of the FOI Act does not extend to an “exempt document”. That is, it does not extend to:
“(a) a document which, by virtue of a provision of Part IV, is an exempt document;
(b)a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act; or
(c)an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.”[24]
The two exemptions relied on by PM&C are ss 34 and 36.
[24] s 4(1)
Exemption provision: s 34
Section 34(1) provides:
“A document is an exempt document if it is:
(a)a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet.
(b)an official record of the Cabinet;
(c)a document that is a copy of, or a part of, or contain an extract from, a document referred to in paragraph (a) or (b); or
(d)a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.”
There then follows a qualification in certain cases in which the document requested contains factual information. It is found in s 34(1A) which provides that s 34:
“… does not apply to a document (in this subsection referred to as a relevant document) that is referred to in paragraph (1)(a), or that is referred to in paragraph (1)(b) or (c) and is a copy of, or of part of, or contains an extract from, a document that is referred to in paragraph (1)(a), to the extent that the relevant document contains purely factual material unless:
(a)the disclosure under this Act of that document would involve the disclosure of any deliberation or decision of the Cabinet; and
(b)the fact of that deliberation or decision has not been officially published.”
Exemption provision: s 36 – its general scope and exceptions
Section 36 is concerned with what are described as “internal working documents”. These are described in s 36(1), which sets out the two characteristics that must be possessed by a document before it will be regarded as exempt:
“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 functions of an agency or Minister or of the Government of the Commonwealth; and
(b)would be contrary to the public interest.”
Again there are exceptions to the exemption. The first is that s 34 does not apply to “… matter that is used or to be used for the purpose of the making decisions or recommendations referred to in s 9(1)” i.e. decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency with respect to rights, privileges or benefits, or to obligations, penalties or other detriments to which persons are or may be entitled or subject. The exception is found in s 36(2).
A second exception is found in s 36(6) when it provides that:
“This section does not apply to:
(a)reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
(b)reports of a prescribed body or organization established within an agency; or
(c)the record of or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.”
Section 36(5) sets out the final exemption. It provides that s 36 “… does not apply to a document by reason only of purely factual material contained in the document.” This provision requires two issues to be considered. The first is what is meant by the expression “purely factual material” and whether the document contains purely factual material? The second is to focus on whether disclosure of that purely factual material will lead to the consequences described in s 36(1). That follows from the limited exclusion given by s 36(5) to a document that contains purely factual material. I will return to that below.
The expression “purely factual material” was considered by Deputy President Todd in Re Waterford and Treasurer of the Commonwealth (No 1).[25] He concluded “… that to be described as ‘factual’ the material must be ‘factual’ in fairly unambiguous terms. …”[26] 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’ …”.[27] 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 …”[28] 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.
[25] (1984) 6 ALN N347
[26] (1984) 6 ALN N347 at N349
[27] (1984) 6 ALN N347 at N349
[28] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
The distinction was drawn by the Full Court of the Federal Court in Harris v Australian Broadcasting Commission:[29]
“ 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.”[30]
[29] (1983) 51 ALR 581, Bowen CJ, St John and Fisher JJ
[30] (1983) 51 ALR 581 at 586
The fact that passages are introduced with words such as “I find”, “I am of the opinion”, “I am inclined to the view” or even “I recommend” does not of itself necessarily render the material that follows something in the nature of an opinion or recommendation rather than factual material. Regard must be had to the context as “… a provision such as s 36 of the Freedom of Information Act is to be applied according to commonsense and the substance of the matter and not as an exercise in semasiology.”[31]
[31] (1983) 51 ALR 581 at 587
The fact that a document contains “purely factual material” does not mean that the document is necessarily excluded from the operation of s 36. Regard must be had to the whole of s 36(5). The section does not apply to a document “by reason only” of purely factual material contained in the document.[32] That does not mean that, in every instance, a document that contains purely factual material does not come within the purview of s 36. Whether a document containing purely factual material is, or is not, within the scope of s 36 depends upon whether disclosure of that material would disclose the matters described in s 36(1) and disclosure under the FOI Act would be contrary to the public interest. This interpretation is consistent with the passage from the report prepared by the inter-departmental committee on freedom of information in 1976 when it discussed what became s 36:
“We should say something about documents that ought not to be protected under the exemption considered in this Section:
∙It should not extend to material of a purely factual character, except to the extent that the selection or presentation of factual material may itself be part of the deliberative process.”[33]
[32] Purely factual material may be exempt under provisions of the FOI Act other than s 36.
[33] Policy Proposals for Freedom of Information Legislation (AGPS, 1976) at [10.13]
In Re Swiss Aluminium and Department of Trade,[34] the Tribunal took a slightly different approach to the application of s 36(5) of the FOI Act. Rather than focusing on the words “by reason of” to draw attention back to the effect of disclosure described in s 36(1)(a), it appears to have relied on the word “purely” to do that work:
“… We have examined the remainder of the subject documents with care. Some of the information contained is of a purely factual nature but, in each case, it seems to us that such information is information relating to the activities of competitors of Austrawiss and is information which has been conveyed in confidence to the respondent by the companies to which the information relates. The documents contain other information of a factual nature, but it is not information of a ‘purely factual’ nature. That material would reveal deliberation that has taken place in the course of the deliberative processes involved in the functions of the respondent. As was said in Re McDonald Pty Ltd and Department of Territories and Local Government (1985) 9 ALD 236 [by Davies J, President, Senior Member Balmford and Dr Craik, Member]: ‘The material omitted from this document is of a factual nature but s 36(5), which restricts the ambit of the exemption, uses the expression ‘by reason only’. The sub-section does not require factual material to be disclosed if that material has a quality relevant to the FOI Act, such as confidentiality, which would make its disclosure contrary to the public interest.’ …”[35]
[34] (1985) 9 ALD 243, Davies J, President, and Mr RA Sinclair and Dr AP Renouf, Members
[35] (1985) 9 ALD 243 at 248-249
Despite the reference to Re McDonald, this passage appears to give the word “purely” the work that I consider is done by the expression “by reason of”. No reference is made in the passage to the discussion of the Full Court in Harris which seems, to my mind, to analyse what is “purely factual material” by reference to what it is i.e. factual material as opposed to material such as opinion, advice or recommendation rather than by reference to what it might reveal (e.g. a deliberative process).
In Re Chapman and Minister for Aboriginal & Torres Strait Islander Affairs,[36] Deputy President McDonald touched on the difficulties that can arise in characterising whether purely factual material would disclose matter of the sort described in s 36(1)(a):
“The line between statements of fact which can stand alone, and are able to be released under the provisions of the FOI Act, and those which are so close to the deliberative process that they form part of it, will often be difficult for the decision-maker to ascertain. It is hard to conceive a set of applicable administrative guidelines to assist in resolving the dilemma presented by the inter-relationship of the two subsections. What can be said however, is that the issue may not be able to be determined by reference only to the content of the document because of the requirement that the decision-maker must look also to the context which forms part of the deliberative or consultative process. Having regard to that, each case will need to be determined according to its own particular circumstances.”[37]
[36] (1996) 43 ALD 139
[37] (1996) 43 ALD 139 at 150-151 [22]
Exemption provision: s 36 – McKinnon regarding “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.
In McKinnon v Secretary, Department of the Treasury (McKinnon),[38] the High Court was concerned with a conclusive certificate 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). Those documents can be broadly described as reports, reviews or evaluations completed in the year between December 2001 and December 2002 and detailing the extent of bracket creep and its impact on revenue collection of income tax and information in relation to higher taxation burdens faced by Australians. Although focused in the main on the conclusive certificate and the Tribunal’s task, some mention was made of the general notions of public interest. Those in the minority on the final result, 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)).”[39]
[38] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
[39] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 428; 189; 518 [5]
Hayne J, who was one of the majority, 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 …[[40]]:
‘[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 of the legislature could have had in view” …[[41]].
That is why a question about ‘the public interest’ will seldom be properly seen as having only one dimension.”[42]
[40] (1989) 168 CLR 210 at 216
[41] Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J
[42] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 443-444; 202; 531[55]
The other two judges forming the majority, Callinan and Heydon JJ,
took a different view of 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.”[43]
[43] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 468; 221-222; 550-551 [130]
In discussing the role of the Tribunal under s 58(5) of the FOI Act, Gleeson CJ and Kirby J appear to speak more broadly of public interest:
“… If it were enough for the minister to point to one facet of the public interest that is served by non-disclosure, then it would be enough to say that non-disclosure preserves confidentiality. Of course it does. By definition, a facet is one side of something that has many sides. Looking only at a facet of an object is a necessarily incomplete way of looking at the object. Looking only at a facet of the public interest is a necessarily incomplete way of looking at the public interest.”[44]
[44] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 432; 192; 521[16]
Their Honours considered each of the grounds set out in the Minister’s conclusive certificate. They did so in the context of the evidence presented in the case and in the context of whether the Minister’s reasons given in his conclusive certificate for not disclosing documents were reasonable. Arguably, their Honours’ comments may be relevant in the broader context of an exploration of the scope of public interest generally and of the occasions on which disclosure or non-disclosure of a document may be considered as being contrary to the public interest in a consideration under s 36(1)(b). It must be emphasised, however, that their Honours did not consider the scope of s 36(1)(b) and so did not consider whether it requires a balancing of facets of the public interest, if there be any, or whether it is to be determined by reference to another test.
Before looking at the categories of public interest discussed by Callinan and Heydon JJ, I will consider for a moment what is meant by “balancing”. It was explained by Gleeson CJ and Kirby J:
“… 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, or 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 the 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. …”[45]
[45] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 433; 193; 522 [19]
Callinan and Heydon JJ considered the following categories, or perhaps facets, of public interest. They said:
“ … The reference to ‘ongoing sensitivity’ in the first place is not entirely clear. We would be inclined ourselves to think that the 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 ‘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 a matter upon which a minister’s opinion and experience are likely to be 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 the 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.[[46]]
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 we would not 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.”[47]
[46] “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
[47] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 466-467; 220-221; 549-550 [120]-[128]
The discussion by Callinan and Heydon JJ of the seventh ground needs to be read with their observations regarding their third ground. It would seem to be consistent with other observations they made earlier in their judgment regarding the opinion evidence given by Mr Rose, to whom I will refer shortly, [48] and Professor Peter Dixon, who is an applied economist. Mr Rose had expressed an opinion that disclosure of documents that were provisional in nature or that were superseded would make a very useful contribution to the public debate. Callinan and Heydon JJ said:
“… Contrary to Mr Rose’s opinion that the exposure of these would make ‘a very useful contribution to the public debate’, in our opinion documents of that kind are more likely to mislead or confuse, or to make no contribution to any useful, or currently relevant debate.
Some of Professor Dixon’s evidence made the point, incontestable we think, that the topics were of public interest, as to the way in which, for example, ‘bracket creep’ adversely affected many taxpayers. But a distinction that he too did not make in his evidence was the distinction between provisional or superseded documents, and current ones. The former could do little to advance the analyses which Professor Dixon and other economists would wish to do, of ‘the Treasury’s apparent concern with the number of people who move from one tax bracket to another in any given year’.”[49]
[48] See [92-93] below
[49] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 465; 219; 548 [116]-[117]
Hayne J also appears to support the proposition that there could, on the evidence in that case, be a public interest in refusing disclosure of documents in circumstances where they would be likely to mislead. He said:
“… In the case of those particular documents, the relevant grounds for the claim were grounds asserting that release of the material shown in the documents had ‘the potential to lead to confusion and to mislead the public’. The appellant did not assert that this could not constitute a reasonable ground for the claim that had been made.”[50]
[50] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 448; 206; 535 [70]
Exemption provision: s 36 – McKinnon regarding a conclusive certificate
In this case, conclusive certificates have been issued so that each document is subject to one or other of them. A conclusive certificate is provided for in s 36(3):
“Where a minister is satisfied, in relation to a document to which paragraph (1)(a) applies, that the disclosure of the document would be contrary to the public interest, he or she may sign a certificate to that effect (specifying the ground of public interest in relation to which the certificate is given) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the disclosure of that document would be contrary to the public interest.”
Such a certificate cannot establish conclusively that a whole document is exempt if the Minister is satisfied that only part of the document is exempt. Section 36(4) provides:
“Where a Minister is satisfied as mentioned in subsection (3) by reason only of matter contained in a particular part or particular parts of a document, a certificate under that subsection in respect of the document shall identify that part or those parts of the document as containing the matter by reason of which the certificate is given.”
The first thing to notice about ss 36(3) and (4) is that they apply only to the second of the two characteristics that a document must possess before it is exempt under s 36. This means that, even if there is a conclusive certificate, it is essential to look first to whether the document comes within s 36(1)(a). If it does not, the document cannot be exempt regardless of the existence of the conclusive certificate which relates only to the second characteristic set out in s 36(1)(b).
Section 58(3) is concerned with the role of the Tribunal once a conclusive certificate has been issued:
“Where there is in force in respect of a document a certificate under section … 36,, the powers of the Tribunal do not extend to reviewing the decision to give the certificate, but the Tribunal, constituted in accordance with section 58B, may determine such question in relation to that certificate as is provided for in … subsection… (5) … in relation to that certificate.”
Section 58(5) goes on to provide:
“Where application is or has been made to the Tribunal for the review of a decision refusing to grant access to a document in accordance with a request, being a document that is claimed to be an exempt document under section 36 and in respect of which a certificate is in force under that section, the Tribunal shall, in a case where it is satisfied that the document is a document to which paragraph 36(1)(a) applies, if the applicant so requests, determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.”
While Gleeson CJ and Kirby J dissented from the majority in McKinnon regarding whether the Tribunal had been entitled to hold that reasonable grounds existed for the claims in the Minister’s certificates, all agreed that s 58(5) does not leave any room for the Tribunal to engage in full merits review in the face of a conclusive certificate.
The remaining aspects of their Honours’ judgments need to be read in light of the judgments of the majority in the Full Court of the Federal Court below. The ground on which the majority decided the point in the Federal Court appears from the judgment of Gleeson CJ and Kirby J. They began with the judgment of
Tamberlin J before moving to that of the other member of the majority; Jacobson J. Tamberlin J:
“…said:
“[O]ne example of a facet of the public interest that is relevant is the desirability of preserving confidentiality of intra-governmental communications prior to making a decision. Another, and obviously competing, facet of the public interest is the desirability of transparency in public administration. If there is a ground that is not irrational, absurd or ridiculous for a claim that the first-mentioned facet of the public interest would not be served by disclosure, then that alone is sufficient to satisfy the requirements of s 58(5). It is not necessary in order to decide that limited question that the decision-maker should consider and weigh all the other facets, and the grounds which may reasonably support each of those facets, in order for s 58(5) to be satisfied.”
The other member of the majority in the Full Court, Jacobson J, did
not put the point quite so directly, but he also considered and rejected
an argument that… ‘the question of whether something is contrary to the
public interest involves a consideration of factors on the other side of the ledger.’” [51]
[51] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 432; 192; 521 [14] per Gleeson and Kirby J; 443; 202; 531[54] per Hayne J; and 468; 222; 551 [131] per Callinan and Heydon JJ
The task that the Tribunal must undertake, as opposed that which it must not, was described a little differently in each of the three judgments given by the High Court. I will first attempt to set out the broad approach adopted by each beginning with the judgments of the majority:
Hayne J
“… [I]t may be accepted that there may be (and very often will be) competing considerations that are relevant to what I have called the statutory questions posed by s 58(5). The tribunal’s task is not to be confined to examining those considerations separately. In particular, it is not to be confined to deciding whether one of the considerations advanced in support of a claim, that a document or documents should not be disclosed, can be seen to be based in reason. Rather, the tribunal’s task is to decide whether the conclusion expressed in the certificate (that disclosure of particular documents would be contrary to the public interest) can be supported by logical arguments which, taken together, are reasonably open to be adopted and which, if adopted, would support the conclusion expressed in the certificate. The focus of the tribunal must be upon the grounds for the conclusion. Are those grounds ‘reasonable grounds’?
Of course that is a matter for judgment, not calculation or observation. …”[52]
[52] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 444; 202-203; 531-532 [56]-[57]
“… But the question presented by s 58(5) makes no reference to the state of mind of any person. It asks whether there exist reasonable grounds for a claim that has been made. And it may seriously be doubted that the understanding of the tribunal’s task is assisted by injecting notions of persuasion or satisfaction of the kind which George v Rockett[[53]] was concerned. Such notions may be unhelpful in this context because they all too readily may be understood as requiring the tribunal to make its own assessment of where the public interest lies. That is not what s 58(5) permits or requires. …”[54]
[53] (1999) 170 CLR 104; 93 ALR 483
[54] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 445; 203; 532 [59]
“ Of course the tribunal must decide any relevant questions of fact that are tendered for decision in the matter before it. And, if opinion evidence is given, the tribunal may find it necessary or desirable to decide what, if any, of that evidence it accepts. But it by no means follows that, by tendering evidence of opinion about what is or is not in the public interest, a party may require the tribunal to decide what view of the public interest is to be preferred. That is not the question that the Act presents for the tribunal.”[55]
[55] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 446; 204-205; 533-534 [65]
Callinan and Heydon JJ
“… The Act provides no mandate for any balancing exercise. To have regard to extraneous matters such as other competing reasons, if the requisite statutory reason for non-disclosure has been demonstrated, gives rise to a risk that a de facto balancing act will take place.”[56]
[56] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 467; 221; 550 [129]
“… We would prefer to ask the question in terms of the language of the legislation itself, rather than any adaptation of it, because the former is perfectly clear in asking whether there exist reasonable grounds for the claim that the disclosure of the documents would be contrary to the public interest. … [I]f one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will go beyond review. It is important to notice that the statutory language does not give an entitlement to access if there are, as there may very well be, reasonable grounds for the revelation of the document in the public interest. It further follows that the tribunal is not obliged to undertake a balancing exercise of the kind the appellant submits it was bound to do. The role of the tribunal in the circumstances of, and on the basis of the statutory language governing this case, is not to undertake a full merits review of the kind contemplated by s 43(1) of the AAT Act. …”[57]
[57] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 468; 222; 551[131]
Gleeson CJ and Kirby J
“ Logically, the view of the majority in the Full Court appears to mean that, so long as there is anything relevant to be said in support of the view that disclosure would be contrary to the public interest, an applicant for review under s 58(5) must fail. We cannot accept that. …”[58]
[58] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 431-432; 192; 521 [16]
“… The tribunal does not ask itself whether, on the evidence before it, the tribunal is satisfied that the disclosure of the document would be contrary to the public interest. The question that, by s 58(5), is raised for the tribunal’s decision is a related, but different, question. It is ‘whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.’
Thus, in relation to internal working documents of the kind described in s 36(1)(a), it is for the minister to decide the question of public interest raised by s 36(1)(b) and (3), and it is the minister’s state of satisfaction on that issue that determines whether the document is exempt from disclosure. There is no provision for full merits review of that decision by the tribunal. The tribunal’s review function, in such a case, is limited to determining whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.”[59]
[59] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 429; 189-190; 518-519 [7-8]
“ To decide whether it was reasonably open to a decision-maker, on the evidence, to make a judgment such as a decision … whether there are reasonable grounds for a claim that a course of action (such as disclosure of a document) would be contrary to the public interest, involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue in question. A judgment as to whether information or argument bears rationally upon a question is also a familiar exercise. It is usually discussed by courts under the rubric of relevance … If a piece of information, or an opinion, or an argument, can have no rational bearing upon a question for decision, it is irrelevant, and must be left out of further consideration. Otherwise, being relevant, just a decision-maker requires that it be taken into account.”[60]
“ Where a claim, or an argument, or a conclusion of some other state of mind (such as suspicion, or belief, or satisfaction) involves an interplay of observation (of objective facts and circumstances), opinion, and judgment (which may involve an evaluation of matters such as reasonableness of conduct, or of the public interest), the question whether there are reasonable grounds for such a claim, or argument, or state of mind requires a consideration of all relevant matters and an assessment of the reasonableness of the claim, or argument, or state of mind having regard to all relevant considerations. … Until all relevant considerations, that is, all (known) considerations that could have a rational bearing upon the claim, or state of mind, or decision under review, are taken into account, it is impossible to form a just and fair judgment whether, objectively considered, there are reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest. It is not enough for the tribunal to ask whether there are facts, or opinions, or arguments that rationally bear upon that topic. All relevant matters must be taken into account; not for the purpose of deciding whether the tribunal agrees with the minister, but for the more limited purpose of deciding whether there are reasonable grounds for the claim which the minister accepted.”[61]
“… The task of the tribunal is not performed if, looking at a particular proposition, it says: ‘Other things being equal, that would be sufficient to induce in the mind of a reasonable minister this state of mind.’ The tribunal must look at, and take account of, any other relevant considerations as well. … [W]hen s 58(5) refers to ‘reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest’ it raises the question whether, having regard to all the relevant considerations available to the tribunal, there are matters that are sufficient to induce in a reasonable person a state of satisfaction that the disclosure of a document would be contrary to the public interest. The expression ‘reasonable grounds for the claim’ means reasonable grounds for contending that the minister should be so satisfied. That is the nature of the claim. The ground or grounds specified by the minister as the basis of his or her satisfaction must, of course, be relevant to the conclusion reached by the minister. …”[62]
[60] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 430; 190-191; 519-520 [11]
[61] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 430-431; 191; 520 [12]
[62] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 431; 191-192; 520 [13]
What is the material to which the Tribunal may have regard in undertaking its task? Callinan and Heydon JJ found much of the evidence of one witness to be “argumentative rather than factually probative”.[63] They were critical of another witness, Mr Stutchbury, who:
“… as experienced as he was, both in his affidavit which tended to rehearse the appellant’s arguments rather than state relevant facts, and in cross-examination, failed to make the important distinction between a topic of public interest and documents on or in relation to the topic. It could hardly be denied that the topics with which the documents in issue are concerned were matters of public interest. That does not mean that every document generated by, or everywhere in the deep recesses of, the Executive, concerning these topics is valuable, useful, or necessarily one in respect of which there existed no reasonable grounds or bases for non-disclosure in the public interest: or, although this is not the statutory test, to put the matter another way, that the public interest necessarily, or even on balance, required that they be disclosed.
… Mr Stutchbury’s evidence did not take due account of the distinction between the topics, undoubtedly ones of public interest, and the direct relevance, currency, and varying significance and importance of the documents that might have been brought into existence about them.”[64]
[63] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 464; 219; 548 [115] and [118]
[64] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 463-464; 218; 547 [113]-[114]
In effect, the point made by Callinan and Heydon JJ in this passage regarding Mr Stutchbury’s evidence was repeated in their judgment regarding the evidence of Mr Harris. In their view, Mr Harris’s evidence could not be questioned in so far as it dealt with bracket creep. It is implicit in their judgment that they saw Mr Harris’s evidence as focused on the subject generally and not directed to the documents that were the subject of the conclusive certificate. Callinan and Heydon JJ also observed that it is not “… relevant to the controversy to point out that perhaps some of the documents could lawfully be revealed by the Auditor-General. Rather the contrary is the case. That they arguably could, merely demonstrates that the machinery of government is subject to another valuable check or balance …”.[65]
[65] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 465; 219; 548 [118]
Hayne J focused on the need for evidence and relevant opinion rather than material that is in the nature of argument or comment.[66] As to what opinion can relate to may need to be considered in light of the observations made by Callinan and Heydon JJ regarding the opinions expressed by Mr Alan Rose. Mr Rose is a former Secretary of the Attorney-General’s Department and President of the Australian Law Reform Commission. Their Honours said:
“ Deference should be accorded to Mr Rose’s informed opinion. However, the opinion just quoted is a very far-reaching opinion relating to the state of mind of others. One must question his, indeed anyone’s, ability to express an opinion of that kind. We would, for ourselves, have given it little weight, as we would his rejection of other grounds relied upon by the respondent based upon his own personal experience. …”[67]
[66] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 439-440; 198-199; 527-528 [42] and [44]
[67] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 465; 219; 548 [116]
Lest it be thought that they found any room for expert opinion evidence regarding the public interest, Callinan and Heydon JJ said:
“… In this area, in any event, the opinions of witnesses on either side purporting to reveal and express the states of mind and attitude of others on other occasions will rarely be very helpful and practically never determinative. The role of the tribunal will usually be best performed simply by examining the documents with a view to assessing whether the stated grounds of conclusiveness satisfy the statutory test. That is because, as here, it will usually be possible readily to characterise the topics in question as topics of public interest without the need for any, or any extensive expert evidence to that effect. The real issue will almost invariably then be whether the document in question, having regard to its date, its author, the position of its author, and its contents, is one in respect of which the minister can hold the requisite opinion. The Act provides no mandate for any balancing exercise. To have regard to extraneous matters such as other competing reasons, if the requisite statutory reason for non-disclosure has been demonstrated, gives rise to a risk that a de facto balancing act will take place.”[68]
[68] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 467; 221; 550 [129]
It is clear from the passages I have set out that, from the point of view of Callinan and Heydon JJ, the Tribunal need only determine that there exists one reasonable ground for the claim that the disclosure of the document would be contrary to the public interest. That accords with their view that s 58(5) does not permit the Tribunal to engage in a balancing exercise but does it mean that Callinan and Heydon JJ would adopt the view of s 58(5) adopted by Tamberlin and Jacobson JJ in the Federal Court and summarised by Gleeson CJ and Kirby J? I think not.
Callinan and Heydon JJ do not frame their reasons in terms of relevance. Instead, they place a great deal of emphasis upon stating that the issue must be decided in the terms used by Parliament in s 58(5). Those terms require the Tribunal to consider whether there exist reasonable grounds for the claim and it is enough that there is one reasonable ground. A requirement that there be a reasonable ground is quite different from saying that anything relevant in support of the ground is enough. I note that Callinan and Heydon JJ did not have quite the same understanding of the position taken by Tamberlin and Jacobson JJ. Their
understanding was again underpinned by a notion of reasonableness. It was that:
“… the majority in the Full Court effectively held, that if one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will go beyond review. …”[69]
[69] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 468; 222; 551[131]
Callinan and Heydon JJ do not analyse what is meant by a reasonable ground. It is clear from their discussion of absurd and non-absurd reasons, though, that they expect there to be some analysis of the documents and matters relevant to the documents in order for the Tribunal to determine whether the “… minister can hold the requisite opinion.”[70] That analysis would seem to go beyond an analysis directed simply to whether anything relevant is to be said in support of the view that disclosure would be contrary to the public interest. That it does so would seem to be supported by the conclusion reached by Callinan and Heydon JJ that the “… test actually posed by the tribunal, however, was certainly, on no view, less advantageous to the appellant than the statutory language prescribes. …”[71] Their understanding of the Tribunal’s decision was that “… it sufficed for the treasurer to show that the claim, meaning thereby, we think, the grounds for the claim, was not an irrational one...”[72] A conclusion that the grounds for a claim are not irrational can only be reached after an analysis of all relevant circumstances. It differs from a conclusion that there is something relevant to support the view for such a conclusion does not require any consideration to be given to whether there is other relevant material.
[70] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 467; 221; 550 [129]
[71] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 468; 221-222; 551 [130]
[72] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 453; 210; 539 [85]
This ground is the same as the written analysis ground in the first certificate. For the reasons that I have already given, I conclude that this is not a reasonable ground for the claim that disclosure would be contrary to the public interest.
Documents 14 to 18: second certificate and the inhibition ground
In part, this ground is the same as the Cabinet and inhibition ground in the first certificate. It also has elements of the apolitical public service ground, the frankness and understanding ground, the senior officers’ opinions ground and the written analysis ground. I have concluded that there is no reasonable ground for the claim made in each of them that disclosure of documents 1 to 13 D would be contrary to the public interest. My reasoning is equally applicable to the inhibition ground and it raises no other issues. Therefore, I have concluded that there is no reasonable ground for the claim in the inhibition ground that disclosure of documents 14 to 18 would be contrary to the public interest.
Documents 14 to 18: second certificate and the discounted options ground
For the reasons that I gave in relation to the discounted options ground claimed in the first certificate, I have concluded that it is a reasonable ground for the claim that disclosure of documents 14 to 18 would be contrary to the public interest.
Documents 14 to 18: second certificate and the Cabinet confidentiality ground
This ground is closely related to the Cabinet-related ground and the Cabinet and inhibition ground in the first certificate. For the reasons I gave in relation to them, I do not accept this as a reasonable ground for the claim that disclosure of documents 14 to 16 would be contrary to the public interest. If disclosure of the documents would involve the disclosure of any deliberation or decision of Cabinet, they would be exempt under s 34 as they would come within s 34(1)(d). The fact that the claim is not made on that basis suggests strongly that they do not. To be fair to the claim, it is not made on the basis that disclosure would have this effect; only that they “indicate” the content of Cabinet deliberations. The evidence does not reveal how this indication is given or how the confidentiality of Cabinet deliberations would be compromised by disclosure of documents 14 to 16. Those documents appear to pre-date the preparation of the EWR Minister’s Cabinet submission and the material does not indicate a basis on which the later Cabinet deliberations could be ascertained by their disclosure.
Documents 17 and 18 are in a different position. They do refer either to a draft Cabinet submission or to proposals to be put to Cabinet by the EWR Minister. There content leads me to conclude that there is a reasonable ground to claim that their disclosure would be contrary to the public interest for it would be likely to compromise the confidentiality of Cabinet and the notion of collective responsibility.
Documents 14 to 18: second certificate and the senior officers’ opinions ground
For the reasons that I gave in relation to the ground claimed in the first certificate, I do not consider that there is any material that supports this ground and have concluded that it is not reasonable.
Documents 14 to 18: second certificate and the high level ground
This ground has some foundation in the reasons for decision of Davies J in Howard. He said that the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, then the more likely it will be that the communications should not be disclosed. Davies J did not say that communications between such persons on such matters will never be disclosed. He was speaking in the context of s 36(1)(b). That means that the content of the communications and their context, as well as the identity of those who took part in them, must be taken into account in order to decide whether release would be contrary to the public interest.
The claim is not framed in these terms. It relies simply on the level at which the recommendations were made and not to the effect of their disclosure. Without that further step, I do not have a basis on which I can consider whether there is a reasonable ground for the claim that disclosure of documents 14 to 18 would be contrary to the public interest. I could propose various bases for a claim that their release would be contrary to the public interest given the content of documents 14 to 18 and the seniority of those who were communicating and those who were receiving that information. Some of them, such as disclosure would inhibit the ability of APS officers to give full, frank and candid advice in the future, I have already rejected as a reasonable basis. Others I might not reject but it is not for me to formulate the basis of the claim that disclosure would be contrary to public interest. In view of that, I have concluded that there is no reasonable basis for the claim that disclosure of documents 14 to 18 would be contrary to the public interest on the high level ground.
Documents 20-21, 22-31, 32, 35, 37, 39-46, 48-52, 53-54 and 58: are they within the scope of s 36(1)(a)?
On the basis of the affidavit evidence of Mr Sedgley and Ms Croke and having regard to those parts of the documents disclosed to Mr McKinnon, I am satisfied that they can be described as follows:
Documents 20 and 21are unsigned copies of briefs prepared by senior PM&C officers for used by the Prime Minister in Cabinet. They discuss options contained in proposals put to Cabinet by the EWR Minister. Some aspects of the options have not been publicly revealed and some were implemented in an amended form.
Document 22 is a brief prepared by Dr Shergold setting out for the Prime Minister’s consideration a further option for reform of the workplace relations law. I accept that it has not been publicly revealed and that it was not implemented as part of the workplace reform legislation that was later enacted.
Documents 23, 24, 28, 29 and 30 are options papers entitled respectively: Option B; Option A; Option D; Option C and Agreed Proposal: Fair Pay Commission. They were prepared by DEWR in consultation with PM&C and Treasury and contained options for the EWR Minister and his staff to consider in relation to workplace relations reform. The options were variously used, not used or modified by the EWR Minister and his staff. The documents do not necessarily represent the substance of the options recommended by the EWR Minister to Cabinet.
Documents 25 and 26 are a brief and a draft of a brief to the Prime Minister by Dr Shergold. Document 25 analyses and comments upon the papers described as Option A, Option B, Option C and Option D being documents 24, 23, 29 and 28. Document 26 addresses a further compromise option taking the policy development in a slightly different direction.
Document 27 is an email dated 13 April 2005 from Mr Matthew Brzoska, an officer in the Economic Division of PM&C to another officer in that Division, Mr Robert Osmond. It covers an email from Mr Brzoska to Mr Paul Tilley on the same day. That second email contains an analysis of the potential effects of welfare to work and a stylised set of workplace relations reforms.
Document 31 is an undated text prepared by the Economic Division for possible inclusion in a brief from Dr Shergold to the Prime Minister. I accept Mr Sedgley’s estimate that it was prepared in approximately May 2005. The document was prepared as an aide-mémoire for Dr Shergold regarding those options for workplace relations reform preferred by PM&C and the EWR Minister. At the time, the subject of workplace relations was being considered by Cabinet.
Documents 32 and 37 are briefs prepared by Dr Shergold for the Prime Minister. One is dated 14 May 2005 and the other 13 July 2005. Both discuss options for reform and make recommendations to the Prime Minister. The earlier document, document 32, is focused on the unfair dismissal laws and the later, document 37, on the Australian Fair Pay Commission. Document 37 is a Minute from Dr Shergold to the Prime Minister dated 13 July 2005. It reflects the matters discussed by Cabinet at its meeting on 23 May 2005.
I find that document 35 is an unsigned copy of, but is otherwise identical to, document 53. Document 53 is a Cabinet brief to the Prime Minister prepared by Mr Sedgley, who was then the Acting Assistant Secretary of the TSWR Branch in PM&C. It is dated 8 July 2005 and contained advice to the Prime Minister for use in Cabinet when it considered the EWR Minister’s submission on 12 July 2005.
Document 40 is a copy of Document 39 except to the extent that it bears the additional words “Copy No. 8”. Document 39 is a brief dated 4 March 2005 to the Prime Minister by Mr Paul Tilley, who is the First Assistant Secretary, Economic Division, in PM&C. It contains advice to the Prime Minister for his use in Cabinet when it considered the EWR Minister’s submission on 7 March 2005.
Document 42 is a copy of Document 41 except to the extent that it bears the additional words “Copy No. 8”. Document 41 is a brief to the Prime Minister from Dr Shergold. It is dated 11 March 2005 and reflects matters discussed at the Cabinet meetings on 7 March 2005 and 15 March 2005.
Document 44 is a copy of Document 43 except to the extent that it bears the additional words “Copy No. 8”. Document 43 is a brief dated 18 March 2005 to the Prime Minister by Dr Shergold for his use in the Cabinet meeting of 30 March 2005.
Document 46 is a copy of Document 45 except to the extent that it bears the additional words “Copy No. 8”. Document 45 is a brief to the Prime Minister by Mr Tilley and is dated 29 March 2005. It summarises various options for workplace reform to be discussed by Cabinet on 30 March 2005.
Document 51 is a copy of Document 48 except to the extent that it bears the additional words “Copy No. 8”. Document 48 is a Cabinet brief to the Prime Minister from Mr Tilley dated 20 May 2005. It summarises key issues, comments and recommendations to the Prime Minister for use in Cabinet in relation to a letter and paper to be considered under-the-line in Cabinet on 23 May 2005.
Document 50 is a copy of Document 49 except to the extent that it bears the additional words “Copy No. 8”. Document 49 is a brief to the Prime Minister from Mr Tilley dated 19 May 2005. It was created for the preparation for and use during the Cabinet meeting on 23 May 2005.
Document 58 is a copy of Document 52 except to the extent that it bears the additional words “Copy No. 8”. Document 52 is a brief to the Prime Minister from Ms Jenny Goddard dated 18 February 2005. It was prepared for the purpose of the Prime Minister’s preparation for the Cabinet meeting on 22 February 2005 and for his use during it.
Document 54 is a copy of Document 53 except to the extent that it bears the additional words “Copy No. 8”. Document 53 is a Cabinet brief to the Prime Minister prepared by Mr Sedgley and dated 8 July 2005. It was for use when Cabinet discussed the EWR Minister’s submission on 12 July 2005.
For the reasons that I have given in relation to the documents 1 to 13D, I am satisfied that these documents also come within the scope of s 36(1)(a) and are not excluded by ss 36(2), (5) or (6). In summary, they have been prepared in the context of the development of the workplace relations legislation and are part of the “thinking” or deliberative processes that took place within PM&C. They record deliberations or opinions that have been prepared in the course of that process.
Documents 20-21, 22-31, 32, 35, 37, 39-46, 48-52, 53-54 and 58: the second certificate
The passages in these documents that have not been disclosed to
Mr McKinnon are the subject of the second certificate. I have already set out my conclusions regarding the grounds in the second certificate and will not repeat them. Two of them are applicable to these documents.
To the extent that they refer either to a draft Cabinet submission or to proposals to be put to Cabinet by the EWR Minister, there is a reasonable ground to claim that their disclosure would be contrary to the public interest. I have set out more detailed reasons above but, in summary, their disclosure would be likely to compromise the confidentiality of Cabinet and the notion of collective responsibility. That means that I find the Cabinet confidentiality ground in the second certificate made out in relation to documents 20, 21, 35, 37, 39 to 46, 48-54 and 58.
With regard to these documents and to documents 22 to 31 and 32, I find the discounted options ground of the second certificate made out. That ground is the same as that in the first certificate and my reasons are the same.
Document 56
Document 56 comprises the coordination comments made by PM&C to the EWR Minister’s submission to Cabinet dated 7 July 2005. I accept Ms Croke’s evidence that those comments were later incorporated in the Cabinet submission. Inclusion of coordination comments accords with normal practice. In view of that, that part of the document that records the coordination comments reproduced in the EWR Minister’s submission to Cabinet contains an extract from a document submitted to Cabinet. It is true that creation of document 56 necessarily preceded the Cabinet submission. I do not think, however, that this means that a passage in the earlier document cannot be regarded as an extract from the later document when the passage was drafted specifically to be included in that later document. In the circumstances, it is an extract from the EWR Minister’s submission and so exempt under s 34(1)(c).
In view of my conclusion, I do not need to consider the claim for exemption under s 36.
Documents 36, 38, 47 and 57
I have examined documents 36, 38, 47 and 57 as well as had regard to their description in Annexure D to Ms Croke’s affidavit. I am satisfied that document 36 is a document presented to Cabinet by the EWR Minister on 12 July 2005. Document 38 is the Cabinet Submission made by the EWR Minister in March 2005 regarding workplace relations reform. Document 47 is a letter from the EWR Minister dated 20 May 2005 for consideration under-the-line in Cabinet. Document 57 is a Cabinet Submission made by the EWR Minister regarding workplace relations reforms. It is dated 19 May 2005.
I am satisfied that documents 38, 47 and 57 come within the description of the documents set out in s 34(1)(a) of the FOI Act. They have each been submitted to Cabinet for its consideration and have been brought into existence for that purpose. It may be that document 36 is in the same category but whether it was brought into existence for Cabinet’s consideration is a matter that requires further thought. It may be that it was brought into existence to aid its consideration but not for its consideration. There is no need to consider this issue for it comes within the description in s 34(1)(d). Its disclosure would involve the disclosure of deliberations of Cabinet. It follows that document 37 as well as documents 38, 47 and 57 are exempt under s 34 of the FOI Act.
Documents 35, 53-54, 55 and 56: legal professional privilege
Mr Sedgley described documents 35, 53 and 54 in his affidavit. Document 35 is an unsigned copy of document 53 and the content of document 54 is identical to document 53. Only certain sentences of them are claimed to be exempt under s 42. Of them in relation to document 35, Mr Sedgley said:
“This exemption is claimed on the basis that these parts of document 53 contain summaries of legal advice obtained from the Australian Government Solicitor and would be privileged from production in legal proceedings on the grounds that those parts attract the protection of legal professional privilege. This privilege has not been waived. ”[141]
[141] Exhibit 5 at [72]
If a document is exempt under s 42, it must be “… of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege”. That requires me to have regard to what is meant by legal professional privilege. It is a rule of substantive law. A person may use it to:
“…resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.”[142]
[142] The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561 at 552; 564 [9]
It is essential that there be a relationship of client and legal adviser and that the communication be made within that relationship. As Lord Buckmaster said in Minter v Priest:[143]
[143] [1930] AC 558
“ The relationship of solicitor and client being once established, it is not a necessary conclusion that whatever conversation ensued was protected from disclosure. The conversation to secure this privilege must be such as, within very wide and generous ambit of interpretation, must be fairly referable to the relationship, but outside that boundary the mere fact that a person speaking is a solicitor, and the person to whom he speaks is his client affords no protection.”[144]
[144] [1930] AC 558 at 568
As Campbell J explained in Re Doran Constructions Pty Ltd (in liq):[145]
[145] (2001) 194 ALR 101
“In other words, the communication which is protected by the privilege must be one which is made or received by a lawyer in the capacity of lawyer: Alfred Crompton Amusement Machines Ltd v Custom and Excise Commissioners (No 2) [1972] 2 QB 102 at 129, 136, 138
…
While there is this distinction between the employment of the solicitor, and the character in which a communication is made, I do not accept that it requires that each individual sentence spoken in the course of a single meeting to be individually analysed. …”[146]
[146] (2001) 194 ALR 101 at 117
The reason for the rule was explained by Advocate General Sir Gordon Glynn:
“Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if the proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.”[147]
[147] AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705
The party claiming legal professional privilege must establish it on the balance of probabilities and may do so:
“… by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by reference to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.”[148]
[148] Grant v Downs (1976) 135 CLR 674; 11 ALR 577 per Stephen, Mason and Murphy JJ at 689; 589
As a rule of substantive law, it has application beyond legal proceedings.[149] It is not a rule that permits a court or Tribunal to weigh a person’s interest in resisting the production of the information or documents either against another’s interest in seeing that information or those documents or against a background of the behaviour of the person claiming legal professional privilege. If information or a document is subject to legal professional privilege, a court or Tribunal cannot order its production. The person claiming it may waive the privilege, either intentionally or by implication.[150] As Gibbs CJ said:
[149] Rich v Australian Securities and Investments Commission [2004] HCA 42 at [24] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ
[150] Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481 per Gibbs CJ and at 493 per Deane J
“… where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.”[151]
[151] Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481 per Gibbs CJ
It is the use that is made of the document by the person who is claiming legal professional privilege and notions of fairness that are relevant in deciding waiver. Except in one limited area, the authorities do not pay any regard to the person’s behaviour with regard to the other party in a proceeding or with regard to other matters. That limited exception arises in relation to communications in furtherance of a fraud or crime. Where the communications are of that nature, they do not attract legal professional privilege in the first place. It is not a case of legal professional privilege’s being waived.[152]
[152] Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 556 per McHugh J
Legal professional privilege may only be abrogated by the clear words of a statute or by necessary implication.[153] There is no suggestion that there has been any statutory abrogation in this case.
[153] The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561 at 553; 564 [11] per Gleeson CJ, Gaudron, Gummow and Hayne JJ
As a general proposition, legal professional privilege may be claimed in legal proceedings in relation to advice sought from and given by a lawyer employed by the government. It may be claimed provided the professional relationship between the lawyer and the government agency seeking advice has the necessary quality of independence. In Waterford v The Commonwealth of Australia,[154] the High Court considered the relationship of client and legal adviser in the context of correspondence passing between the Attorney-General and the Treasurer and between officers of the then Deputy Crown Solicitors’ office and officers of the Treasury. Mason and Wilson JJ held that:
[154] (1987) 163 CLR 54, Mason, Wilson and Brennan JJ and Deane and Dawson JJ dissenting
“… there is no reason to place legal officers in government employment outside the bounds of legal professional privilege. The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser. … To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment.”[155]
[155] (1987) 163 CLR 54 at 62
Brennan J was more circumscribed in his views and accepted only that officers of the Attorney-General’s Department or of the Commonwealth Crown Solicitor’s Office did not lack the independence that is essential if legal professional privilege is to attach to documents brought into existence for the purpose of their giving advice or for the purpose of obtaining advice from them.[156]
[156] (1987) 163 CLR 54 at 73
I have not been given a copy of document 35 but I do have a copy of documents 53 and 54. I have read them and and agree that they appear to contain summaries of legal advice received from the Australian Government Solicitor (AGS) regarding issues raised in the context of amendments to the workplace relations law.
I am satisfied that the AGS is a source of independent legal advice. It is established by Division 2 of Part VIIIB of the Judiciary Act 1903 (Judiciary Act).[157] Its functions include its providing legal services and related services to the Commonwealth.[158] The persons and bodies to whom AGS may provide its services include the Commonwealth, a Minister of the Commonwealth and an officer or person employed by the Commonwealth.[159] An employee of the AGS whose name is on a roll of barristers, solicitors or legal practitioners within the meaning of s 55D(1) of the Judiciary Act is an AGS lawyer.[160] An AGS lawyer acting in that capacity is entitled to everything necessary or convenient for that purpose.[161] Such a person is not subject to the subject to 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 provisions lead me to conclude that the AGS acts independently of its clients despite its status as a statutory authority of the Commonwealth and its client or clients being officers or Ministers of the Commonwealth.
[157] Judiciary Act, s 55J
[158] Judiciary Act, s 55K(a)
[159] Judiciary Act, ss 55N(1)(a), (c) and (e)
[160] Judiciary Act, s 55I
[161] Judiciary Act, s 55Q(1)(a)
Having regard to the contents of document 35, I am satisfied that the advice was provided by AGS or an AGS lawyer to an officer or officers of the Commonwealth, if not to a Minister, in its capacity of providing legal services or in the capacity of the AGS laywer of providing legal advice. There is nothing to suggest that the Commonwealth has waived the legal professional privilege. It follows that document 35, and so documents 53 and 54 are exempt from disclosure under s 42 of the FOI Act.
For the reasons I have given I affirm the decision under review.
I certify that the two hundred and twelve preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie
Signed: ...............................................................
Jayne Haydon Associate
Dates of Hearing 5-6 March 2007
Date of Decision 19 November 2007
For the applicant self represented
Counsel for the respondent Mr P Hanks QC with Ms F McKenzieSolicitor for the respondent Mr J Hyland
Australian Government Solicitor
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