Re Secretary, Department of Prime Minister and Cabinet and Wood & Anor
[2015] AATA 945
•8 December 2015
Wood; Secretary, Department of Prime Minister and Cabinet and (Freedom of information) [2015] AATA 945 (8 December 2015)
Division: GENERAL DIVISION
File Number: 2015/0230
Re:SECRETARY, DEPARTMENT OF PRIME MINISTER AND CABINET
APPLICANT
And:JOHN WOOD
RESPONDENT
And:ALLAN ASHER
OTHER PARTY
DECISION
TribunalDeputy President S A Forgie
Date8 December 2015
PlaceMelbourne
The Tribunal decides to:
affirm the decision of the Information Commissioner dated 19 December 2014.
……[sgd]…………….
Deputy President
CATCHWORDS – FREEDOM OF INFORMATION – Exemptions – deliberative processes – public interest – legal professional privilege decision affirmed.
LEGISLATION
Freedom of Information Act 1982; ss 3, 3A, 4(1), 8A, 11(1), 11(2), 11(5), 11(6), 11A(4), 11A(5), 11B, 31B, 42, 47C, 47E, 58(2), 93A, 93A(2)(b), 93A(2), 93A(3)
Freedom of Information Amendment (Reform) Act 2010; ss
Ombudsman Act 1976; ss 3(1), 5, 15 and 16
Public Service Act 1999; ss 10(4), 10(5), 13, 57(1), 57(2),
CASES
Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31
Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651
AWB Ltd v Cole [2006] FCA 571; (2006) 232 ALR 743; 91 ALD 741
AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46
Booker and Department of Social Security [1990] AATA 218
British Steel Corporation v Granada Television Ltd (1980) 3 WLR 780
Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88; (2008) 246 ALR 137
Candacal Pty Ltd v Industry Research and Development Board [2005] FCA 649; (2005) 223 ALR 284; 59 ATR 615
Johansen v City Mutual Life Assurance Society Ltd (1904) 2 CLR 186
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; 220 ALR 587; 88 ALD 12; 41 AAR 23
Commissioner Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400; 60 ALD 342
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561
Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335
Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468
Gray v Associated Book Publishers Pty Limited [2002] FCA 1045
Grofam Pty Ltd v ANZ Banking Group (1993) 45 FCR 445; 117 ALR 669
Harris v Australian Broadcasting Corporation and others [1983] FCA 242; (1983) 50 ALR 551; 5 ALD 545
Harris v Australian Broadcasting Corporation and Ors (1983) 51 ALR 581
Harris v Australian Broadcasting Corporation (No.2) [1983] FCA 281; (1983) 50 ALR 567; 78 FLR 264; 5 ALD 560
Kavvadias v Commonwealth Ombudsman (No 2) [1984] FCA 179; (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198
Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979 2 ALD 634
Re Francis and Minister for Immigration and Ethnic Affairs (No 2) [2012] AATA 838; (2012) 59 AAR 35
Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626; 3 AAR 169
Re James and Others and Australian National University (1984) 6 ALD 687
Re Murtagh and Commissioner of Taxation (1984) 54 ALR 313; 6 ALD 112
Re Philip Morris Limited and Prime Minister [2011] AATA 556; (2011) 122 ALD 619
Re Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson [2015] AATA 361
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128
Re Rovere and Secretary, Department of Education and Training [2015] AATA 462
Re Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson [2015] AATA 361
Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588
Re Waterford and Department of the Treasury [1985] AATA 114
Sankey v Whitlam (1978) 140 CLR 1
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347
OTHER MATERIAL
FOI Guidelines
REASONS FOR DECISION
The issue in this case arises out of a series of events beginning In May 2011 when the then Commonwealth Ombudsman, Mr Allan Asher, briefed Australian Greens Senator Sarah Hanson-Young on matters relating to his office and its resourcing and culminating in Mr Asher’s resignation from that position in October 2011. Whether Mr Wood, the respondent in these proceedings, should be granted access to certain parts of a Briefing Note is the issue. The Briefing Note was dated 4 October 2011 and given to the then Prime Minister, the Hon Julia Gillard MP. On 19 December 2014, the Freedom of Information Commissioner (FIC) decided that Mr Wood was entitled to access except for passages that he decided were exempt under s 42[1] of the Freedom of Information Act 1982 (FOI Act). The Secretary of the Department of Prime Minister and Cabinet (PM&C) applied to this Tribunal claiming that further parts are exempt when s 47C[2] of the FOI Act is read with s 11A. He maintained that those parts found by the FIC to be exempt under s 42 continue to be exempt. Mr Asher, who is a person affected by the decision, was joined as a party to the proceedings. I have decided to affirm the FIC’s decision.
[1] Section 42 exempts from access a document that would be privileged from production in legal proceedings on the ground of legal professional privilege.
[2] Section 47C exempts from access a document whose disclosure would disclose certain matters that have taken place in the deliberative processes involved in the functions of, among others, an agency or Minister.
BACKGROUND
On 27 May 2011, Senator Sarah Hanson-Young issued a Press Release stating that she had written to the Treasurer asking that he reconsider the allocation made to the Ombudsman, in his role as the Immigration Ombudsman, in the 2011-2012 Budget. She referred to evidence of the then Ombudsman, Mr Allan Asher, had given to a Senate Estimates Committee earlier that week that his office was then handling thousands of cases of asylum seekers who had been detained for periods of six months or longer. His office had not been given a corresponding increase in funding.[3]
[3] Exhibit A; Annexure EK1
In late September 2011, the Office of the Commonwealth Ombudsman (OCO) gave PM&C a copy of documents that it proposed to give to a Senate Committee in response to its question on notice. It did so because, among others, it has responsibility for dealing with matters arising under legislation administered by the Prime Minister. That responsibility is given under the Administrative Arrangements Order (AAO) which orders that the legislation administered by the Prime Minister includes the Ombudsman Act 1976 (Ombudsman Act). Within PM&C, policy responsibility for the Ombudsman Act was given to its Government Division.
The material provided by the OCO included draft questions on a range of issues related to the OCO. PM&C decided that it should brief the Prime Minister on the matters raised in the material and that it should do so urgently. Therefore, work began on the brief on the weekend of 1 and 2 October 2011 and continued until it was signed off by the Secretary of PM&C on 4 October 2011. Those working on the brief included Ms Philippa Lynch, the First Assistant Secretary of the Government Division in PM&C, and Dr Ian Watts, who was then the Secretary of PM&C.
On 13 October 2011, articles appeared in the media to the effect that Mr Asher had scripted questions for Senator Hanson-Young to ask him when he appeared before the Senate Estimates Committee in May 2011. The article stated that Senator Hanson-Young had not asked all of the scripted questions but that she had raised each of the issues that related to border security and that were of concern to Mr Asher.[4]
[4] Exhibit A; [8] and an article from The Australian at Annexure EK2
Mr Asher responded by releasing a statement on the same day. He began by explaining the independent role fulfilled by the Ombudsman and his having a key role in assuring Parliament and the public that government administration is fair, just and accountable. Despite that role and unlike the Auditor-General, the Ombudsman is not an Officer of the Parliament and, unlike Australian Commission for Law Enforcement Integrity, the Ombudsman does not report to a Parliamentary committee. Introduction of some form of accountability would provide both a mechanism for review of his work and a forum in which the Ombudsman could raise issues of concern without compromise to the independence of
the office.Mr Asher explained his dilemma further:
“In the last Budget, the Ombudsman’s office was given extra responsibilities in relation to immigration detention on Christmas Island but no additional funding. The Ombudsman raised with the Government his concerns about the situation on Christmas Island and the capacity of his office to take on additional work without extra funding, and the consequence for other areas of work for which he is responsible.
‘I expected to have the opportunity to raise these matters at the May 2011 Budget Estimates hearing, but was not called to appear,’ the Ombudsman said. ‘I then briefed Senator Sarah Hanson-Young about my immigration detention-related concerns and subsequently provided some possible questions to her office as a guide.
‘In the absence of another parliamentary committee, I chose this unorthodox approach to bring my concerns to the attention of the Parliament and the public. This was not a wise route to take,’ Mr Asher said.
‘However, the questions concerned administration of government policy and were not political in nature, as the answers I provided to the Committee clearly showed.’”[5]
[5] Exhibit A; Exhibit EK3
Later on 13 October 2011, the then Minister for Immigration, the Hon Chris Bowen MP was asked at a Joint Press Conference he held with the then Prime Minister, the Hon Julia Gillard MP, about his view of Mr Asher’s conduct. His response was that he thought:
“… integrity and openness and transparency are key values for the office of the Ombudsman, it’s up to the Ombudsman to explain how his conduct meets that criteria.”[6]
At the same press conference, Ms Gillard was asked a similar question as well as whether Mr Asher’s job was safe. She said that she had “… some concerns about his conduct, but there’s a set of proper processes and they need to be gone through.”[7]
[6] Exhibit A; Exhibit EK4 at 10
[7] Exhibit A; Exhibit EK4 at 8 and 9
A report in The Australian on the following day, 14 October 2011, reported that, through a spokesman, Ms Gillard:
“… had expressed concern to the head of her department, Ian Watt, about the impartiality and independence of the ombudsman’s office. ‘The secretary and the Ombudsman will meet over coming days, as part of the new secretary’s round of introductory meetings with heads of agencies in PM&C (Prime Minister and Cabinet) portfolio,’ the spokesman said.’[8]
The Coalition, then in Opposition, were reported on the ABC’s 7.30 Report aired on 20 October 2011 to sharing “the disquiet”. Ms Julie Bishop, described as the Coalition’s Deputy Leader, was said to be “… deeply concerned by this.” when asked whether Mr Asher should resign.[9]
[8] Exhibit A; Exhibit EK5 at 1
[9] Exhibit A; Exhibit EK5a at 2
In the same edition of the 7.30 Report, Mr Asher was reported as advising the Senate Estimates Committee that:
“In the May Budget estimates, I provided some suggested questions to Senator Sarah Hanson-Young. This was an error of judgment and it was a mistake and I wish to firstly apologise to the committee for that.”[10]
The following exchange took place between Senator John Faulkner and Mr Asher later in the proceedings of the Senate Estimates Committee:
“JOHN FAULKNER, LABOR SENATOR: Do you consider your actions have affected, impacted negatively the independence of the Ombudsman’s office?
ALLAN ASHER: No, I don’t believe it affects the independence in any way.
JOHN FAULKNER: Do you think it is essential that your office is seen to be above the political process? And above politics?
ALLAN ASHER: I think it certainly should be above politics.”[11]
[10] Exhibit A; Exhibit EK5a at 2
[11] Exhibit A; Exhibit EK5a at 3
On 20 October 2011, Mr Asher resigned as the Ombudsman. He issued a statement on that day saying, in part:
“‘It is sadness that I made the decision to tender my resignation,’ Mr Asher said, ‘but I have done so because I recognise that the Office of the Commonwealth Ombudsman’s enduring strength lies in community confidence in its integrity.
‘I have always acted in the interest of those I have served and to bring about meaningful, broad ranging and long-term reforms to public administration. However, I accept that my actions prior to the May 2011 Budget Estimates hearing caused many in the community and the Parliament to call into question the impartiality of my office.
‘I regret deeply that my office’s reputation may have been damaged by my actions and apologise sincerely to my staff and to our clients. However, I hope that some good will come of this incident by way of public discussions and debate about future funding and an appropriate accountability mechanism for the Commonwealth Ombudsman,’ he said.”[12]
[12] Exhibit A; Exhibit EK6
DOCUMENTS TO WHICH ACCESS GIVEN UNDER REQUEST
In response to Mr Wood’s request, the Secretary of PM&C has given access to the
following documents, which I will outline:
(1)Document entitled “Current and Emerging Issues for the Prime Minister 6 October 2011 B11/2608”. It was signed by Dr Watt and addressed to the Hon Julia Gillard MP. The passage to which access was given read:
“Ombudsman
On Tuesday (4 October) I provided you with an information brief (B11/2560) on documents provided by the Ombudsman to a Senate Estimate Committee, including what appear to be possible questions given to Senator Hanson-Young’s office shortly before the Ombudsman’s appearance at Estimates in May. I am meeting with the Ombudsman on 11 October to discuss relevant issues.
Since sending that brief, we have learned that the Ombudsman is co-hosting the launch on 12 October, at Parliament House, of a book on whistleblowing, together with Mr Oakeshott MP in his capacity as Chair of the JCPAA. I will discuss this too Mr Asher.”[13]
[13] Exhibit A; Exhibit EK0
(2)A minute from Dr Watt to the Prime Minister dated 11 October 2011. It attached legal advice that had been prepared by Mr Robert Orr QC, Chief General Counsel, Australian Government Solicitor. The first and third paragraphs have been redacted on the basis that they are exempt under s 42 of the FOI Act.
(3)A document headed “SMOS for the PS&I QUESTION TIME BRIEF” was last updated on 12 October 2011 and is the third document to which PM&C has given access. The issue that was the subject of the document was the evidence given to the Senate Committees by the OCO indicating that there had been a range of dealings with her office. The document set out a Headline Statement and Key Talking Points. It did the same for the second issue regarding what the government proposed to do about the Ombudsman’s actions.
(4)Access was granted to an amended version of the Brief. That version was dated 13 October 2011.
(5)A document entitled “Commonwealth Ombudsman” dated 14 October 2011. It dealt with the subject of whether the Ombudsman had sufficient resources to carry out his role.
(6)Brief Number N-8 is headed “Commonwealth Ombudsman” and dated 17 October 2011. It deals with the role of the Ombudsman, the Ombudsman’s resources, the role of PM&C in overseeing the Ombudsman’s work, the Prime Minister’s concern about the Ombudsman’s impartiality and independence and a meeting between Mr Watt and Mr Asher. Some parts of the passages are redacted.
(7)Ms Philippa Lynch, the First Assistant Secretary, Government Division in PM&C, wrote a record of the conversation between Mr Asher and Dr Watt on 18 October 2011. Issues dealt with at the meeting included the importance of there being strong and independent integrity agencies, such as the Ombudsman, for government and for the Australian Public Service, the resourcing of the OCO, the lines of communication available to the OCO in relation to funding issues, models of accountability for integrity agencies and the importance of rebuilding relationships with the government, Parliament, departments and agencies.
DOCUMENT IN ISSUE
Only one document remains in issue among the parties. It is Document 1 described as a Ministerial Brief dated 4 October 2011. It is seven pages in length, signed by IJ Watt addressed to the Prime Minister and its author is shown as IJ Watt. Under the FOI Act, PM&C has given access to portions of the document but has not done so in relation to those which it claimed to be exempt under s 42, on the basis that they would be privileged from production in legal proceedings, and in relation to those it claimed to be exempt under s 47C.
In light of the evidence of Ms Elizabeth Kelly[14] and from my examination of Document 1, I find that it is typical of briefs given by Commonwealth Departments to their Ministers regarding matters within their Ministers’ areas of responsibility. It offers advice and opinion from the Secretary of PM&C to the Prime Minister on matters regarding the administration of the Office of the Ombudsman. Also on the basis of Ms Kelly’s evidence, I accept that Document 1 was prepared over the long weekend in Canberra from 1 to 3 October 2011.
[14] Deputy Secretary, Governance, in PM&C. She has been a public servant for 25 years and has held her current position since September 2013. In that position, she is responsible for machinery of government, legal policy and governance issues across the Australian Public Service (APS), Cabinet and the coordination of support to the Prime Minister and Portfolio Ministers. In addition, Ms Kelly is the Chief Operating Officer responsible for financial management, Information Communication Technology and corporate services. She reports directly to the Secretary of PM&C on matters within her responsibility.
Those matters come to be within the Secretary’s area of responsibility in this way. The matters dealt with by each Department of State include the matters referred to in the relevant Part of the AAO and matters arising under the legislation administered by the Minister of State administering that Department of State. In the case of PM&C, those matters were set out in Part 15 of the AAO in force at the relevant time. The Ombudsman Act was, and continues to be, among the legislation administered by the Prime Minister.
Section 57(1) of the Public Service Act 1999 (PS Act) sets out the role of the Secretary of a Department. They include, but are not limited to:
“(a) principal official policy adviser to the Agency Minister;
(b)manager, ensuring delivery of government programs and collaboration to achieve outcomes within the Agency Minister’s portfolio and, with other Secretaries, across the whole of Government;
(c)leader, providing stewardship within the Department and, in partnership with the Secretaries Board, across the APS;
(d)any other role prescribed by the regulations.”
Among the responsibilities of the Secretary are those set out in s 57(2) of the PS Act. They include being required:
“(a) …
(b)to advise the Agency Minister about matters relating to the Department;
(c)-(h)…
(i)to assist the Agency Minister to fulfil the Agency Minister’s accountability obligations to the Parliament to provide factual information, as required by the Parliament, in relation to the operation and administration of the Department;
(j)…”
I also accept Ms Kelly’s description of the purpose of the document which, I find, accords with the tenor of the matters it deals with:
“The briefing formed the basis for the Prime Minister to deliberate upon the appropriate response to a serious and significant situation. That situation was multifaceted, raising issues around the discharge of key elements to the Office, as well as the relationship between the Ombudsman, the Parliament and the Executive.
The advice canvasses a range of possible responses to the issues which the documents that had been provided to PM&C gave rise to concerning the discharge of the Ombudsman’s role, including analysis of the implications of each option. It includes discussion of legal advice provided in connection with the issue.”[15]
LEGISLATIVE FRAMEWORK
[15] Exhibit A at [25] and [26]
The objects of the FOI Act
The FOI Act sets out its objects in s 3. They were reframed in 2010 with the enactment of the Freedom of Information Amendment (Reform) Act 2010 (2010 Amendment Act) when s 3 was amended. They now read:
“(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)requiring agencies to publish the information; and
(b)providing for a right of access to documents;
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b)increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends that the functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.”
The rights and duties created by the FOI Act
Subject to the provisions of the FOI Act itself, every person has a legally enforceable right to obtain access in accordance with those provisions to, among others, “a document of an agency, other than an exempt document”.[16] Again subject to the provisions of the FOI Act, a person’s right of access is not affected by his or her reasons for seeking access or what an agency or Minister might believe those reasons are.[17]
[16] FOI Act; s 11(1)(a)
[17] FOI Act; s 11(2)
A document of an agency such as PM&C is an “exempt document” if it is exempt for the purposes of Part IV of the FOI Act.[18] A document is an exempt document for the purposes of Part IV if it is an exempt document under either Division 2 or it is conditionally exempt under Division 3 and access to the document would, on balance, be contrary to the public interest for the purposes of s 11A(5).[19]
[18] FOI Act; s 4(1): paragraph (a) of definition of “exempt document”. Paragraph (b) does not apply as PM&C is not an agency that is exempt from the operation of the FOI Act in respect of any documents.
[19] FOI Act; s 31B
Inherent in a person’s right to obtain access is the imposition of a duty on the agency that complements that right. That is to say, the scope of the duty mirrors the scope of the right. Therefore, inherent in the creation of the right by s 11(1)(b) is the imposition of a duty on an agency to give, in accordance with the FOI Act, access to a document of that agency that is not an exempt document. Since its amendment by the 2010 Amendment Act, aspects of the duty that was previously inherent in the FOI Act are now expressly stated. Therefore, one aspect of what lies outside an agency’s duty is now expressly stated in s 11A(4) when it provides:
“The agency … is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
Note:Access may be given to an exempt document apart from under this Act, whether or not in response to a request (see section 3A (objects – information or documents otherwise accessible)).”
Sections 11A(5) and (6) also expressly draw aspects of the limits of the duty that is the correlative of a person’s right to obtain access under the FOI Act. They provide:
“(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Note:…”
(6)Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both:
(a)a conditionally exempt document; and
(b)an exempt document:
(i)under Division 2 of Part IV (exemptions); or
(ii)within the meaning of paragraph (b) or (c) of the definition of exempt document in subsection 4(1).”
I will return to the distinction between an exempt document and an exempt document when considering the two exemptions that have been claimed.
The Guidelines
Section 93A provides that the Information Commissioner may issue guidelines for the purposes of the FOI Act. Guidelines are not legislative instruments.[20] Section 93A(2) provides:
“For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section including, but not limited to, guidelines issued for the purposes of the following provisions:
(a)Paragraph 9A(b) (information publication scheme);
(b)subsection 11B(5) (public interest factors);
(c)subsection 15(5A) (decisions on requests).”
[20] FOI Act; s 93A(3)
CONSIDERATION: Guidelines
While s 93A(2)(b) is clear that, for the purposes of performance of a function, or the exercise of a power under the FOI Act, regard must be had to the Guidelines made by the Information Commissioner, there has been disagreement about the extent to which regard must be had. In summary, there are two points of view. One is that expressed by Deputy President Jarvis in Re Francis and Minister for Immigration and Ethnic Affairs (No 2)[21]
(Francis) when he said:
“18. Under s 93A of the FOI Act, the Information Commissioner is empowered, by instrument in writing, to issue Guidelines for the purposes of the Act, and regard must be had to any such Guidelines for the purposes of the performance of a function, or the exercise of a power, under the Act. The Information Commissioner has issued Guidelines in respect of amendment and annotation of personal records. In a New Zealand case Somers J commented that a requirement for a court ‘to have regard to’ seven specified matters must affect the court’s discretion, but that the matters to be regarded are not to limit or affect that discretion. He added:
I think the legislative intent is that the court has a complete discretion but that the seven matters, or as many as are appropriate, are to be considered. In any particular case, all or any of the appropriate matters may be rejected or given such weight as the case suggests is suitable. … [R v D [1976] 1 NZLR 436 at 437. See also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41]
In Department of Defence v Fox … [(1997) 24 AAR 171 at 176] O’Loughlin J, after reviewing authorities, said in effect that a requirement for a decision-maker to ‘have regard to’ specified matters means that he or she must give weight to them as a fundamental element in making a determination, and that ‘there would be a failure to “have regard” to nominated matters if the regard was not “adequate” or not ‘sufficient’” and that an authority would not comply with its statutory obligations ‘if it merely had “token” regard or “nominal” regard to those matters.’ In the present matter the Guidelines are not binding, but they provide assistance to those who administer the FOI Act, and decision-makers, including this tribunal, should apply the Guidelines unless there is a cogent reason to do otherwise. …[See Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645]”[22]
[21] [2012] AATA 838; (2012) 59 AAR 35
[22] [2012] AATA 838; (2012) 59 AAR 35 at [18]; 39-40
This approach was adopted by Senior Member Popple in Re Rovere and Secretary, Department of Education and Training[23] (Rovere) when said:
“… [T]he Tribunal should apply the FOI Guidelines unless there are cogent reasons to the contrary – because it encourages consistency in decision making. Encouraging consistency in decision making was the reason why Brennan J concluded, in Drake [Re Drake and Minister for Immigration and Ethnic Affairs
(No. 2)], that the Tribunal should apply lawful ministerial policy unless there are cogent reasons to the contrary. … [(1979 2 ALD 634 at 644-645; see also at 639] The FOI Guidelines are made under legislation by an independent statutory office-holder. They should be given appropriate weight.”[24][23] [2015] AATA 462
[24] [2015] AATA 462 at [12]
In between the two cases, I decided the case of Re Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson[25] (Sanderson). I disagreed with the conclusion reached by Deputy President Jarvis in Francis that “… decision-makers, including this tribunal, should apply the Guidelines unless there is a cogent reason to do otherwise.” I gave reasons for concluding, in summary, that:
“… Parliament intended that the Tribunal should consider them [the Guidelines] and do so genuinely. Beyond that, it did not require the Tribunal to go. In particular, Parliament did not require the Tribunal to give weight to the Guidelines as a fundamental element in its review. …”.[26]
[25] [2015] AATA 361
[26] [2015] AATA 361 at [126]
I will briefly set out my reasons for the view I have taken:
(1)In Drake, Brennan J was speaking of discretionary decisions and the relevance of policy guidelines in making them. His Honour said:
“ Inconsistency is not merely inelegant; it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. …
…
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1 …). … ”[27]
[27] [1979] AATA 179; (1979) 2 ALD 634 at 639 -640
(2)Brennan J then turned his mind to the role that Ministerial policy should play in the Tribunal’s review of decisions made having regard to that policy. His first observation was that, in point of law, the Tribunal’s duty is to make the correct or preferable decision in each case on the material before it. In doing that, it is at liberty to adopt whatever policy it chooses, or no policy at all. It could not, of course, adopt a policy of its own volition that was inconsistent with the statute just as it could not apply a Ministerial policy that was inconsistent. To do so would be to vitiate its decision.[28] Assuming that the policy is lawful and acknowledging that the Tribunal cannot deprive itself of the freedom to depart from ministerial policy in a particular case:
[28] [1979] AATA 179; (1979) 2 ALD 634 at 642-643
“… there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if parliament has in fact scrutinized and approved that policy.
If the Tribunal, in reviewing a decision made in pursuit of a lawful administrative policy, consciously departed from that policy, it would nullify not only the policy made by the repository of the discretionary power, but also any mechanism of surveillance which the relevant statute permits or provides. To depart from ministerial policy thus denies to parliament its ability to supervise the content of the policy guiding the discretion which parliament created. On some occasions, reasons may be shown to warrant departure from ministerial policy; for example, where the intervention of new circumstances has clearly made a policy statement obsolete.”[29]
[29] [1979] AATA 179; (1979) 2 ALD 634 at 644
(3)There can be no quibbling with the principles set out by Brennan J but that is not to say that they are directly referable to the vast majority of decisions made in the performance of functions or the exercise of powers under the FOI Act. None of those functions or powers involves the exercise of a discretion.[30]
[30] Any discretion that there is lies outside the bounds of the FOI Act although it is recognised in it. Section 3A provides that it does not intend to limit the power or a Minister or of an officer of an agency to publish or give access to information or a document despite any restriction in the FOI Act and whether or not access has been requested under s 15. Section 58(2) expressly provides that “Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.”
(4)The wording of s 93A(2) is that “regard must be had to any guidelines issued by the Information Commissioner. In Francis, reference was made to two different ways in which this obligation might be interpreted. One was that taken in R v D: have regard to all or some of the whole or some of the matters specified and give each such weight as the decision-maker considers appropriate. The other was that taken in Department of Defence v Fox: give weight to specified matters as a fundamental element in making a decision. The conclusion reached in Francis that “the Guidelines are not binding, but … decision-makers … should apply the Guidelines unless there is a cogent reason to do otherwise”. That adopts neither way and, while consistent with that in Drake does not acknowledge that guidelines relating to the exercise of a discretion are very different from guidelines relating to the interpretation and application of the law.
(5)In my view, there is an obligation to have regard to the Guidelines. That is clear from the words of s 93A(2). The question then becomes: what is the extent of that obligation?
(a)As suggested in Francis, there are, broadly speaking, two possible constructions open. They were canvassed by Sackville J in Singh v Minister for Immigration and Multicultural Affairs[31] (Singh) decided by Sackville J. He did so in considering s 54(1) of the Migration Act 1958 (Migration Act), which required the Minister to have regard to all of the information in an application for a visa before deciding whether to grant or refuse to grant that visa:
[31] [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599
“… This expression is capable of different meanings, depending on its context. … [A] statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and ‘give weight to them as a fundamental element in making his [or her] determination’: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. But the phrase ‘have regard to’ can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.”[32]
[32] Singh [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599 at [54]; 163; 609-610
(b)Whether the obligation is one or the other is determined by reference to the nature of the factors to which regard must be had. In the case of the obligation in s 54(1) of the Migration Act to have regard to all of the information in an application, Sackville J considered both the nature of the information of which regard was required and the practicalities of the decision-making process:
“…It could hardly have been contemplated by the drafters that every piece of information selected for mention by an applicant, no matter how marginal its relevance to the issues to be determined, must be treated by the decision-maker as a ‘fundamental element’ in making the determination. The ordinary meaning of the words in s 54(l) does not suggest otherwise. Moreover, such a construction would render the decision-making process unworkable, not least because the
Minister would have to treat the matters referred to in s 501(6)(c) of the Migration Act and all the information in the application as fundamental elements in determining whether an applicant passes the character test.”[33]
[33] Singh [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599 at [57]; 164; 610-611
(c)An obligation to “have regard to” various factors is not “… satisfied merely by … the decision-maker, being aware of the information … The expression ‘have regard to’ suggests a process of consideration of information. In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.”[34]
[34] Singh [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599 at [58]; 164; 611
(6)These principles require me to have regard to the FOI Act as an integral part of the process of deciding the nature of the obligation imposed by s 93A.
(a)Application of the FOI Act is a matter of interpreting its provisions to determine the criteria relevant in exercising its powers and functions and, in the case of a request for access to a document, examining the relevant document and considerations and making the appropriate decision. The simplicity with which the process may be stated, belies the difficulty that may attend it.
(i)Taking the exemption provisions as an example, the FOI Act sets out the criteria relevant to each but, given the myriad of documents and the myriad of subjects to which they relate and the circumstances in which they may be generated, do not, and I suggest, cannot descend to a level of detail beyond that in which they are currently drafted.
(b)The FOI Act provides for the decisions to be made at the agency level and for the first level of external merits review to be undertaken by the Information Commissioner. Provision is made for the second level of external review to be undertaken by the Tribunal.
(d)The structure of the decision-making and review processes suggests to me that, subject to a qualification to which I will return below:
(i)Parliament intended that a decision-maker at first instance in the agency would pay close regard to the Guidelines both in order to achieve consistency of outcome and because the Guidelines are likely to reflect the view taken by their author on the first level of review.
(ii)Given the myriad of documents, subject matters and circumstances pertaining to agency documents, I do not consider that Parliament intended to go further and require a decision-maker at first instance to have regard to the Guidelines as fundamental elements in the decision-making process. To do that would unnecessarily restrict a decision-maker in applying all relevant circumstances that might arise under the FOI Act in relation to a particular document.
(iii)Rather, Parliament intended that a decision-maker would have regard to the Guidelines in the sense of considering them in each case.
(e)In so far as the second level of external merits review is concerned, it seems to me that s 93A requires that the Tribunal have regard to the Guidelines in considering them in each case but does not go beyond that.
(i)To go beyond that to the point taken in Francis would be to run the risk of adopting something akin to a document of deference. I explained my view regarding the dangers of that approach in Sanderson:
“To require the Tribunal to give weight to the Guidelines as a fundamental element in its review would be to introduce into the review process something almost akin to a doctrine of deference to the IC’s decision in a merits review setting. It is a doctrine that has not found favour with the courts when reviewing administrative decisions.[35] The reasons for its being out of favour are centred on its purporting to erode the courts’ supervisory role. This Tribunal does not, of course, have a supervisory role in that sense but it is required to review the IC’s decisions and to reach decisions that are correct in law and on the evidence. The regard that it has to the Guidelines must be tempered by its obligation to make correct decisions under the FOI Act. Its obligation to do so must necessarily outweigh the regard it is required to have to the Guidelines issued under
s 93A.”[36](f)The qualification to which I refer above is that s 93A cannot be read as requiring those performing a function or exercising a power under the FOI Act to have regard to the Guidelines if to do so would be to act in a manner inconsistent with the FOI Act or with a judgment of the High Court or the Federal Court interpreting it.
CONSIDERATION: s 42 and legal professional privilege
[35] Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400; 60 ALD 342; Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ
[36] [2015] AATA 361 at
Section 42: the provision
Section 42(1) provides that:
“A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.”
That exemption is qualified by ss 42(2) and (3). Beginning with s 42(2), it does not permit the exemption to be claimed if legal professional privilege has been waived. More specifically:
“A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.”
The second qualification is found in s 42(3) and it ensures that the legal professional privilege exemption cannot be claimed if to do so would be to frustrate an agency’s obligation to publish, among other information, its operational information. Section 42(3) provides:
“A document is not an exempt document under subsection (1) by reason only that:
(a)the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and
(b)the information is operational information of an agency.”
The expression “operational information” is defined in s 8A:
“(1) An agency’s operational information is information held by the agency to assist the agency to perform or exercise the agency’s functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities).
Example: The agency’s rules, guidelines, practices and precedents relating to those decisions and recommendations.
(2) An agency’s operational information does not include information that is available to members of the public otherwise than by being published by (or on behalf of) the agency.”
The authorities
I summarised the principles relating to legal professional privilege in my earlier decision in Re Philip Morris Limited and Prime Minister.[37] I adopt my analysis of them but, for the purposes of this case, I refer only to the following:
[37] [2011] AATA 556; (2011) 122 ALD 619 at [28]-[130]; 630-664
(1)A person’s interest in resisting production of a document and another’s in having access to it are irrelevant considerations in determining whether legal professional privilege applies.
(2)“The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. … [T]he actual form of the communication or recording is irrelevant.”[38]
[38] Commissioner Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 at 553; 584; 491 per McHugh J; see also Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561 at 552; 564 [9]
(a)If privilege attaches under the legal advice limb, the communication must have been made or material recorded for the dominant purpose of giving legal advice:
“ The dominant purpose is not the same as the ‘primary’ or the ‘substantial’ purpose: see Grant v Downs at CLR 678; ALR 580 per Barwick CJ. The ‘dominant’ purpose may be described as the ruling, prevailing, paramount or most influential purpose …. The ‘dominant purpose’ brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time …”[39]
[39] [2005] FCA 1247; (2005) 225 ALR 266 at [30]; 279. Appeal allowed, but not on this point, in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128; Finn, Merkel and Stone JJ
(b)If privilege attaches under the litigation limb, it is enough if the communication was made or material recorded for the purpose of confidential use in litigation. There is no need to establish that the dominant purpose in its being made or recorded was that of obtaining or giving legal advice.[40]
[40] See AWB Ltd v Cole [2006] FCA 571; (2006) 232 ALR 743; 91 ALD 741 at 777; 80; [144]-[145] per Young J
(3)“The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context: but it does not extend to advice that is purely commercial or of a public relations character …”[41]
[41] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(7)]; 45; 663 (citations omitted) per Young J
(4)“… [T]he lawyer’s advice must satisfy the description of professional advice given by a lawyer in his or her capacity as such …”.[42]
[42] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [101]; 410; 766;69 per Young J
(5)“… [L]egal professional privilege extends to any document prepared either by the client or the legal adviser from which the nature of the advice sought, or given, might be inferred …”.[43]
[43] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [131]; 417; 773; 76 per Young J
(a)“… The question whether privileged communications will be disclosed by virtue of the disclosure of another document, such as a draft pleading, draft agreement or draft witness statement, raises a question of objective fact that depends on what the other document actually states or conveys, either explicitly or as a matter of reasonable inference. … [T]he question is whether the disclosure of the document in question will directly reveal, or allow its reader to infer, the actual content or substance of a privileged communication.”[44]
[44] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46 at [132]; 417; 773; 76-77 per Young J
(6)The person entitled to claim the privilege may waive it, either intentionally or by implication:[45]
[45] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and at 493; 43 per Deane J
(a)“… [W]here 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.”[46]
[46] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and see also Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468 at 478-485 per Hunt CJ at CL
(b)“… What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.”[47]
[47] Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378 at [29]; 13; 94; 384 per Gleeson CJ, Gaudron, Gummow and Callinan JJ
(c)“… [I]t is well established that a voluntary disclosure of the gist, substance or conclusion of legal advice will amount to a waiver in respect of the whole of the relevant advice.”[48]
[48] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [163]; 77; 693 (citations omitted)
(d)The mere fact of disclosure to a third person, though, does not of itself amount to waiver[49] but:
[49] Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 at 355 per Jordan CJ cited with approval in Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378 at [30]; 14; 95; 385 per Gleeson CJ, Gaudron, Gummow and Callinan JJ
“ Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend on the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd[[50]], questions of waiver are matters of fact and degree. …”.[51]
[50] [2005] FCA 356; (2005) 65 IPR 442 at [26]; 447
[51] Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288 at [49]; 298-299; 17; 1302
(e)Mere reference to legal advice in another document such as pleadings in civil litigation does not of itself amount to waiver of the privilege although full disclosure of its contents will.[52]
[52] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ
(f)“ It would, of course, be a different case if the documents and information that the Commonwealth relies upon were disclosed under legal compulsion. On any view, the fact that documents and information were disclosed under compulsion would be very relevant to the question whether the person claiming privilege had engaged in inconsistent conduct. There is, moreover, authority to the effect that a production of documents or evidence under compulsion will not result in any waiver of privilege: Goldman v Hesper [1988] 1 WLR 1238 (‘Goldman’); Trans America Computer Co Inc v IBM Corporation 573 F2d 646 (9th Cir 1978) (‘Trans America’) at 651.”[53]
[53] Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [138]; 69; 686
(g)“… If it is conceded, as it must be, that a party upon whom a witness statement is served may use that statement in any way within the context of those proceedings (that is the whole reason why it is filed and served), it follows that it is conduct ‘inconsistent with the maintenance of the confidentiality which the privilege is intended to protect’ (Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29]) and an implied waiver of privilege has occurred. … [T]he filing and service operates as a complete, not simply limited, waiver of legal privilege.
17 To put the proposition in different terms, if ‘it is in the other side’s power to destroy the privilege entirely,’ … it can no longer be said that the original holder can reasonably expect any continued confidentiality. In such circumstances, the existence of the privilege cannot be made to turn on whether the other side in fact places the document into evidence or uses it for examination - either legal privilege exists or it does not, and either the client controls it or they do not: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [21] … In other words, once it is found that the original holder of the privilege cannot control further dissemination of the document, the privilege is destroyed as a matter of law without further inquiry into whether the communication was in fact disseminated.
18 This is not to say that there could never be something less than a full waiver of privilege; rather, the point is that for there to be only a limited waiver, the original holder must still retain full control as to further dissemination of the document. So, for example, providing a witness statement to a party but subject to conditions that the party may use it only for internal purposes, may not read it in court, may not place it into evidence and may not otherwise rely on it in examination or the proceedings generally might constitute a limited waiver only: see Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, 96 (stating that the waiver ‘can be limited so that it applies only in relation to particular persons, materials or purposes’); Goldman v Hesper [1988] 3 All ER 97 (cited in Mann v Carnell [1999] HCA 66; (1988) 201 CLR 1 at [29] for the proposition that disclosure ‘for a limited and specific purpose’ will not lead to loss of the privilege).”[54]
[54] Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88; (2008) 246 ALR 137 at [16]-[18]; 142-143
(7)In considering the question of disclosure of part of a document, care must be taken to ensure that disclosure of part of the document does not amount to waiver of the privilege in relation to that part which is not disclosed and for which privilege is claimed:
“ It is not difficult to see that where a document deals with a single subject-matter it would be unfair to allow a party to use part of the document and claim privilege as to the remainder. So it has been held that where cross-examining counsel asked a witness whether he had said certain things in a written statement, examining counsel was entitled to require the whole statement to be put into evidence … Similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject-matter, and then read the document to the judge in the course of opening the case, it was held that privilege be waived as to the whole memorandum …
The same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. …
… [T]he question is whether the disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material, and although the question whether the material that has been disclosed has been used in evidence is relevant, it is not decisive.”[55]
[55] Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 482-483; 34-35 per Gibbs CJ. See also Grofam Pty Ltd v ANZ Banking Group (1993) 45 FCR 445; 117 ALR 669; Northrop, Ryan and Beazley JJ; Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335 at 414-415 per McPherson J, with whom Andrews CJ and Demack J,
Section 42: are the passages for which exemption is claimed exempt
The Secretary of PM&C has claimed that the third sentence of paragraph 11 and the final two sentences of paragraph 14 are exempt. Having examined those passages, I am satisfied that they record legal advice obtained for the purposes of obtaining confidential legal advice. My finding is supported by the fact that the two passages set out advice obtained from the Australian Government Solicitor (AGS). That advice is legal advice and cannot be characterised as policy or other advice. As such, it would be privileged from production in legal proceedings on the ground that it is subject to legal professional privilege. Its repetition in a document prepared for the eyes of the Prime Minister and, possibly, for the Special Minister of State for the Public Service and Integrity and their staff[56] does not amount to a waiver of that legal professional privilege. It was obtained by PM&C but in the context of that Department’s carrying out its administrative functions. Its including reference to the legal advice in a briefing prepared for the Prime Minister on a subject within her and its area of administrative responsibilities is consistent with their maintaining the confidentiality of that legal advice within a closely confined group of people. Therefore, I am satisfied that legal professional privilege has not been waived and the third sentence of paragraph 11 and the final two sentences of paragraph 14 are exempt under s 42 of the FOI Act.
CONSIDERATION: s 47C and deliberative processes
[56] See [71] below
Section 47C: the provision
PM&C have claimed exemption for eight passages of Document 1 under s 47C, which is part of Division 3 of Part IV. Section 47C(1) provides:
“A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, of consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:
(a)an agency;
(b)a Minister; or
(c)the Government of the Commonwealth; or
(d)the Government of Norfolk Island.”
Section 47C(2) qualifies what is meant by the expression “deliberative matter” used in s 47C(1):
“Deliberative matter does not include either of the following:
(a)operational information (see section 8A);
(b)purely factual material.
Note: An agency must publish its operational information (see section 8).”
Section 47C(3) qualifies that scope of the exemption provided for in s 47C(1) when it provides that s 47C:
“… does not apply to any of the following:
(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 body or organisation, prescribed by the regulations, that is established within an agency;
(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.
Note:Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).”
If a document is exempt under s 47C, it is conditionally exempt. It will only be exempt if access to it would, on balance, be contrary to the public interest under s 11A(5). In working out whether access would have that consequence, regard must be had to s 11A(5). I will return to this below.
Does Document 1 contain deliberative matter?
A.Deliberative matter: general rule
The first question to ask is whether Document 1 contains matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, of consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of PM&C. Document 1 must meet this description if it, or part of it, is to come within the exemption in s 47C. In that regard, it is no different from s 47C’s predecessor, s 36 and there is no reason to adopt a different interpretation when the language of s 47C(1) mirrors that of s 36(1)(a). Both have been broadly drafted to gather a range of matters within their scope and, with one qualification.
In particular, there is no reason in the context either of the remainder of those provisions or of the FOI Act generally to limit the ordinary meanings given to the words “opinion, advice or recommendation … consultation or deliberation”. They were words that had been considered in the context of s 36(1)(a) by cases such as Re Howard and Treasurer of the Commonwealth of Australia,[57] Re Murtagh and Commissioner of Taxation,[58] Re Waterford and Department of the Treasury (No.2),[59] Re James and Others and Australian National University[60] and Kavvadias v Commonwealth Ombudsman (No 2).[61] The principles that have been established in relation to s 36(1)(a) and that remain pertinent in relation to s 47C(1) may be summarised in the following points:
[57] (1985) 7 ALD 626; 3 AAR 169; Davies J
[58] (1984) 54 ALR 313; 6 ALD 112; Davies J, President, Sir Ernest Coates and RA Sinclair, Members
[59] (1984) 5 ALD 588; Deputy President Hall and I Prowse and CA Hughes, Members
[60] (1984) 6 ALD 687 per Deputy President Hall
[61] [1984] FCA 179; (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198; Sheppard J
(1)“... ‘deliberation’ suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.”[62]
(2)In the case of Smith and Aboriginal and Torres Strait Islander Commission,[63] I set out the ordinary meanings of those words as they were used in s 36(1)(a). I adopt my conclusions that:
“… To a certain extent, the meanings of the words ‘opinion’, ‘advice’ or ‘recommendation’ overlap. Whether they overlap or not, all are expressing the notion of consideration followed by the formation of a view either about a certain subject or about a course of action and the transmission of that view.
… [T]here is a notion of consideration inherent in the meaning of ‘consultation’. That consideration may or may not lead to the formation of an opinion, advice or recommendation.
Similarly, the word ‘deliberation’ encompasses the notion of consideration. That consideration may involve consultation or discussion amongst more than one persons. Equally, a person who considers a matter on his or her own can be said to have deliberated upon it. Whether or not the deliberation leads in either case to the formation of an opinion, advice or recommendation is another matter.”[64]
(3)For the reasons I gave in Booker and Department of Social Security[65] in relation to the word “consultation” as it was used in s 36(1)(a), I consider that “…in order for there to be a consultation, there must be something of a two way exchange between at least two parties. …”.[66] This qualification seems equally applicable to the way in which “consultation” should be understood when it appears in s 47C(1).
[62] Harris v Australian Broadcasting Corporation [1983] FCA 242; (1983) 50 ALR 551; 78 FLR 236; 5 ALD 545 at 560; 248; 553; Beaumont J (see also Re Murtagh and Commissioner of Taxation and Re Howard and Treasurer of the Commonwealth of Australia)
[63] [2000] AATA 512
[64] [2000] AATA 512 at [54]-[56]
[65] [1990] AATA 218
[66] [1990] AATA 218 at [25]
Whether the opinion, advice or recommendation has been obtained, prepared or recorded or the consultation or deliberation has taken place, it must have done so “in the course of, or for the purposes of, the deliberative processes involved in the functions of … an agency …”, Minister or Government of the Commonwealth or of Norfolk Island. The authorities have considered what is meant by the “deliberative processes:
(1)“ As a matter of ordinary English the expression ‘deliberative processes’ appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. … The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one’s course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example upon the wisdom or expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s 36(1)(a) come into play.
It by no means follows, therefore, that every document on a departmental file will fall into this category. … [H]owever imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36(1)(a) applies.”[67]
(2)Referring to the ordinary meanings of “deliberative”, “deliberation” and “deliberate”, Sheppard J said in Kavvadias v Commonwealth Ombudsman that, uninstructed by the judgment of Beaumont J in Harris v Australian Broadcasting Corporation,[68] he:
“… would not have imported any qualification into the meaning of it based upon the need for there to be as part of the deliberative process some aspect of policy-forming. His Honour himself seems to have regarded that view as at least open in the passage from his judgment which I have cited.
… It would have been easy enough for those responsible for the drafting of the Act to have used the word ‘policy-forming’ as well as the word ‘deliberative’ in the section itself. This was not done. …
In light of what Beaumont J said in the passage earlier quoted from his judgment, I do not believe he has expressed a final view on the meaning of the expression. I do not find it necessary to express such a view either. …”[69]
[67] Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588 at 606
[68] [1983] FCA 242; (1983) 50 ALR 551; 5 ALD 545 and see below at [42]-[47]
[69] [1984] FCA 179; (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198 at 76-77; 299-300; 210-211
B. Deliberative matter: qualification relating to operational information
On the evidence, I find that Document 1 does not contain information held by PM&C to assist it in making its decisions or recommendations affecting members of the public within the meaning of s 8A. Therefore, it is not excluded from the scope of s 47C(1) by the operation of s 47C(2)(a).
C.Deliberative matter: qualification relating to purely factual material
The expression “purely factual material” was considered by the Full Court of the Federal Court in Harris v Australian Broadcasting Corporation and Ors.[70] At the time, the qualification set out in s 47C(2)(b) was found in s 36(5). The documents in issue in that case were reports prepared by Miss Mahla Pearlman regarding the functions and operation of the legal department of the Australian Broadcasting Corporation (ABC). At the time, Miss Harris was the head of that legal department. The ABC had granted access to those reports to Mr Michael Cosby. Miss Harris sought review of the ABC’s decision under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) on the basis that it had made an error of law. The error of law was said to be that they were exempt documents under s 36, the predecessor of s 47C. At trial, Beaumont J had found that Ms Pearlman’s reports were documents that would disclose matter in the nature of opinion, advice or recommendation, prepared for the purposes of the ABC’s deliberative processes involved in its functions. His Honour had also held that the disclosure of the reports would be contrary to the public interest except in so far as they contained purely factual material.[71] What was, and was not, purely factual material was in issue on appeal to the Full Court of the Federal Court.[72]
[70] (1983) 51 ALR 581; Bowen CJ, St John and Fisher JJ
[72] Harris v Australian Broadcasting Corporation (No.2) [1984] FCA 8; (1984) 1 FCR 150; 51 ALR 581; 5 ALD 564; Bowen CJ, St John and Fisher JJ The issue of Ms Harris’s standing to make the application under the ADJR Act on the basis that the ABC should have claimed exemption for them under s 36 was not raised either at trial or on appeal. Rather, the proceedings were conducted on the basis that, if the documents were exempt under s 36, the ABC was obliged to refuse access. This was not so at the time just as it is not so under the FOI Act as now in force. Section 14 has since been repealed but, at the time the Harris judgments were delivered, it provided that “Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.” Section 3A, which is summarised at [30] above, now expresses a similar sentiment.
Counsel for Miss Harris submitted that material coming within one or other of the following categories should not be described as purely factual material:
“(a) Summaries (because of the judgmental process involved in compiling them);
(b)Conclusions expressed as findings by Miss Pearlman;
(c)Judgments founded on Miss Pearlman’s expertise or the application of some standard.”[73]
[73] Harris v Australian Broadcasting Corporation (No.2) [1984] FCA 8; (1984) 1 FCR 150; 51 ALR 581; 5 ALD 564 at [18]; 154; 585-586; 568
The Full Court said of that categorisation:
“ In our view some summaries may be classed as purely factual material; others, which are of such a character as to disclose a process of selection involving opinion, advice or recommendation for the purpose of the deliberative process, may be exempt under s. 36.
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.
The same may be said of judgments of Miss Pearlman founded upon her expertise or the application of some other standard. If the material is in the nature of or relating to opinion, advice or recommendation for the purposes of the agency’s deliberative processes, it may qualify for exemption. But purely factual material, whether or not the statement of it is founded upon her expertise or based on the application of some standard, will be excluded from the exemption in s. 36.”[74]
[74] Harris v Australian Broadcasting Corporation (No.2) [1984] FCA 8; (1984) 1 FCR 150; 51 ALR 581; 5 ALD 564 at [19]-[21]; 154-155; 586; 568-569
In applying these principles, the Full Court was of the view that:
“… a provision such as s. 36 in the Freedom of Information Act 1982 (Cth) is to be applied according to common sense and the substance of the matter and not as an exercise in semasiology.”[75]
It considered passages that were introduced by phrases such as “I am of the opinion that”, “I find”, “I conclude” or “I am inclined to the view” were statements of the facts as Miss Pearlman saw them. In each case, the statement was preceded by a statement of particular facts in detail.
[75] Harris v Australian Broadcasting Corporation (No.2) [1984] FCA 8; (1984) 1 FCR 150; 51 ALR 581; 5 ALD 564 at [24]; 156; 587; 569
In the following year, Deputy President Todd elaborated on the meaning of the qualification “purely” to the expression “factual material” and its application:
“… The word ‘purely’ 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’. It seems to me that to be described as ‘factual’ the material must be ‘factual’ in fairly unambiguous terms. This is confirmed by resort to the dictionaries …”[76]
[76] Re Waterford and Department of the Treasury [1985] AATA 114 at [14]; Deputy President Todd
Where purely factual material is mixed with opinion, advice or recommendation that is exempt under the FOI Act, consideration must be given to whether it is reasonably practicable to prepare a copy of the document so that the exempt matter is deleted from the document and access given to an edited copy in accordance with s 22.
D.Consideration
Those parts of Document 1 that are not subject to any claim for exemption are largely factual in nature. Therefore, they come within the exclusion to the exemption set out in s 47C(1).
In relation to the passages that have been claimed to be exempt under s 47C, I find that all come within the scope of s 47C(1). Access to them would disclose matter in the nature of opinion, advice or recommendation that has taken place in the course of, or for the purposes of, deliberative processes involved in both PM&C’s functions and those of the Prime Minister. As I have said above, matters relating to the administration of the Ombudsman Act come within the scope of the Prime Minister’s administrative responsibilities under the AAO and so that of PM&C. Document 1 was prepared for the purposes of briefing the Prime Minister regarding various aspects of the Ombudsman’s having had discussions with Senator Hanson-Young. Subject only to the qualifications in s 47C(2), the passages for which exemption is claimed in Document 1 come within the scope of s 47C(1). I find that none is operational information of the sort regulated by s 8A of the FOI Act. Therefore, none of the passages is excluded from the scope of s 47C(1) by the operation of s 47C(2)(a).
Identifying material that is purely factual material from material that is otherwise characterised as deliberative material is required by the exclusion set out in s 47C(2)(b). If it is purely factual material, it is not within the scope of s 47C(1) but distinguishing between the two is not always easy. I take as an example the summary of recommendations appearing at the beginning of Document 1. Access has been given to the first, which is a recommendation by the Secretary, Mr Watt, to the Prime Minister, Ms Gillard. It reads:
“Recommendations - that you:
1.Note that I will be meeting the Ombudsman in the near future and will take the opportunity to raise issues relating to this matter with him.”
Although in the form of a recommendation, the substance of the statement is factual. The Prime Minister was not asked to note a course of action that was proposed or recommended but a course of action that was in place. Its form distinguishes it from the second and third recommendations for which exemption has been claimed. I am satisfied that they cannot be characterised as purely factual material.
The last nine words of the first sentence in [10] for which PM&C have claimed exemption are more difficult. The sentence begins with the factual statement, or which exemption is not claimed, that:
“The role of the Ombudsman is defined by the Act as investigating matters of administration …”.
The nine words that follows might be read as a conclusion of fact but I think that it is essentially an expression of opinion of the proper interpretation of the Ombudsman Act. An interpretation of legislation is not a matter that may be described as factual material, purely or otherwise.
The other passages in Document 1 for which exemption is claimed under s 47C do, I find, set out Mr Watts’ opinions, recommendations or advice on matters arising out of the Ombudsman’s discussions with Senator Hanson-Young. They do not come within the exception in s 47C(2) as they cannot, I find, be characterised as containing purely factual material.
Would access, on balance, be contrary to the public interest?
Having found that the passages come within s 47C(1), it follows that I am satisfied that Document 1 is conditionally exempt. Whether they are exempt from access depends on whether access to them would, on balance, be contrary to the public interest.
A.Section 11A(5): general concepts
It has been said that the “public interest” is not a static concept confined and defined by strict reference points. Where it lies in a particular matter “… will often depend on a balancing of interests including competing public interests …”.[77] Section 11A(5) expressly requires a balancing of interests when it provides that an agency must give access to a conditionally exempt document unless access at that time “would, on balance, be contrary to the public interest.” (emphasis added).
[77] McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; 220 ALR 587; 88 ALD 12; 41 AAR 23 at [231]; 139; 78; 92 per Jacobson J with whom Tamberlin J agreed, citing Sankey v Whitlam (1978) 140 CLR 1 at 60 per Stephen J
B. The legislative provisions
An agency must give access to a document that is conditionally exempt unless access to it at that time would, on balance, be contrary to the public interest. Section 11B applies for the purpose of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under s 11A(5) but it is not a section that is intended to limit s 11A(5).[78]
[78] FOI Act; ss 11B(1) and (2)
Sections 11B(3) and (4) deal with factors favouring access and those that are irrelevant respectively:
“Factors favouring access
(3)Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a)promote the objects of this Act (including all the matter set out in sections 3 and 3A);
(b)inform debate on matter of public importance;
(c)promote effective oversight of public expenditure;
(d)allow a person to access his or her own personal information.
Irrelevant factors
(4)The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth;
(aa)access to the document could result in embarrassment to the Government of Norfolk Island, or cause a loss of confidence in the Government of Norfolk Island;
(b)access to the document could result in any person misinterpreting or misunderstanding the document;
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d)access to the document could result in confusion or unnecessary debate.”
Although expressed in the active, rather than the passive voice, and although addressed to an agency or a Minister, s 11B(5) effectively repeats what is said in s 93A(2)(b). Section 11B(5) provides:
“In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.”
C.The Guidelines
The Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 and updated in October 2104, contain a passage explaining what is meant by “public interest”. Among the points made in that passage are the following:
“6.7 The concept of public interest has also been described as something that is of serious concern or benefit to the public, not merely of individual interest.[79] It has been held that public interest does not mean of interest to the public, but in the interest of the public.[80]
6.8 … Following the 2010 reforms, the term remains largely undefined, although there are some factors which must not be taken into account (see paragraph 3.61). The term ‘public interest is necessarily broad and non-specific because what constitutes the public interest depends on the particular facts of the matter and the context in which it is being considered. The concept can be applied to a multitude of situations and circumstances. Public interest considerations (such as the administration of justice) may also be simultaneously evoked in favour and against disclosure of a document in a particular case.
6.9 To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. The decision maker must analyse, in each case, where on balance the public interest lies, based on the particular facts of the matter at the time the decision is made.
6.10 It is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. The public interest relates to matters of common concern or relevance to all members of the public, or a substantial section of the public. A matter of particular interest to an individual or small group of people may nevertheless be a matter of general public interest. This is recognised in s 11B(3)(c) of the Act, which states that there can be a public interest in allowing a person to access his or her personal information.”
[79] British Steel Corporation v Granada Television Ltd (1980) 3 WLR 780
[80] Johansen v City Mutual Life Assurance Society Ltd (1904) 2 CLR 186
The Guidelines then set out s 11A(5) and continue:
“6.12 The pro-disclosure principle declared in the objects of the FOI Act is given specific effect in the public interest test, as the test is weighted towards disclosure. …”
The four factors set out in s 11B(3) as favouring disclosure are repeated in [6.23] and again in [6.25] where they are extended with other factors that may be relevant. As the Guidelines note, factors weighing against disclosure when applying the public interest test are not addressed in the FOI Act. They go on to set out a list of 14 factors that may be relevant in deciding whether access to a conditionally exempt document would, on balance, be contrary to the public interest under s 11A(5). They include factors that are relevant in determining whether a document is conditionally exempt. Taking only one example, factor [6.26(n)] is whether “… disclosure could reasonably be expected to prejudice the effectiveness of testing or auditing procedures”. That equates with s 47E(a) of the FOI Act.[81]
[81] Section 47E(a) provides “A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(a)prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency”.
Later, the Guidelines discuss the application of the public interest test:
“6.77 There is considerable case law on the former exemption provision (formerly s 36) as to whether disclosure of an internal working document would be contrary to the public interest, and whether reasonable grounds exist for a conclusive certificate claim to that effect. Agencies should be cautious in applying these precedents in light of the changes to the FOI Act in 2009 and 2010. Many earlier decisions applied or referred to the AAT’s decision in Re Howard and the Treasury,[82] which listed five factors that could support a claim that disclosure would be contrary to the public interest. Three of those factors are now declared to be irrelevant considerations by s 11B(4) of the Act (the high seniority of the author of the document in the agency to which the request for access to the document was made, misinterpretation or misunderstanding of the document, and confusion or unnecessary debate following disclosure). The other two Howard factors (disclosure of policy development, and inhibition of frankness and candour) are not, in those terms, consistent with the new objects clause of the FOI Act (s 3) and the list of public interest factors favouring access in s 11B(3). It is important now to have regard to the more extensive range of public interest factors that may favour or be against disclosure (see paragraphs 6.23-6.29 above).”
[82] Re Howard and the Treasurer [1985] AATA 100; (1985) 7 ALD 626; 3 AAR 169
In speaking of the factors of policy development and inhibition of frankness and candour, I note that the Guidelines do not state that they are never consistent with the new objects clause in s 3 and the list of public interest factors favouring access in s 11B(3). What they say is that the two factors “…are not, in those terms, consistent with the new objects clause … and the list of public interest factors favouring access ….” (emphasis added). Therefore, while rejecting the relevance of policy development and inhibition of frankness and candour when simply expressed in those terms, the Guidelines did not reject their relevance unreservedly. On the contrary, they expressed a reservation and, I suggest, whether there is a reservation in a particular case, will depend on the particular factual circumstances in which those factors are claimed to be relevant and the consequences of disclosure and of non-disclosure on the efficient workings of government weighed against their consequences on the access that might be had to a document under the FOI Act.
D.Previous authorities
It seems to me that my view may not be supported by Senior Member Popple in Rovere when he said:
“In my view, a ‘frankness and candour’ claim—in the words of Howard, a claim that disclosure will inhibit frankness and candour in future pre-decisional communications—cannot be a factor against access. A frankness and candour claim, made in circumstances where there is no (other) factor against access, is effectively a claim that disclosure of a document to which the FOI Act gives a right of access will inhibit the agency in preparing future documents to which the FOI Act will also give a right of access. That may be true—the disclosure of any document prepared by an agency for briefing a Minister has the potential to inhibit frankness and candour—but it cannot be a factor against access when applying the public interest test. It cannot be in the public interest that a document not be disclosed for no other reason than that its disclosure would discourage the creation of other documents which may also have to be disclosed.”[83]
[83] Rovere [2015] AATA 462 at [52]
This passage could be understood as being based on an assumption that disclosure of any document prepared for briefing a Minister has the potential to inhibit frankness and candour. An argument that frankness and candour will be inhibited could never be accepted unless there were another factor – presumably other than the frankness and candour factor – that weighs against access. If that is how the passage is to be understood, I would respectfully disagree with the validity of the assumption. The range of matters on which a briefing document may be prepared is broad including uncontroversial administrative matters, highly sensitive security matters and every sort of matter in between. To accept the validity of the assumption would be to call into question the integrity of public servants in carrying out their duties and responsibilities in accordance with the APS Values. Those values include the APS’s being:
“(4) … open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.
…
(5)… apolitical and provid…[ing] the Government with advice that is frank, honest, timely and based on the best available evidence.”[84]
[84] Public Service Act 1999; ss 10(4) and (5)
I also note, as Mr Davidson submitted, that Parliament did not go so far as to include the inhibition of frankness and candour among those factors stated by s 11B(4) of the FOI Act to be irrelevant factors. As it has chosen not to do so, I turn to look at the way in which issues relating to frankness and candour have been examined in the past by the courts. They are factors that pre-date the enactment of the FOI Act. In the context of the admissibility of evidence, they have been raised in supporting a submission that evidence should be excluded on the basis its admission would be prejudicial to the public interest. The general rule is that a court will not order production of documentary evidence even though it is relevant if to disclose it would be contrary to the public interest. In Sankey v Whitlam,[85] Gibbs ACJ said that:
“… the law recognizes that there is a class of documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain; in other words that the law recognizes that there is a class of documents which in the public interest should be immune from disclosure. The class includes cabinet documents …”.[86]
[85] [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505
[86] [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505 at [38]; 39; 526
Gibbs ACJ went on to refer to a view taken in other cases that all documents concerned with policy making within departments would comprise a class of documents whose disclosure would be contrary to the public interest:
“ One reason that is traditionally given for the protection of documents of this class is that proper decisions can be made at high levels of government only if there is complete freedom and candour in stating facts, tendering advice and exchanging views and opinions, and the possibility that documents might ultimately be published might affect the frankness and candour of those preparing them. Some judges now regard this reason as unconvincing, but I do not think it altogether unreal to suppose that in some matters at least communications between Ministers and servants of the Crown may be more frank and candid if those concerned believe that they are protected from disclosure. For instance, not all Crown servants can be expected to be made of such stern stuff that they would not be to some extent inhibited in furnishing a report on the suitability of one of their fellows for appointment to high office, if the report was likely to be read by the officer concerned. However this consideration does not justify the grant of a complete immunity from disclosure to documents of this kind. Another reason was suggested by Lord Reid in Conway v. Rimmer … [[1968] AC at p 952]:
‘To my mind the most important reason is that such disclosure would create or fan ill-formed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind.’
Of course, the object of the protection is to ensure the proper working of government, and not to protect Ministers and other servants of the Crown from criticism, however intemperate and unfairly based. Nevertheless, it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No Minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public. The public interest therefore requires that some protection be afforded by the law to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject matter with which they deal.”[87]
[87] [1978] HCA 43; (1978) 142 CLR 1; 21 ALR 505 at [39]; 40; 527
These distinctions were reflected in the FOI Act as originally drafted and passed in 1982. Cabinet documents and the like were exempt by virtue of their categorisation as such. What were described as “internal working documents” or policy documents of the type referred by Gibbs ACJ were exempt only if they both met the criteria of the relevant categorisation under s 36(1)(a) and disclosure under the FOI Act would be contrary to the public interest within the meaning of s 36(1)(b). In Harris v Australian Broadcasting Tribunal,[88] Beaumont J relied, among others, on Sankey v Whitlam for the proposition that:
“ In evaluating where the public interest ultimately lies in the present case, it is necessary to weigh the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper working of government and its agencies on the other …”[89]
This remains a description of the essence of the task that faces a decision-maker evaluating the various factors under s 11B in order to determine whether access to a conditionally exempt document would, on balance, be contrary to the public interest under s 11A(5).
[88] [1983] FCA 242; (1983) 78 FLR 236; 50 ALR 551; 5 ALD 545
[89] [1983] FCA 242; (1983) 78 FLR 236; 50 ALR 551; 5 ALD 545 at 246; 561; 554
I note that, more recently in Re ‘GI’ and Department of the Prime Minister and Cabinet,[90] the Information Commissioner has explained his understanding of the passage in Rovere in this way:
“ I note that a more recent decision of the Administrative Appeals Tribunal, Rovere and Secretary, Department of Education and Training [2015] AATA 462 has held that ‘A frankness and candour claim, made in circumstances where there is no (other) factor against access ... cannot be a factor against access when applying the public interest test’ (at [52]). I read that as a comment only that a confidentiality or candour claim carries no weight by itself but must be related to some particular practice, process, policy or program in government.”[91]
[90] [2015] AICmr 51
[91] [2015] AICmr 51 at [20]
As I understand this passage, the Information Commissioner is directing attention back to the essential balance that must be struck between making information held by government available to the public so that there can be increased public participation leading to better-informed decision-making and increased scrutiny and review of the government’s activities and ensuring that government may function effectively and efficiently. If I am correct in my understanding, I would agree with his doing so. The way in which s 11B is drafted indicates that such a balance must be struck. That is consistent with the approach taken by Beaumont J in Howard in considering the related public interest provisions in a predecessor of s 11B - namely s 36(1)(b) - and there is nothing in the drafting of s 11B that suggests that Parliament has moved away from it. It is consistent with the broader principles stated in Sankey v Whitlam. Section 11B(2) specifically states that s 11B does not limit s 11A(5) when it provides that the agency or Minister must give the person access to the document if, at the time, access to it would, on balance, be contrary to the public interest. By specifying in s 11B(4) five factors that are always irrelevant in deciding whether access would be contrary to the public interest and, in s 11B(3), four factors that favour access but specifying none that may not favour access, Parliament has implicitly recognised that the factors falling in that last category cannot be captured in that way. Those factors are very dependent on the particular circumstances attending the way in which a document came into being and attending it subsequently.
E.Findings regarding the subject matter of Document 1
In her affidavit, Ms Kelly gave evidence regarding the prospect of disclosure of advice given to the Prime Minister. I accept her evidence that, at the time Document 1 was prepared on 4 October 2011, its content was highly sensitive. That follows from the fact that its content was concerned with the way in which a very senior public office holder had discharged the duties of his office. The duties had been imposed by Parliament and, provided a complaint has been made, gave him authority to investigate and examine matters of administration across Commonwealth Departments and prescribed authorities.[92] Except for a limited range of exclusions, a prescribed authority is a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment.[93] In carrying out an investigation, the Ombudsman must act impartially between the complainant and the Department or prescribed authority. The Ombudsman reports to the Department or prescribed authority on any investigation.[94] If, within a reasonable time after receiving the Ombudsman’s report, the Department or prescribed authority fails to take action with respect to the matters and recommendations included in that report, the Ombudsman may refer the matter to the Prime Minister.[95]
[92] Ombudsman Act; s 5
[93] Ombudsman Act; s 3(1)
[94] Ombudsman Act; s 15
[95] Ombudsman Act; s 16
Although not expressly stated on the face of the document, I accept Ms Kelly’s evidence that Document 1 was prepared on an urgent basis by senior officers of PM&C to brief the Prime Minister. It is inherent in the substance of the briefing notes in Document 1 that those senior officers regarded the matters arising from the Ombudsman’s discussions with Senator Hanson-Young as very serious and sensitive. It is inherent in the fact that the matters arose in relation to a statutory office holder whose independence was assured to the extent that he could only be removed by a motion of both Houses of Parliament in the same session of the Parliament. It is inherent in the limited circulation given to the briefing. That circulation was limited to the Prime Minister (and her staff) and, if the Prime Minister wished, the Special Minister of State for the Public Service and Integrity (SMSPS) and his staff. On the basis of Ms Kelly’s oral evidence, I find that Document 1 was not circulated by PM&C to the SMSPS for, had it been, that fact would have been endorsed on the document. It is not endorsed on it. I make no findings regarding whether there was a meeting between the Prime Minister and the SMSPS for, in response to a question by Mr Asher, Ms Kelly said that she was not aware of any such meeting. If there had been, she could not answer whether there had been notes kept of it.
Having read Document 1, I also accept Ms Kelly’s evidence that Document 1 is drafted in candid and forthright terms. I also accept her evidence that:
“… in order for PM&C to continue to diligently perform its role and function as trusted adviser to the Prime Minister, some advice must be able to be provided on a confidential basis. Confidentiality needs to be particularly assured over advices dealing with highly sensitive matters going to the heart of the performance of the executive branch of government. …”[96]
[96] Exhibit A at [28]
F.The evidence regarding public interest factors
In her affidavit, Ms Kelly referred to Document 1 as an example of the sort over which confidentiality needs to be assured. It was prepared by officers who needed to give candid and urgent comment to the Prime Minister on the conduct of an incumbent statutory office holder. The matters went to the heart of the performance of the executive branch of government, she said. If it were a prospect that their advice were to be made public, Ms Kelly said, it would be very likely that the officers would have reframed their advice. She explained the reasons for that in the following passages of her affidavit:
“31. Public servants will understand they have a duty to give the best advice they possibly can in the circumstances. But public servants will also be concerned about the possible consequences for the incumbent in that role, and for the office itself, in disclosing sensitive advice about the discharge of functions in this offices. The possibility of the public disclosure of advice options canvassed could prejudice or pre-empt a proper consideration of the issue by relevant decision-makers is likely to encourage the advice giver to be more circumspect in the giving of that advice. The adviser’s purpose in doing so would not be to frustrate the minister’s deliberations, but to reduce any risk of prejudice to the individual or the office that might flow from public disclosure of the most candid assessment of such situations and the available options. But the consequence would be less comprehensive, and so less helpful, advice.
32.For example, a brief might discuss the legal, policy and practical risks associated with various options presented to a minister for responding to issues arising in the discharge of a statutory office. Public release of that advice and the options that were canvassed may increase the likelihood of those risks transpiring, those options being frustrated, or other damage to the situation or the people involved. The natural and reasonable desire to avoid those harms is likely to lead to the authors to be less detailed about those risks or options. As a consequence, the advice is less comprehensive.
33.The tension between being frank and comprehensive but minimising the risk for collateral harm would impede public servants’ ability to act as trusted advisers to ministers during difficult and sensitive circumstances requiring urgent and meaningful advice. I consider this likely on issues arising in relation to the discharge of senior public office holders’ roles where such advice is called for. As a result the Department’s capacity to support the attainment of the best possible outcomes in such situations, and ultimately the Government’s decision-making, could be expected to be significantly undermined.”[97]
[97] Exhibit A
As for Document 1 itself, Ms Kelly said in her affidavit evidence, the issues she had raised remain applicable to the passages for which exemption has been claimed for they:
“34. … comprise information which goes to the role of a senior office holder within the Prime Minister’s portfolio. It also illustrates the need for the public service to be able, when the occasion requires, to give totally frank advice on an understanding of necessary confidentiality having regard to the content of the advice and the respective roles of the minister and their department in our system of government.
35.Based on my experience as a senior public servant, in my view it is critical for departments of State (such as PM&C) to have a relationship of trust and confidence with their ministers. Departments of State are charged with assisting ministers to discharge their ministerial responsibilities at an executive level.
36.Ministers are accountable, to the Parliament. The role of the public service is to assist the minister to effectively discharge their functions, including through providing the minister with advice. This is best discharged in an environment of mutual trust and appropriate conference.
37.Disclosing confidential advice provided on an urgent and sensitive topic relating to the discharge of functions by statutory office holders at senior levels in the portfolio has a very real capacity to undermine that trust and confidence, and ultimately the relationship, between a minister and their department.
38.The need for public servants to maintain appropriate confidentiality is reflected in the APS Code of Conduct (contained in s 13 of the Public Service Act 1999) which includes a requirement that, subject to any other legal obligations:
An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff.
39.When a minister does not have an effective relationship with their department, then the business of governing becomes substantially more difficult and stilted. This inevitably leads to poorer outcomes for the public, who do not have the benefit of a fully effective government and bureaucracy.”[98]
[98] Exhibit A
I asked Ms Kelly to expand on the contents of [35] of her affidavit. She said, in essence, that the role of the public service is to be apolitical. A Minister relies on the public service to give them technical knowledge of particular subject areas so that they may make the decisions for which they are accountable. The relationship between the two must be one of trust and confidence. To disclose the public service’s advice to the public is to interrupt that relationship so that the Minister may not be informed in the same way. The Minister would know that the advice is not just for him or her. If writing for the public, a document is written differently from the way in which it is written for a Minister. While others may say that disclosure of advice to the public may lead a Minister to go to a source other than the public service for advice, Ms Kelly did not suggest that access to Document 1 under the FOI Act would harm the relationship so that the Prime Minister would not turn to PM&C for advice.
Ms Kelly also addressed the effect of passage of time on the issues that she had raised in the context of Document 1. Four years have passed since it was written. In her view, they have not been affected:
“40. … Public servants need to be assured that their advice on highly sensitive matters going to the independence and impartiality of statutory office holders can remain confidential. This assurance is integral to ensuring public servants can effectively advise in the future when advice of this kind is called for.
41.One effect of the passage of time is to diminish the relevance of the information in the brief to any current issue of public importance. I acknowledge there may be historical interest in the circumstances of Mr Asher’s resignation. The remainder of document 1 does little to inform that interest beyond what is already in the public domain. …
42.The options and analysis which have not been disclosed from the brief (ie document 1) were effectively overtaken by Mr Asher’s decision to resign.”[99]
[99] Exhibit A
G. Consideration
Consistently with Ms Kelly’s evidence, I accept the public service needs to be able to give totally frank advice to Ministers. I also accept that there will be occasions on which its officers need to do so on an understanding that their advice will be confidential. They need to be able to frame their advice freely rather than in the more guarded or careful terms in which a Minister may address the same issue in public or a public servant may prepare an information document or press release on that issue. A Minister needs to be confident that he or she can rely on advice given by his or her Department and know that the advice has not been framed so carefully that, if released at the same time, it would not compromise what the Minister chooses to say. The terms in which a Minister addresses an issue on which the public service has advised and in relation to which he or she is accountable to the Parliament is a matter for the Minister.
Having acknowledged that, however, I do not accept that advice given on those occasions need always be kept confidential and out of the public eye. To reach that conclusion would run counter to the FOI Act itself which is based on every person’s having a right of access to a document unless disclosure of that document would have one of the outcomes set out in Part IV of the legislation read with s 11B as appropriate. Whether a document has that outcome must be assessed at the time disclosure is considered. That may be some years after the preparation of the document and events surrounding its preparation may have changed.
In this case, four years have passed since Mr Asher spoke with Senator Hanson-Young regarding matters relating to his office. Mr Asher has resigned as Ombudsman. Ms Gillard is no longer the Prime Minister. Mr Watt is no longer Secretary of PM&C. The only officer of PM&C who was involved in the preparation of the advice and who remains in PM&C is Ms Lynch. Senator Hanson-Young continues to be a Senator. The events have largely been aired in public. As Ms Kelly said, there may be historical interest in the events by the general public but I would go further and say that there is a public interest in knowing that the government generally, and the Prime Minister in particular, were given advice that explored the issues arising from a sensitive set of circumstances and gave comprehensive advice. It is difficult to see how disclosure of such advice some four years after the circumstances in which it was given will inhibit public servants in giving such comprehensive advice in future. Disclosure of the advice will also disclose the role that an impartial public service plays in Australia’s system of responsible government but does so at a time when those at the heart of events leading to the preparation of that advice have moved on to other things and at a time when the issue has, for the Australian public generally, become a matter of historical interest. On balance, I find that disclosure of those parts of Document 1 which are conditionally exempt would not be contrary to the public interest under s 11A(5).
DECISION
For the reasons I have given, I affirm the decision of the Information Commissioner dated 19 December 2014. That means that Mr Asher is entitled under the FOI Act to have access to all parts of Document 1 other than the two passages that I have found to be exempt under s 42.
I certify that the eighty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ………...................[sgd].....................................
Associate
Date of Hearing 21 August 2015
Date of Decision 8 December 2015
Solicitor for that Applicant Mr Justin Davidson
Australian Government SolicitorAdvocate for the Respondent Mr Alan Asher
Other Party Self represented
Gray
v Associated Book Publishers Pty Limited [2002] FCA 1045 at [32] per Branson J and Candacal Pty Ltd v Industry Research and Development Board [2005] FCA 649; (2005) 223 ALR 284; 59 ATR 615 at [53]; 295 per Lee J
5 ALD 545 and Harris v Australian Broadcasting Corporation (No.2) [1983] FCA 281; (1983) 50 ALR 567; 78 FLR 264; 5 ALD 560
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