Re Smith and Aboriginal and Torres Strait Islander Commission

CATCHWORDS – FREEDOM OF INFORMATION – ATSIC documents claimed to be exempt under sections 36, 41, 42 and 45 of The Freedom of Information Act 1982 – decision varied.

Aboriginal and Torres Strait Islander Commission Act 1989 – Ss 2, 3, 7, 14, 27, 30, 31, 33, 40, 41, 45, 56, 61, 75, 76, 78, 78A, 90, 91, 92, 94, 99, 102, 104, 113, 117, 119, 119A, 122, 122A, 128, 128A, 128B, 128C, 130,
Aboriginal and Torres Strait Islander Commission (No. 3) Act 1993 – s33
Aboriginal and Torres Strait Islander Commission Act 1996
Aboriginal and Torres Strait Islander Commission Amendment Act 1996 – S 28A
Crown Lands Act 1884
Crown Lands Act 1895
Freedom of Information Act 1982 – Ss 3, 11, 12, 36, 37, 38, 40, 41, 42, 43, 45
Freedom of Information Act 1991 – Ss 29, 38,
Freedom of Information Act 1992 (Qld) – S 46

Attorney-General v Cockcroft (1986) 64 ALR 97; (1986) 10 FCR 180; (1986) 12 ALD 468
Booker and Department of Social Security (unreported, Decision 6189, 13 September, 1990)
Corrs Pavey Whiting and Byrne v Collector of Customs, Victoria (1987) 13 ALD 254; (1987) 74 ALR 428; (1987) 14 FCR 434; (1989) 7 AAR 187
Goodwin v Phillips (1908) 7 CLR 1; (1908) 9 SR (NSW) 65
Harris v Australian Broadcasting Corporation and Others (1983) 5 ALD 545; (1983) 50 ALR 551; (1983) 78 FLR 236
Harris v Australian Broadcasting Corporation and Others (1984) 5 ALD 564; (1984) 1 FCR 150; (1984) 51 ALR 581
Marco Ascic v Australian Federal Police (1986) 11 ALN N184
Re B and Brisbane North Regional Health Authority (Decision No. 94001, 31 January, 1994, Mr Albietz, Information Commissioner)
Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626; (1985) 3 AAR 169
Re James and Others and Australian National University (1984) 6 ALD 687; (1984) 2 AAR 327; (1984) 2 AAR 327
Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64; (1984) 6 ALD 198; (1984) 54 ALR 285
Re Kamminga and Australian National University (1992) 26 ALD 585; (1992) 15 AAR 297
Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112; (1984) 1 AAR 419; (1984) 54 ALR 313
Re Waterford and Department of the Treasury (No. 2) (1984) 5 ALD 588; (1984) 1 AAR 1

DECISION AND REASONS FOR DECISION [2000] AATA 512

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1997/1219
GENERAL ADMINISTRATIVE DIVISION      )

Re WAYNE SMITH

Applicant

AndABORIGINAL & TORRES STRAIT ISLANDER COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 22 June, 2000

Place Brisbane

Decision The Tribunal:

1.affirms the decision of a delegate of the respondent dated 3 October, 1997 in so far as it decided, in relation to document 1.2 that:
(1)the information claimed to be exempt and described below is exempt pursuant to s. 36 of the Freedom of Information Act 1982:
(a)the information in the first two lines of text following the heading "Conclusion" on page 7 of the report;

(b)the information under the heading of "Recommendation" on page 8 of the report;

(c)the information in the first two lines of text following the heading "Conclusion" on page 29 of the report;

(d)the information under the heading of "Recommendation" on page 29 of the report;

(2)the information claimed to be exempt and regarding certain persons as described below is exempt pursuant to s. 41 of the Freedom of Information Act 1982:
(a)Person B, Appendix A06, page 4, lines 5, 16 and 31;
(b)Person B, Appendix A06, page 6, lines 15 and 28;
(c)Person A, Appendix A16-5, page 4, line 40;
(d)Person B, Appendix A06, page 7, line 13;
(e)Person B, Appendix A16-2, page 4, lines 15, 26, 39, 41 and 42;
(f)Person B, Appendix A16-5, page 5, lines 15, 20 and 28;
(g)Person B, Memorandum to Union Delegate (2 pages), page 2, lines 2, 6, 7 and 9;
(h)Person B, Brief of events (2 pages), page 2, line 14;
(i)Person O/Business P, Appendix A16-2, page 1, lines 25, 28, 33, 36 and 42;
(j)Person O/Business P, Appendix A16-2, page 2, lines 1, 8 and 12;
(k)Person O/Business P, Memorandum (1 page, 22 typed lines of text), lines 7, 10 and 12; and
(l)Person O/Business P, Memorandum (1 page, 21 typed lines of text), lines 9 and 13.

(3)the information claimed to be exempt and described below is exempt pursuant to s. 45 of the Freedom of Information Act 1982:
(a)the information, preceded by the word "the" and followed by the words "had directed" in line 12 on page 14 of the report;

2.affirms the decision of a delegate of the respondent dated 3 October, 1997 in so far as it decided, in relation to document 1.6 that:
(1)the information claimed to be exempt and described below is exempt pursuant to s. 36 of the Freedom of Information Act 1982:
(a)the information in the last two paragraphs on page 34 and the two paragraphs on page 35 of the report;

(2)the information claimed to be exempt and described below is exempt pursuant to s. 42 of the Freedom of Information Act 1982:
(a)the information in Annexure D of document 1.6 being all but the letterhead, addressee and signature block of a letter from R.F.G. Finlayson and Associates to the Chairperson of the GR Council and is dated 27 April, 1994.

3.affirms the decision of a delegate of the respondent dated 3 October, 1997 in so far as it decided, in relation to document 1.8 that:
(1)the information claimed to be exempt and described below is exempt pursuant to s. 36 of the Freedom of Information Act 1982:
(a)Report, page 12, 1st, 2nd and 3rd paragraphs.

4.affirms the decision of a delegate of the respondent dated 3 October, 1997 in so far as it decided, in relation to document 3 that:
(1)the information claimed to be exempt and described below is exempt pursuant to s. 36 of the Freedom of Information Act 1982:
(a)Report, page 3, 4th paragraph excluding first two lines beginning "During" and concluding "other";
(b)Report, page 4;
(c)Report, page 19, 1st two lines;
(d)Report, page 3, 1st two paragraphs;

5.otherwise sets aside the decision and substitutes a decision that:
(1)except in so far as it is specified in paragraphs 1- 4 of this decision, the information claimed to be exempt in documents 1.2, 1.6, 1.8 and 3 is not exempt from disclosure pursuant to the Freedom of Information Act 1982.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 4 December, 1997, the applicant, Mr Wayne Smith, applied for review of a decision, which had been made by a delegate of the respondent, the Aboriginal and Torres Strait Islander Commission ("the Commission") on 3 October, 1997. That decision had been to affirm in all respects but one earlier decisions which had been made by other delegates on 24 July, 1997, 7 August, 1997 (2) and 12 August, 1997 in relation to Mr Smith's request for access to certain documents. Mr Smith had sought access to:

"* Reports resulting from special audits or investigations regarding allegations of misconduct regarding regional councillors and/or councils.
*Reports resulting from special audits or investigations into Land Councils in Queensland.
*Special audits and review into the Canteen Creek Owairtilla Association Incorporated.
*The Viner Report on the Aboriginal Legal Service in Victoria.
*Reports relating to the construction of community houses at Bardi One Arm Point in Western Australia." (T documents, page 16)

The effect of the delegates' decisions had been to release most of the documents comprising the Viner report, to refuse access to eleven other reports and to release 19 of a further 24 documents coming within Mr Smith's request. The eleven reports comprised approximately 352 documents. The effect of the delegate's decision on review was to disclose the remaining five documents in the final bundle of 24 but to affirm the decisions to refuse access to the eleven reports. It refused them on the basis that they were exempt from disclosure under the Freedom of Information Act 1982 ("FOI Act"). In so far as passages in nine of them were not exempt, the delegate affirmed on review that disclosure of those nine documents from which the exempt material had been deleted would render the documents unintelligible and so misleading.

Since the application was lodged, there have been various discussions between the parties and conferences conducted and orders made by the Tribunal as a consequence of their having reached an agreement. In June, 1998, the Commission agreed to give Mr Smith's legal representatives access, by way of inspection, to all of the documents at issue in this case. It did so on the basis of the legal representatives' undertaking not to disclose the contents of those documents to Mr Smith and upon Mr Smith's undertaking not to require them to disclose them to him. The Commission identified those documents, or parts of documents, for which it claimed exemption and the reasons for those claims. Disclosure in this way enabled the parties to identify their areas of agreement and disagreement. After being given access, Mr Smith's legal representatives prepared a summary of the contents of the documents. With the Commission's agreement, that summary was disclosed to Mr Smith to enable him to give them instructions.

Considerable consultations then took place between Mr Smith's legal representatives and the Commission and its legal representatives. As a result of those consultations, an agreement was reached that the Commission would release certain documents. On 29 April, 1999, Mr Beddoe, Senior Member, ordered that the hearing proceed on the basis of the parties' agreement. That agreement was to the effect that the Commission would waive its claims of exemption under ss. 36 and 42 of the FOI Act in relation to certain material which was of a purely factual nature and that it would release that material to Mr Smith subject to the deletion of:
the names of all people identified in the documents together with any description, title or reference to factual circumstance which the Commission argued might identify such people;
any material which the Commission claimed was provided on a confidential basis and is claimed to be exempt under s. 45 of the FOI Act;
material for which exemption is claimed under ss. 37, 40 or 43; and
any material which the Commission maintained attracted the operation of statutory provisions other than those in the FOI Act and disclosure of which it claimed was prevented under those other statutory provisions (e.g. Aboriginal and Torres Strait Islander Commission Act 1989, s. 90)
In deleting the material, the Commission used a code to identify the general category of information deleted from the document. The letter "N", for example, was used to indicate that a person's name had been deleted. The copies so "vetted" were to be given to Mr Smith's legal representatives before 4 June, 1999. Having done so, Mr Smith's legal representatives then indicated that he sought access to only four items. In broad terms, those four items may be described, in general terms, as:
a report with appendices and attachments, dated February, 1996, to the Office of Evaluation and Audit in the Commission by Deloitte Touche Tohmatsu regarding the Mount Isa and Gulf Regional Council;
a report with annexures, dated 31 October, 1995, to the Office Evaluation and Audit in the Commission by Mr W.J. Carter QC regarding the Goolburri Regional Council;
a report with appendices, dated August, 1996, to the Office of Evaluation and Audit of the Commission into alleged misbehaviour by a Commissioner by Mr Ian Curlewis QC; and
a report, dated 16 April, 1996, to DAS Support Services by Mr J. Trezona, chartered accountant, regarding a special audit and review of the Canteen Creek Owairtilla Association Inc and an investigative report and review with photographs by Mr Trezona regarding that Association for the period 1 July, 1995 to 31 January, 1996.
Although it had earlier specified the grounds upon which it claimed that parts of these documents were exempt, the Commission subsequently claimed additional grounds of exemption in relation to those parts. These it specified in a supplementary statement of facts and contentions filed on 30 September, 1999. Mr Smith addressed these additional grounds in his supplementary statement of facts and contentions filed on 30 September, 1999.

At the hearing, Mr Smith was represented by Mr Barlow of counsel and the Commission by Mr Swan, general counsel. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with an affidavit by Ms Rosanne Marie Wilson, articled clerk, on 3 August, 1999, minutes of the meeting of the Mount Isa and Gulf Regional Council meeting held on 22-23 May, 1994 at Mount Isa, minutes of meetings of the Goolburri Regional Council held on 26-29 April, 1994 at Charleville, on 17-19 May, 1994 at Quilpie, on 15-17 June, 1994 at Rainbow Beach and on 27-29 July, 1994 at Goondiwindi, an extract from the records of the Australian Securities and Investment Commission regarding Murawina Mount Druitt Ltd, a letter from the National Aboriginal and Torres Strait Islanders Legal Services Secretariat dated 24 November, 1999 to Mr Swan and a further letter of the same date to the Tribunal, an affidavit sworn on 25 November, 1999 by Mr John Eldridge, General Manager, Social and Cultural Division of the Commission and an affidavit sworn on 30 November, 1999 by Mr Peter McPhillips, Managing Partner of Deloitte Touche Tohmatsu. No oral evidence was called on behalf of either party.

THE ISSUES

The issues in this case were whether specified passages in three documents are exempt from disclosure pursuant to ss, 36, 38, 41 and 43 of the FOI Act. As consideration of these issues has required the scrutiny and analysis of many pages of text and many more passages of information on those pages, I have decided to give detailed reasons for my decisions in relation to document 1.2. Wherever possible, I will summarise my reasons for my decisions in relation to documents 1.3, 1.6 and 2.1 in tabular form.

THE LEGISLATIVE PROVISIONS AFFECTING THE COMMISSION AND ITS MEMBERS

The Commission was established by the Aboriginal and Torres Strait Islander Commission Act 1989 ("the Commission Act") on 5 March, 1990 (s. 2). The objects of that legislation, set out in s. 3, were:

"… in recognition of the past dispossession and dispersal of the Aboriginal and Torres Strait Islander peoples and their present disadvantaged position in Australian society:
(a)to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them;
(b)to promote the development of self-management and self-sufficiency among Aboriginal persons and Torres Strait Islanders;
(c)to further the economic, social and cultural development of Aboriginal persons and Torres Strait Islanders; and
(d)to ensure co-ordination in the formulation and implementation of policies affecting Aboriginal persons and Torres Strait Islanders by the Commonwealth, State, Territory and local governments, without detracting from the responsibilities of State, Territory and local governments to provide services to their Aboriginal and Torres Strait Islander residents."

The functions of the Commission are set out in s. 7. Among those functions and of relevance in this case are its functions:

"(a) to formulate and implement programs for Aboriginal persons and Torres Strait Islanders;
(b)to monitor the effectiveness of programs for Aboriginal persons and Torres Strait Islanders, including programs conducted by bodies other than the Commission;
(c)…
(d)to assist, advise and co-operate with Aboriginal persons and Torres Strait Islander communities, organisations and individuals at the national, State, Territory and regional levels;
(e)to advise the Minister on:
(i)matters relating to Aboriginal persons and Torres Strait Islander affairs, including the administration of legislation; and
(ii)…

(f)when requested by the Minister, to provide information or advice to the Minister on any matter specified by the Minister;
(g)…
(h)…
(i)…
(j)such other functions as are conferred by the Commission by this Act or any other Act;
(k)…
(l)…
(m)…
(n)…
(o)…" (s. 7(1))

Section 14 provides that the Commission may make a grant of money, an interest in land or an interest in personal property and may make a loan of money (whether secured or unsecured) to an individual, a body corporate (other than a Regional Council or the Torres Strait Regional Authority ("TSRA") or an unincorporated body for the purpose of furthering the social, economic or cultural development of Aboriginal persons and Torres Strait Islanders. A grant or a loan is subject to such terms and conditions as are determined by the Commission. The Commission may acquire by agreement an interest in property, real or personal, for the purpose of making a grant under s. 14.

The Commission may engage persons having suitable qualifications and experience as consultants (s. 56(1)). The terms and conditions upon which consultants are engaged are determined in writing by the Commission (s. 56(2)). the Commission must also set out in a written instrument, which it publishes in the Commonwealth Gazette, the criteria for engagement of consultants and the standard terms and conditions for their engagement (s. 56(3)).

An Office of Evaluation and Audit ("OEA") is established within the Commission (s. 75). Its functions are to evaluate and audit the operations specified in the section. Among those operations are:

"(a) to evaluate and audit the operations of the following bodies regularly:
(i)the Commission;
(ii)…
(iii)…
(iv)…

(b)when requested to do so by the Minister or the Commission, to evaluate or audit particular aspects of the operations of the following bodies:
(i)the Commission;
(ii)…
(iii)…
(iv)a Regional Council;
(v)…

(ba)…
(c)…
(d)…
(da)…
(db)…
(e)…
(f)when requested to do so by the Minister or the Commission, to evaluate or audit the operations of a body corporate that has received one or more grants or loans from the Commission, but only to the extent that the evaluation or audit concerns those grants or loans;
…" (s. 76(1))

When the OEA evaluates or audits the operations of a body in accordance with, among others, ss. 76(1)(b) or (f), the Director of that office may authorise a person, who is a member of the Commission's staff or a consultant, to perform the functions and exercise powers for the purposes of the evaluation or audit (s. 78A(2)). Of relevance in relation to the evaluation or audits in this case are ss. 78A(3) and (5) which provide:

"(3) For the purposes of a particular evaluation or audit, the Director of the Evaluation and Audit or an authorised person may examine documents relating to the individual or body concerned."
"(5) For the purposes of performing the function conferred by subsection (3), the Director of Evaluation and Audit or the authorised person:
(a)is entitled at all reasonable times to full and free access to documents relating to the individual or body; and
(b)may make copies, or take extracts from, any such document; and
(c)may require a person:
(i)to answer such questions; and
(ii)to produce such documents in the person's possession or to which the person has access;

as the Director of Evaluation and Audit or the authorised person, as the case requires, considers necessary for that purpose."

A person who:

"… without reasonable excuse, refuses or fails to comply with a requirement under paragraph 5(c) is guilty of an offence punishable upon conviction by a fine not exceeding 20 penalty units." (s. 78A(6))
Section 78A(7) elaborates upon s. 78A(6) by providing that:

"For the purposes of subsection (6), it is not a reasonable excuse for a person to refuse or fail:
(a)to give information; or
(b)to produce a document;

in accordance with a requirement made of the person, on the ground that the information or production of the document, as the case may be, might tend to incriminate the person or make the person liable to a penalty. However:
(c)giving the information or producing the document; or
(d)any information, document or thing obtained as a direct or indirect consequence of the giving of the information or producing the document;

is not admissible in evidence against the person in any criminal proceedings, other than proceedings for an offence against, or arsing out of, subsection (6) or (8)."

Section 78A(8) is concerned with the information given by a person pursuant to s. 78A(5)(c). It provides that:

"A person who, in purported compliance with a requirement under paragraph (5)(c), makes a statement that is, to the person's knowledge, false or misleading in a material particular, is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units."

The Commission comprises 19 members who are appointed by the Minister (ss. 27(1) and (2)). Members must be Aboriginal persons or Torres Strait Islanders (s. 31(1)). Of those 19 members, 1 is the Chairperson who may be, but is not required to be, a person elected under Division 7 of Part 3 to represent a zone; 17 are persons elected under Division 7 of Part 3 to represent the several zones; and one other member who must not be a person elected under Division 7 of Part 3 to represent a zone (s. 27(1), (3) and (4)). The members, who are Commissioners (s. 4(1)), hold office on a full-time basis. Apart from the Chairperson, however, they are specifically permitted to hold office as a member of a Regional Council on a part-time basis (s. 30(2)). If the Chairperson represents a zone prior to his or her appointment as Chairperson, he or she ceases to represent the zone or to be a Regional Councillor upon his or her appointment (s. 27(5)). The Commissioners elect one of their number to be Deputy Chairperson (s. 32).

The Chairperson and the non-elected Commissioner hold office for such period, not exceeding 3 years, as is set out in, or worked out under, their instrument of appointment (ss. 33(1) and (1C)). The Deputy Chairperson holds office as Deputy Chairperson until he or she ceases to be a Commissioner or another person is elected to that office (s. 33(1B)). A Commissioner who has been elected as provided by Division 7 of Part 3 to represent a zone, holds office until another person is appointed as a Commissioner having been elected to represent that zone (s. 33(2)).

For practical purposes, a zone comprises a group of regions. There are 35 regions in so much of Australia as does not consist of the Torres Strait (s. 91(1)). Those regions have been grouped into zones in Schedule 1 to the Commission Act (s. 130(1)). The Torres Strait area is established as a zone (s. 130(1)(a)).

Section 40 sets out the grounds upon which the Minister may suspend a Commissioner from office or terminate the appointment of an elected Commissioner. Provided the Minister follows the procedures set out in that section, the Minister "… may suspend a Commissioner from office because of misbehaviour or mental incapacity." (s. 40(1)). The Minister may terminate the appointment of an elected Commissioner if he or she ceases to be a member of a Regional Council or a TSRA otherwise than by resignation (s. 40(6)). In certain circumstances, the Minister is required to terminate the appointment of a Commissioner. Section 40(7) provides that:

"If a Commissioner:
(a)is convicted of an offence against a Commonwealth, State or Territory law and sentenced to imprisonment for one year or longer;
(b)is convicted of an offence against a Commonwealth, State or Territory law involving dishonesty and sentenced to imprisonment for 3 months or longer;
(c)is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any period of 12 months; or
(e)fails, without reasonable excuse, to comply with section 21 of the Commonwealth Authorities and Companies Act 1997;

the Minister shall terminate the appointment of the Commissioner."

Again, the Minister must follow the procedures set out in s. 40 if he or she terminates a Commissioner's appointment (s. 40(8)).

Returning to the regions into which Australia, apart from the Torres Strait area is divided, a Regional Council is established for each (s. 92(1)). The functions of each Regional Council include: the formulation, and revision, of a regional plan for improving the economic, social and cultural status of Aboriginal and Torres Strait Islander residents of the region; to assist, advise and co-operate with the Commission, TSRA and other Commonwealth, State, Territory and local government bodies in the implementation of the regional plan; to make proposals for the Commission's expenditure in relation to the region; and to represent Aboriginal and Torres Strait Islander residents of the region and to act as an advocate of their interests (s. 94(1)). A Regional Council does not have a function to acquire land except for administrative purposes or for the purpose of performing functions expressly conferred on it by the Commission Act (s. 94(2)).

Each Regional Council must prepare, and give to the Commission, a report dealing with its operations during the previous financial year, the implementation of the region's regional plan and such other matters as the Commission determines in writing (s. 99(1)). In addition to these matters, the report must also set out certain further information if a grant was made to an individual or body during the financial year and the grant was covered by Regional Council estimates relating to the region concerned. The information to be set out is the name of the individual or body and the amount and purpose of the grant (s. 99(1A)). The report, which must be made within 2 months after the end of each financial year (s. 99(1)), must be tabled at a meeting of the Commission before the following 31 December (s. 99(2)). Within 7 days after a Regional Council gives its report to the Commission, it must make copies available for inspection and purchase by residents of the region (s. 99(3)(a)). If the report deals with the implementation of a particular version of the regional plan for the region, the Regional Council must make copies of the version of the plan available for inspection and purchase by residents of the region (s. 99(3)(b)). The Commission must make copies of the report and regional plan for the region concerned available for inspection and purchase at each of its offices that serves the region (s. 99(4)).

Each Regional Council comprises no fewer than seven members (s. 115(3) and (4)). Elections for members are held each three years (s. 104) and members hold office until the next election (s. 117(1)). Those entitled to vote at those elections are those who are Aboriginal persons or Torres Strait Islanders and their names are either on the Commonwealth Electoral Roll and their place of living is in the ward concerned or the person is entitled to vote pursuant to rules made under s. 113(3). The qualifications for election to a Regional Council are found in s. 102:

"(1) A person is not qualified to stand for election, or to be elected, as a member for a Regional Council ward if:
(a)the person is not entitled to vote at the Regional Council ward election concerned;
(b)the person does not live in the ward;
(c)the person is a member of the staff of, or a consultant to, the Commission or the TSRA;
(d)subject to subsection (2), the person has been convicted of an offence against a Commonwealth, State or Territory law and sentenced to imprisonment for one year or longer;
(e)subject to subsection (2), the person has been convicted of an offence against a Commonwealth, State or Territory law involving dishonesty and sentenced to imprisonment for 3 months or longer;
(f)the person is bankrupt; or
(g)there is in operation a composition, deed of arrangement or deed of assignment with the person's creditors under the law relating to bankruptcy."

Section 102(2) ameliorates the operation of ss. 102(d) and (e).

Members of each Regional Council are required to disclose certain pecuniary interests in two situations. The first relates to matters considered at a meeting of the Regional Council. Section 119(1) provides that:

"A member of a Regional Council who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Regional Council shall, as soon as possible after the relevant facts have come to the member's knowledge, disclose the nature of the interest at a meeting of the Regional Council."

The Minister may make a written determination providing that specified interests are taken to be, or not taken to be, direct or indirect pecuniary interests for the purposes of s. 119 (s. 119(4) and (5)).

A member's disclosure must be recorded in the minutes of the meeting. Having made a disclosure, a member must not:

"(a) unless the Minister otherwise determines in writing – be present during any deliberations of the Regional Council with respect to that matter; or
(b)unless the Minister otherwise determines in writing – take part in any decision of the Regional Council with respect to that matter." (s. 119(2))

Any determination made by the Minister must be published in the Commonwealth Government Gazette (s. 119(3)). The Minister may delegate his or her powers in relation to determinations regarding attendance to the Chairperson of the Commission (s. 119(3)).

Each member of a Regional Council must also make a written disclosure of his or her direct or indirect pecuniary interests to the Commission. The declaration must be made in accordance with the Minister's written determination specifying the kinds of interest to be disclosed, the manner in which, and times at which, the disclosures are to be made and the form in which the register is to be kept (ss. 119A(1) and (4)). The Commission must keep a register of the interests disclosed in accordance with the Minister's determination made under s. 119A(4). It must also allow any person to inspect the register at any reasonable time without charge (s. 119A(3)).

A person ceases to be a member of a Regional Council when the Commission is satisfied that certain circumstances have occurred and it declares in writing that it is so satisfied (s. 122). Those circumstances include those in which the person:

"has failed, without reasonable excuse, to comply with section 119 or 119A" (s. 122(1)(c)).

The Commission also has the power to suspend a member of a Regional Council. Provided it follows the procedure set out in s. 122A(2), it "… may suspend a Regional Councillor from office because of misbehaviour or physical or mental incapacity"(s. 122A(1)). If the Commission exercises its power, it must cause a statement identifying the member and the ground of suspension to be laid before each House of Parliament with 7 sitting days of that House after the suspension (s. 122A(3)).

The Chairperson of a Regional Council, who is elected in accordance with s. 127, is required to convene at least 4 meetings of the Regional Council in each calendar year. He or she may convene such other meetings as are necessary for the efficient performance of the Regional Council's functions (s. 128(1)).

Sections 128A, 128B and 128C were inserted in the Commission Act by the Aboriginal and Torres Strait Islander Commission Amendment Act 1996 and came into operation on 12 September, 1996. Section 128A(1) provides that "Except as provided by this section, anyone is entitled to be present at a meeting of a Regional Council." (s. 128A(1)) Persons other than members of the Regional Council concerned are not entitled to be present at a meeting if the Council has passed a resolution stating that the person is to be excluded from the meeting or a person presiding at the meeting and authorised by the council to direct that a person or persons be excluded has made such a direction (s. 128A(2)). Section 128A(3) provides that:

"A person (other than a member of the Regional Council concerned) is not entitled to be present at a meeting of a Regional Council if:
(a)the Council is considering an excludable matter; and
(b)the Council has resolved that the meeting be closed to the public while that matter is being considered."

The Regional Council's resolution must identify the matter concerned and the resolution must be recorded in the minutes of the meeting (s. 128A(4)).

Those matters which are "excludable matters" for the purposes of s. 128A are:

"(a) a matter relating to a member of the staff of the Regional Council or to any other person assisting the Council in the performance of its functions;
(b)a matter involving personal hardship suffered by a person;
(c)any of the following:
(i)a trade secret;
(ii)other information having a commercial value the disclosure of which would, or could reasonably be expected to, affect a person adversely in respect of the person's lawful business, professional, commercial or financial affairs;
(iii)information (other than a trade secret or information to which subparagraph (ii) applies) that would, could reasonably be expected to, confer a financial advantage on a competitor of the Regional Council;

(d)a proposal for the making of a grant or loan, or the giving of a guarantee, by the Regional Council;
(e)any matter the divulging of which is prohibited by section 90;
(f)information the disclosure of which would found an action for breach of confidence;
(g)information of such a nature that it would be privileged from being disclosed in legal proceedings on the ground of legal professional privilege;
(h)information the disclosure of which would, or could reasonably be expected to, prejudice the enforcement or proper administration of the law;
(i)a matter affecting the security of the Regional Council, its members, its staff or its property;
(j)a motion to close the meeting to the public." (s. 128C)

Section 128B provides that a Regional Council must allow any person to inspect, at any reasonable time and without charge, any documents that are in its possession and that meet one or other of the following descriptions:

"(a) a document setting out a code of conduct to be observed by the Council or its members;
(b)rules for the conduct of proceedings at meetings of the Council;
(c)a regional or other plan formulated by the Council;
(d)a determination of, or any other document relating to, remuneration or allowances for members;
(e)a document identifying any of the facilities that are provided for members;
(f)the minutes of proceedings at meetings of the Council other than any part of the minutes that relates to an excludable matter;
(g)a determination made under subsection 119(2);
(h)any other document to which the person is entitled to have access under the Freedom of Information Act 1982."

Section 90 is concerned with restrictions upon the communication of certain information. It applies to, among others, a Commissioner, a member of staff of the Commission, a person engaged as a consultant under s. 56, the Director of OEA and a Regional Councillor (ss. 90(1)(a), (d), (e), (f) and (h)). Section 90(2) provides that:

"Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except for the purposes of this Act, or of a prosecution for an offence against this Act:
(a)make a record of, or divulge or communicate to any person, any information concerning the affairs of another person acquired by the first-mentioned person in the performance of duties in connection with an application for, or the giving of, a loan, grant or guarantee under this Act; or
(b)produce to any person a document relating to the affairs of another person furnished in connection with an application for, or the giving of, a loan, grant or guarantee under this Act.
Penalty: Imprisonment for one year."

Information and documents referred to in s. 90(2) may be divulged by a person to another if he or she had been given written authorisation to do so by the person to whose affairs the information relates (s. 90(2A)). Section 90(3) then goes on to provide that:

"A person to whom this section applies shall not be required:
(a)to divulge or communicate to a court any information referred to in subsection (2); or
(b)to produce in a court any document referred to in that subsection;
except when it is necessary to do so for the purposes of this Act, or of a prosecution for an offence against this Act."

A "court" includes "… any tribunal, authority or person having power to require the production of documents or the answering of questions …" (s. 90(5)). The word "produce" "includes permit access to" (s. 90(5)).

CONSIDERATION

I will take each of the four documents in turn and consider the claims for exemption made in relation to them.

Document 1.2: a report with appendices and attachments, dated February, 1996, to the Office of Evaluation and Audit in the Commission by Deloitte Touche Tohmatsu regarding the Mount Isa and Gulf Regional Council

Outline of document

On 5 December, 1995, the Acting Director of OEA approved terms of reference. Those terms specified that the "purpose of the consultancy was to provide the Office of Evaluation and Audit with an informed assessment and opinion on particular matters concerning the Chairperson of the Mt Isa and Gulf Regional Council, members of the Council and the Willejuddara Aboriginal Corporation." (document 1.2, page 2)

The terms of reference given to Deloitte Touche Tohmatsu ("the consultants") were, in so far as they are not claimed to be exempt:

"1. To inquire into whether members of the Regional Council may have breached Section 119 of the Act during the 12th meeting of the Regional Council held at Mt Isa over the period 22-23 May 1995.
2.To inquire into concerns regarding the actions of the Willejuddara Aboriginal Corporation in relation to the letting of a … contract to a company in which … is the sole proprietor. … The funds for the fencing contract were provided to … by the Commission and the Department of Housing, Local Government and Planning as part of a project to provide a hall, houses and units at …. . The Regional Council agreed to the Commission's portion of the funding for this project in 1993/94.
3.To inquire into concerns that … may have benefited financially from an ATSIC grant to the … and did not disclose that benefit.
4.To inquire into allegations by three Regional Councillors and three other members of the Aboriginal community of threatening and/or intimidating behaviour towards people by … .
5.Make recommendations on any further action which should be taken by the Commission or the Minister in relation to the matters covered by this term of Reference." (document 1.2, pages 2-3)

Further information regarding the concerns which led to the matters being referred to the consultant are found in the passage headed "Background". From that it is apparent that the Commission had identified the possible breaches of s. 119 of the ATSIC Act and had referred the matter to the OEA. The Minister had referred to the OEA:

"… allegations concerning the Chairperson of the Regional Council relating to the failure to declare a pecuniary interest and threatening and/or intimidating behaviour. The Minister has also requested that OEA inquire into concerns relating to the awarding, by the Willejuddara Aboriginal Corporation, of a fencing contract to a company of which it is alleged that the sole proprietor is the wife of the Regional Council Chairperson." (document 1.2, page 2)

On the basis of the affidavit of Mr Peter McPhillips, the managing partner of the consultants, I find that document 1.2 was prepared by Mr McPhillips and Mr Phillip Roy, who was then an Audit Manager with the firm. Document 1.2 has a table of contents at its beginning and comprises an introduction, terms of reference, executive summary, detailed findings, appendices and attachments. The appendices are listed as: transcripts of interviews; questions in writing to Chairperson Colin Saltmere and responses by Chairperson Colin Saltmere. The attachments are not listed but are referred to throughout the report. In the report, each term of reference is dealt with separately. Each is set out at the beginning of a separate section. There then follow paragraphs headed "Preamble" which are followed by paragraphs headed "Approach", then others headed "Our findings", those headed "Conclusion" and finally those headed "Recommendation". In relation to the fifth term of reference, the consultant's recommendations for possible further action were set out as part of their conclusions in relation to the first four terms of reference.

Claim for exemption under section 36 – term of reference 1

Section 36(1) provides that:

"Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

(b) would be contrary to the public interest."

Sections 36(5) and (6) qualify the operation of s. 36(1) but only s. 36(5) is relevant in this case. It qualifies its operation by providing that it "… does not apply to a document by reason only of purely factual material contained in the document."

Mr Swan submitted that s. 36(1)(a) has two limbs. It must be read as requiring an initial consideration of whether the disclosure of the document would disclose:

(i)"matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded … in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency …"; or
(ii)"matter in the nature 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 an agency …"

In his submission, neither the Full Court of the Federal Court in Harris v Australian Broadcasting Corporation and Others (1984) 5 ALD 564 (Bowen CJ, St John and Fisher JJ) nor Beaumont J in his earlier judgement in Harris v Australian Broadcasting Corporation and Others (1983) 5 ALD 545, considered the meaning of the word "deliberation". While considering the expression "deliberative processes", each confined its consideration to the meaning of the expression "opinion, advice or recommendation". Mr Swan later submitted his searches to the effect that no subsequent case in the Federal Court has expressly considered the meaning of "matter in the nature of, or relating to … deliberation". There are, however, a number of cases in which the Tribunal has, he submitted, considered and applied this expression. It has, he submitted, done so without having considered itself restrained by the dicta of the Full Court of the Federal Court concerning passages headed "Conclusion" in the material under consideration in that case.

To understand Mr Swan's submission, it is necessary to go to the Harris cases. The Australian Broadcasting Corporation ("ABC") had decided that there should be an independent review of its legal department. To that end, it gave terms of reference to Miss Pearlman. She made two interim reports and gave a copy to Ms Harris for comment. Another officer of the legal department sought access to the reports and Ms Harris sought review of the ABC's decision to grant access. Beaumont J had decided that the two interim reports were documents that would disclose matter in the nature of opinion, advice or recommendation and that they had been prepared for the purposes of the deliberative processes involved in the functions of the ABC. Disclosure of the reports would be contrary to the public interest. There was, however, material in the reports which was purely factual and so not exempt by virtue of s. 36(5). Beaumont J concluded that investigative material consisting of the underlying facts as perceived by Miss Pearlman at that stage of her enquiry was purely factual. Except in a few limited instances, the material consisting of recommendations was not purely factual.

The Full Court of the Federal Court canvassed authorities which were from the United States of America and which had considered the distinction between factual and deliberative material. In Montrose Chemical Corporation of California (1974) 491 F (2d) 63, to which it referred, the Court of Appeals, District of Columbia concluded:
"Exemption 5 was intended to protect not simply deliberative material, but also the deliberative processes of agencies. When a summary of factual material on the public record is prepared by the staff of an agency administrator, for his use in making a complex decision, such a summary is part of the deliberative process, and is exempt from disclosure under Exemption 5 of the FOIA.
In reaching the conclusion that the documents here are exempt from disclosure, we do not reject the factual/deliberative test adopted in previous cases. Instead, we develop that test to recognize that in some cases selection of facts or summaries may reflect a deliberative process which Exemption 5 was intended to shelter." (page 567)
The Full Court went on to consider to two other authorities:
"In Washington Research Project Inc v Department of Health, Education and Welfare (1974) 504 F (2d) 238 a summary of facts was held to be exempt from disclosure by virtue of Exemption 5. Relying on the Mint [Environmental Protection Agency v Mint (1973) 410 US 73] case the court said Exemption 5 does not shield from disclosure purely factual, investigative matters as opposed to materials reflecting deliberative or policy making processes. But the court held that the summary before it was part of the deliberative process.
In Vaugh v Rosen (1975) 523 F (2d) 1136 the same court stressed (at 1144) that to be within Exemption 5 the document must be 'a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. Put another way, pre-decisional materials are not exempt merely because they are pre-decisional; they must also be a part of the agency give-and-take – of the deliberative process – by which the decision itself is made'. Later the court said: 'Looking at the evaluative portions of the sample reports themselves, we note nothing in them to suggest that they are anything other than 'final objective analyses of agency performance under existing policy'. While the Commission's evaluating team probably hopes that its analyses will have a salutary effect on agency personnel practices, the evaluative reports appear to be informational in nature. They provide the raw data upon which decisions can be made; they are not themselves a part of the decisional process.'" (pages 567-568)
It then considered a submission that the following types of documents should be excluded from the category of purely factual material under s. 36: summaries (because of the judgmental process involved in compiling them); conclusions expressed as findings by Miss Pearlman; and judgements founded upon Miss Pearlman's expertise or the application of some standard. The Full Court said:
"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." (pages 568-569)
In relation to the particular reports before it, the Full Court concluded:
"A perusal of the first interim report discloses that 'Division 4 – Conclusions' appearing in Pt 1 contains a summary of conclusions involving opinions, advice and recommendations for consideration by the Corporation in its deliberations concerning the matters referred to Miss Pearlman; the rest of the report appears to be factual material. We have given consideration to sections of the report where passages are introduced by such phrases as 'I am of opinion', 'I am inclined to the view', 'I find', or 'I conclude'. However, in all of these cases we consider that the statement made is in the nature of a statement of the facts as Miss Pearlman sees them. In each case the statement is preceded by a recital of particular facts in detail. In our view, a provision such as s 36 of the Freedom of Information Act is to be applied according to common sense and the substance of the matter and not as an exercise in semasiology.
Even adopting this approach one form of words used by Miss Pearlman has caused us some hesitation. In paras 10.4, 17.3 and 18.4 of the first interim report, after a recital of detailed facts, she says: 'I recommend that no further investigation of this complaint should be made for the following reasons …' Again, in para 11.10 she says: 'I recommend that no further investigation of the matter set out in the January memo should be made at this stage.'
These statements, although couched as recommendations, are essentially statements of her intention not to proceed further in her inquiry into the particular topics. There is also an element of true recommendation to the Corporation, in the sense that she is, in effect, inviting their assent or dissent to her proposed course of action. But these are not essentially statements of recommendations to be used by the Corporation for the purposes of its own deliberations. We would conclude that access should be given to these statements. We therefore agree with the orders made by the trial judge governing access to the first interim report.
A perusal of the second interim report discloses that the test [text] contains opinions, advice and recommendations prepared for the purposes of the Corporation's deliberations. There are occasional statements of factual material, but none which is severable in accordance with s 22. The learned trial judge rightly denied access to the text of this report. The Introduction and annexures are different. We agree with his Honour's decision to permit access to the Introduction and annexures 1 and 3. We should add that annexures 2, 4, 5, 6 and 7 appear to us to contain purely factual material. However, in the absence of access to the main text, their bearing is not apparent and, in this sense, they could be misleading. In the result we consider his Honour's order in relation to the second interim report to be correct." (pages 569-570)
It seems to me that there is nothing in the reasons for judgement to confine the approach taken by the Full Court to cases in which it is found that the matter under consideration "would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded … in the course of, or for the purposes of, the deliberative processes …" of the appropriate person. Its approach is to first determine whether the document comes within s. 36(1)(a). That requires a consideration of whether it discloses an opinion, advice or recommendation prepared or recorded, or consultation or deliberation. If there has been, the next matter to consider is whether that opinion, advice or recommendation has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of the agency, Minister or Commonwealth Government. Assuming that to have been the case, pragmatic considerations dictate that the next issue to consider is whether the opinion etc comprises purely factual material within the meaning of s. 36(5). In an appropriate case, it would also be relevant to consider whether s. 36(2) applies for matter falling within that section cannot come within s. 36(1)(a). It is only after a conclusion has been reached that the matter comes within s. 36(1)(a) and is not excluded by s. 36(5) that it becomes relevant to consider the public interest aspect in s. 36(1)(b).
The word "deliberation" has been defined to mean, in so far as those meanings are relevant, "1. The action of deliberating; careful consideration, weighing up with a view to decision. LME 2. spec. Consideration and discussion of a question by a legislative assembly, committee, etc; debate; an instance of this (freq. In pl.). LME. 3. A resolution, a determination; a plan, an intention. M16-E18. …" (The New Shorter Oxford English Dictionary, 1993 and "n. 1. careful consideration before decision. 2. formal consultation or discussion. …" (The Macquarie Dictionary, 3rd edition, 1997).

The word "deliberation" has also been considered in the course of a consideration of the expression "deliberative processes" which is also used in s. 36(1)(a). Several of the earlier authorities were reviewed by Davies J in Re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626. He referred to Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112, with which he agreed and in which the Tribunal had said:

"The term 'deliberative processes' would seem to have a wide ambit. The term was considered by Beaumont J in Harris v Australian Broadcasting Corporation (1983) 50 ALR 551. At 560, his Honour said that '... "deliberation" suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.'" (pages 118-119 and see also page 630 Re Howard)

Davies J referred also to the Tribunal decision in Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588 where it said:

"As a matter of ordinary English the expression 'deliberative processes' appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. 'Deliberation' means 'The action of deliberating: careful consideration with a view to decision': see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does 36(1)(a) come into play." (page 606 and see Re Howard page 630).

In the case of Re James and Others and Australian National University (1984) 6 ALD 687 (Deputy President Hall), it was said that the "deliberative processes" of an agency are its "thinking processes". Sheppard J stated in Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64 at 76-77 that the expression is not to be confined to policy making.

The word "deliberation" should also be considered in the context of the remainder of s. 36(1)(a). That context is that the provision relates to "matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes". Taking first the word "opinion", it connotes "… a view held about a particular subject or point; a judgement formed; a belief …" (The New Shorter Oxford English Dictionary, 1993) or a "1. judgment or belief resting on grounds insufficient to produce certainty. 2. a personal view, attitude, or estimation: public opinion 3. the expression of a personal view, estimation, or judgment: to give an opinion on tariffs. 4. a formal or professional judgment expressed, especially in law: counsel's opinion. …" (The Macquarie Dictionary, 3rd edition, 1997). The word "advice" means "… The way in which a matter is looked at; opinion, judgement … consideration, consultation, reckoning … an opinion given or offered as to action; counsel … The result of consultation; determination, plan …" (The New Shorter Oxford English Dictionary, 1993 and see also The Macquarie Dictionary, 3rd edition, 1997) . The meanings of "recommendation" include "… The action or an act of recommending a person or thing; a recommended course of action etc.; a proposal …" (The New Shorter Oxford English Dictionary, 1993 and see also The Macquarie Dictionary, 3rd edition, 1997). To a certain extent, the meanings of the words "opinion", "advice" or "recommendation" overlap. Whether they overlap or not, all are expressing the notion of consideration followed by the formation of a view either about a certain subject or about a course of action and the transmission of that view.

The ordinary meanings of "consultation" include "… A meeting in which parties consult together, or one person consults another, … " (The New Shorter Oxford English Dictionary, 1993) and "… the act of consulting; conference. … a meeting for deliberation … an application for advice to one engaged in a profession …" (The Macquarie Dictionary, 3rd edition, 1997). Again, there is a notion of consideration inherent in the meaning of "consultation". That consideration may or may not lead to the formation of an opinion, advice or recommendation.

Similarly, the word "deliberation" encompasses the notion of consideration. That consideration may involve consultation or discussion amongst more than one persons. Equally, a person who considers a matter on his or her own can be said to have deliberated upon it. Whether or not the deliberation leads in either case to the formation of an opinion, advice or recommendation is another matter.

In this case, it is claimed that the material in the last two paragraphs on page 13 of the report narrates a consultation or deliberation that has taken place in the meaning of s. 36(1)(a). The first of those paragraphs set out the councillors interviewed in relation to the first term of reference. The second set out those who chose not to speak to the consultants. In the first paragraph on page 14, the name of the person who advised councillors of the consultants' presence at the 17th meeting of the MIGR Council and of their wish to speak with councillors has been claimed to be exempt on the same basis. The name of the person who called an in camera session during that meeting has also been deleted as has the position or status of the person.

Can a simple reference to those whom a person has interviewed in the course of carrying out an enquiry be regarded as a consultation or deliberation? In the case of Booker and Department of Social Security (unreported, AAT No 6189, 13 September, 1990, S A Forgie (Deputy President)), I considered whether a record of an interview conducted by the then Department of Social Security's discrimination investigation officer into a complaint against Mr Booker of sexual harassment could be considered to be a "consultation" within the meaning of s. 36(1)(a). I said:
"23. … 'Consultation' is defined in the Shorter Oxford Dictionary as
'Act of consulting; deliberation; conference'
'Consult' is defined as
'1. v.t. Have deliberations (with person. Or abs.) 2. V.t. Seek information or advice from (person, book, one's watch, etc); take into consideration (feelings, interests); …'
24. It has also been considered in the context of town planning legislation both in the United Kingdom and in Australia. In Rollo v. Minister of Twon and Country Planning (1948) 1 All ER 13 CA per Lord Green, MR, at p 17 it was said:
'A certain amount has been said as to what consultation means. In my view … it means that, on one side, the Minister must supply sufficient information to the local authority to enable them to tender advice and, on the other hand, a sufficient authority to render that advice.'
In Australia, Myers J in Attorney-General v. J.N. Perry Constructions Pty Ltd (1961) 6 LGRA at page 391 said in relation to a provision that a particular determining authority was to 'consult' with the Council before it made a decision that:
'If the two councils or their representatives had met and the Cumberland County Council had made the request at the meeting and it had been agreed to, there would have been a consultation regarding development of the kind specified and I do not think that it was any less a consultation because the same thing was done by correspondence.'
25. Taking these passages into account, it seems to me that, in order for there to be a consultation, there must be something of a two way exchange between at least two parties. The documents which I am presently considering are in the nature of notes of interview or statements of witnesses. As such, I do not consider that they can be regarded as 'consultations' within the meaning of section 36."

This was adopted and refined by the Queensland Information Commissioner in [Unnamed] and Criminal Justice Commission (unreported, S157/93, 21 March, 2000) when he said:

"41. I respectfully agree with the conclusion reached by Forgie DP. I am satisfied that information in a witness statement which merely relates observations of fact concerning an incident does not answer the description of a 'consultation' as that term is used in the context of s.41(1)(a) of the FOI Act.
42. In addition to the definition quoted by Forgie DP, the new Shorter Oxford English Dictionary provides a definition of 'consultation' as a 'meeting in which parties consult together, or one person consults another, spec. on a medical or legal matter'. Definitions of 'consult' in the Shorter Oxford English Dictionary include 'Deliberate, take council, confer, (with someone; about, upon a matter)' and 'Take into consideration, have consideration for, (the interest, feelings, good, etc., of a person or persons)'. In my view, the term is apt to describe a process whereby advice, opinion, or input is sought from a person having regard to a matter relevant to the deliberative processes involved in the functions of government, rather than a situation where a person is merely asked to give a factual account of an incident in which the person has involved."

I do not consider that, in the context of s. 36(1)(a), there is a difference between an investigation of the sort I considered in Booker and Department of Social Security and an enquiry for an evaluation and audit of the sort undertaken by the consultants. Both are directed towards gathering material from individuals for the purpose of obtaining information. The material that is gathered may ultimately be used in a consultation or may even form the basis of an opinion, advice or recommendation. The material itself cannot in any sense be in the nature of a consultation.

Equally, the material itself, without more, cannot be said to be a deliberation. Although in Re Howard Davies J said that "deliberation" suggests "collective acquisition … of facts", he did so in the context of a "collective … exchange of facts". That suggests at least a grouping of material that has been gathered prior to an ultimate decision and some evaluation, assessment or analysis (i.e. some consideration) of that material. It does not suggest the material itself without any consideration of the import of that material in the context of, in this case, the consultants' evaluation and audit.

If, as I have concluded, the material itself cannot be a consultation or deliberation, then it follows that a list of the people from whom that material is to be obtained cannot be a consultation or deliberation in the meaning of s. 36(1)(a). Nor can a list of people who have declined to assist the consultants. It follows that I do not consider that the passages in the four paragraphs on pages 13 and 14 are exempt pursuant to s. 36.

Also claimed as consultation or deliberation is material in the fourth paragraph of page 15 of the report. That material names the councillor who voted with the other councillors regarding Decision No. 95/088. That decision, passed unanimously, was in favour of all councillors declaring their pecuniary interests and remaining present during all of the Budget deliberations as they had done for the 10th budget meeting of the MIGR Council. It also names the councillor who abstained from voting regarding Decision No. 95/099 in the knowledge that the Minister had not made a determination in respect of s. 119.

There may have been a consultation or deliberation by the consultants that preceded their statement that those people had participated, or not participated, in the votes as recorded in that paragraph. Without more, I am not satisfied that revelation of the names of the councillors which may have been arrived at by virtue of a consultation or deliberation is itself revelation of any consultation or deliberation that may have taken place to identify them and their actions. Their names are, however, an expression of the consultants' opinion that these two people had taken the action described in the report. It was their view or judgement (and so opinion) of the facts that had occurred and that it was their view or judgement is reinforced by the inclusion of the relevant passages in the section headed "Our Findings" (document 1.2, page 14). Their opinion had been formed and included in the report for the purposes of the reflective processes which the Commission and the Minister were required to undertake in carrying out their functions under the ATSIC Act i.e. they were recorded for the purposes of the deliberative processes of the Commission and the Minister. That means that the names come within s. 36(1)(a).

Before I consider public interest issues under s. 36(1)(b), however, I must consider whether the names may be described as "purely factual material" within the meaning of s. 36(5). If they are, they cannot be exempt under s. 36. The word "factual" is defined as "… Concerned with or of the nature of fact(s), actual, real, true." (The New Shorter Oxford English Dictionary, 1993) and as "… relating to facts; of the nature of fact; real…" (The Macquarie Dictionary, 3rd edition, 1997).

The word "fact" is defined, in so far as the meanings are relevant, as "… 1 a (An) action, a deed; esp. a noble or brave action, an exploit, a feat. …b An evil or wrongful action; a crime. Now only in before or after the fact, confess the fact. …2. The act of making, doing, or performing. Chiefly in in the (very) fact. … 3 Truth; reality. …4 A thing known for certain to have occurred or to be true; a datum of experience. … 5 A thing assumed or alleged as alleged as a basis for inference. … 6. Law. … Events or circumstances as distinct from their legal interpretation. …." (The New Shorter Oxford English Dictionary, 1993) and "… 1. what has really happened or is the case; truth; reality; in fact rather than theory; the fact of the matter is. 2. something known to have happened; a truth known by actual experience or observation: scientists working with facts. 3. something said to be true or supposed to have happened: the facts are as follows. 4. Law a. an actual or alleged physical or mental event or existence, as distinguished from a legal effect or consequence. Thus, whether certain words were spoken is a question of fact; whether, if spoken, they constituted a binding promise, is usually a question of law. …" (The Macquarie Dictionary, 3rd edition, 1997).

It follows that a reference to "factual material" may, on its ordinary meaning, be either a reference to that material which is concerned with something which is known to have happened or a reference to that material which is concerned with that which is said to be true or is supposed to have happened. The Full Court of the Federal Court in Harris adopted a meaning more consistent with the latter than the former. It agreed with Beaumont J's decision permitting access to the first report made by Miss Pearlman. In doing so, it implicitly agreed with his conclusion that "… investigative material consisting of the underlying facts perceived by Miss Pearlman at that stage of her inquiry …" (page 566) was factual material. Neither the Full Court nor Beaumont J undertook any enquiry as to whether Miss Pearlman's perception of the facts was accurate or reasonable or whether those who had an interest in her perception of the facts had been given an opportunity to refute, explain or comment upon them.

The word "purely" has been defined as meaning "… I In non-physical senses. 1 Simply, exclusively, solely. Also (now chiefly US dial) thoroughly, completely. … : b Really, genuinely …" (The New Shorter Oxford English Dictionary, 1993) and "… in a pure manner; without admixture. 2. merely; entirely … 3. exclusively …" (The Macquarie Dictionary, 3rd edition, 1997). The placement of this word before "factual material" means that the factual material must be just that. It must not be mixed with, for example, conclusions on questions of law.

In the case of the consultants' report, their identification of two councillors and their connection with certain events which took place at the meeting, occurs in a section which purports to record the sequence of events shown by the minutes of the meeting. It appears to meet that description in part but it also incorporates references to the ATSIC Act and to statements made to the consultants by some of those whom they interviewed. Having regard to this section of the report in its entirety, it seems to me that the consultants are purporting to set out their view of what happened. Their view is drawn from a consideration of all the material, written and oral, which was put to them in the course of their enquiries. It is a statement of their perception of the facts and only such a statement. As such, it contains "purely factual material" within the meaning of s. 36(5). In particular, I find that the identification of the two councillors and their connection with certain events at the meeting in paragraph 4 on page 15 is purely factual material and so cannot be exempt for the purposes of s. 36.

Using the same process of reasoning, I have concluded that those passages which identify persons in paragraphs 6 and 7 of page 16 of the report are purely factual material.

The material for which exemption is claimed in paragraphs 1 and 8 on page 16 identifies particular people who have made statements to the consultants about the meeting, their responsibilities and their knowledge of s. 119 of the ATSIC Act and its implications. For the reasons I have given above, I do not consider that the identification of those who have been interviewed or the material gained as a result of those interviews can be regarded as either a consultation or deliberation (see paragraphs 57-62 above).

They are not advice or recommendation as those words are ordinarily used. In a sense, they are an expression of a personal view and so an opinion. It is not, however, the opinion of the consultants but of those being interviewed which is being expressed. What is sought to be exempted is not the opinion but the identity of the person who expressed it. It seems to me that the identity of the person cannot be a matter of opinion. Even if it were, the identity of those who held the opinions in paragraphs 1 and 8 on page 16 is a matter of fact. I have concluded, therefore, that the names in those paragraphs do not come within s. 36(1)(a) but that, even if they did, they cannot be exempt by virtue of s. 36(5).

In the paragraph numbered 2 on page 4 of the report, the name of a person who declared a pecuniary interest but did not leave the room is claimed to be exempt. This paragraph appears under the heading of "Conclusion" in the section headed "Executive Summary". For the reasons I have previously given (see paragraph 64), I consider that the name forms part of the consultants' view of what happened. It is their opinion and was made for the purposes of the Commission's deliberative functions. For the reasons I have also given earlier (see paragraphs 65-69), I consider that this is a purely factual material within the meaning of s. 36(5) and so cannot be exempt pursuant to s. 36.

The concluding sentences in the numbered paragraphs 1 and 2 on page 4 of the report are also claimed to be exempt on the basis that they express the consultants' conclusions from the facts disclosed by the enquiry. Each paragraph sets out, as the consultants said "Councillors who in our view were in breach of s119 …" of the ATSIC Act in relation first to Decision 95/088 and then to Decision 95/099. These are clearly expressions of opinion, coming as they do, under the heading of "Conclusion" and using the language of "view". They were prepared for the purposes of the deliberative processes of the Commission and of the Minister and so come within the documents referred to in s. 36(1)(a).
Do those passages comprise "purely factual material" within the meaning of s. 36(5)? Inherent in the consultants' opinion that certain councillors had been in breach of s. 119 are expressions of opinion not only about fact but about what facts the law requires to be established before a breach of it may be established. That is to say, the opinion is about a mixed question of law and fact. It cannot be said to be an expression of opinion that amounts to "purely factual material". The passages, therefore, are not excluded from the exemption in s. 36 by virtue of the operation of s. 36(5).

That brings me to s. 36(1)(b). Would disclosure of the two passages be contrary to the public interest? What is the public interest in the context of that paragraph? The notion of public interest was considered by Beaumont J in Harris when he said:

"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 (see Sankey v Whitlam (1978) 21 ALR 505; 142 CLR 1; Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 32 ALR 485; 147 CLR 39 at 52)." (page 554)

After considering authorities from the United States of America, Beaumont J continued:

"Given that the public interest is not a static concept, in my opinion, full disclosure of the reports, at this stage, would, on balance, be contrary to the public interest. The unchallenged evidence is that, in submitting her 'interim' reports, Miss Pearlman did not seek information or comment from the applicant. No doubt, this course was adopted for sound practical reasons, presumably in the interests of expedition. But an incomplete inquiry conducted on such a limited footing could only lead to the formation, at that point, of views or opinions of a tentative or provisional kind (cf Blackshaw v Lord [1983] 3 WLR 283 at 301). However, publication of such views or opinions, provisional as they may be, could create a misleading, perhaps unfair, impression in the minds of readers who do not have the benefit, if there be any, of knowing the response of the applicant. The formation of such impressions in the public mind could, in turn, influence the decision-makers in their review of the situation. In my opinion, the provisions of s 36(1) are satisfied in the present case so far as any opinion, advice or recommendation is expressed in the reports." (page 556)

Mr Barlow submitted that the Full Court of the Federal Court had disagreed with his Honour's views in this regard. I do not agree with that submission. As I have set out above, the Full Court focused on what material in the two interim reports comprised "purely factual material". It did not address the issue of public interest and Beaumont J's approach remained unchallenged on appeal.

Beaumont J's approach has been adopted and applied in various cases in the Tribunal. The essential points made by those cases were summarised in Re Kamminga and Australian National University (1992) 26 ALD 585 (O'Connor J, President, Mr Attwood and Mr Julian, Members) when the Tribunal said in considering public interest in the context of paragraph 36(1)(b):

"For para (b) to apply, it is necessary for the tribunal to find that disclosure would be contrary to the public interest. It is not the case that the tribunal has to be satisfied that disclosure is in the public interest: see Re Burns and Australian National University (1984) 6 ALD 193; 1 AAR 456 at 458. Deciding whether disclosure is contrary to the public interest requires a balancing of competing interests including the public interest in the applicant's right to know (Re Peters and Department of Prime Minister and Cabinet (No 2) (1984) 5 ALN N306: Re Burns and Australian National University (1984) 6 ALD 193; 1 AAR 456), which is a different thing to the applicant's personal interest in knowing. The tribunal must balance this against any adverse effect disclosure might have on the proper working of government or its agencies: Harris v Australian Broadcasting Tribunal (1983) 50 ALR 551; unsuccessfully appealed on other grounds at (1983) 51 ALR 581. The cases discuss a number of ways in which such an adverse effect might arise. However, it is necessary to consider the circumstances of each case. In the case of the university the public interest includes the maintenance of a high standard of scholarship. Considerations which apply to documents created for the purpose of policy making at a high level are not applicable in the present case." (page 588)

As Mr Eldridge stated in his affidavit, the purpose of obtaining the consultants' report was to obtain an independent analysis and assessment of the circumstances in order to assist those responsible for decision making under the ATSIC Act to discharge their responsibilities. He acknowledged that there are public interest considerations that would be served were the documents to be released. Those reasons include the general public interest in persons obtaining access to documents of government agencies and in their being able to evaluate the administration of those agencies and of those participating in their decision making. I would add to that there is a public interest in ensuring that those who hold public office and who have responsibilities for the expenditure or granting of public money do so in accordance with their legal obligations.

There is also a public interest in the proper and appropriate consideration of complaints about the manner in which the holders of elected offices carry out their duties and their fitness for office. That public interest does not extend to a consideration of matters touching only upon their private lives and not having an impact upon their duties or their fitness. Again, the line between a person's public life and private life can be difficult to draw.

It is apparent from the vetted copy of document 1.8 that there were those who expressed their "absolute shock" at the person's conduct and who were moved to write to the then Minister for Aboriginal and Torres Strait Islander Affairs to call for her dismissal. That was their prerogative and the Minister was the appropriate person to approach for s. 40 sets out the grounds upon which he may suspend a person or terminate their appointment. Provided the Minister follows the procedures set out in that section, he "… may suspend a Commissioner from office because of misbehaviour or mental incapacity." (s. 40(1)). That it was within their prerogative and that it was within the Minister's powers is not determinative of whether it is in the public interest to disclose all of the person's personal affairs to public scrutiny.

The unvetted copy of document 1.8 sets out the full circumstances of the allegations regarding the person's behaviour and that person's responses to those allegations. It also sets out Mr Curlewis's view as to the manner in which the person conducted herself and the circumstances in which she did so. Mr Curlewis goes on to give an opinion as to whether the alleged conduct breached the Commission's Code of Conduct and whether it amounted to misbehaviour for the purposes of the ATSIC Act. His enquiry was restricted to matters in relation to which either the Commission or the Minister had power to take action against the person should the matters contained in the allegations prove to have foundation.

The behaviour at the heart of the allegations is said to have occurred in the course of an annual general meeting of a community body. The community body and its work are important. It is important to a segment of the public and that segment comprises those members of the public who have some involvement with it and its work. Their involvement may come about because of the roles that they play in that community body and its work or the use they make of it or benefit they receive from the services it offers. The issues raised at the annual general meeting were of concern to that segment of the public. They were not issues that in themselves could be said to be of interest to the general public.

Is the person's behaviour in relation to the consideration of those issues, which are not of themselves of interest to the general public, of public interest? This raises two aspects. The first stems from the fact that there are those who thought that the person's behaviour was relevant to the manner in which she carried out her duties and responsibilities as an elected officer holder. They are the people who wrote to the Minister. It is in the public interest that their concerns were, or are, properly investigated and considered by the Commission and the Minister.

The second aspect relates to the public interest in ensuring that the holders of elected offices perform their duties and carry out the responsibilities appropriately. I have considered the ambit of this above (see paragraphs 257-258). Certainly, the issues discussed at the meeting of the community body were not of themselves of public interest. They were issues which concerned the person and her family just as they concerned the other persons who attended the meeting and their families. That is to say, they were issues which did not concern the person and her family alone. The manner in which a person conducts him or her self in relation to such issues at a meeting of a segment, albeit a small segment, of the public is present, does reflect on the manner in which he or she may conduct him or herself in carrying out his or her duties or responsibilities as an elected office holder. The manner becomes a matter of public interest.

It seems to me that when a person holds an elected office, the public interest that I have identified outweighs the public interest that a person's privacy be protected. Disclosure of the personal information about the person would not be unreasonable in the circumstances of this case. I emphasise that it is not unreasonable in the circumstances of this case for it is easy to envisage circumstances in which the public interest in protecting a person's privacy would outweigh any public interest arsing by virtue of the office he or she holds.

For these reasons, I have concluded that the information, which I have accepted is personal information on the 41 pages of document 1.8 and which sets out Mr Curlewis's opinion on the behaviour of the person whose behaviour was under consideration and reports of the views of other persons on the behaviour and character of that person, is not exempt pursuant to s. 41 of the FOI Act.

Document 3: an audit of financial statements provided by the Canteen Creek Owairtilla Association Incorporated for the period 1 July, 1995 to 31 January, 1996, review and investigative report with annexures, dated 16 April, 1996, by John J. Trezona, Chartered Accountant

Outline of Document

Mr John J. Trezona, Chartered Accountant, was asked by the Commission to audit the financial statements provided by the Canteen Creek Owairtilla Association Incorporated ("CCO Association") for the period 1 July, 1995 to 31 January, 1996. The Commission also asked him to include a review and investigative report on particular items. Mr Trezona stated in the covering letter to his report that his audit had been conducted in accordance with Australian Auditing Standards. It is apparent from the vetted copy of document 3 that he found that the accounts presented to him were not in a format suitable for audit. He also concluded that he had not been given all of the information and explanations he required, he was unable to determine whether proper accounting, and other, records had been kept and were unable to express an opinion as to whether the CCO Association's financial statements for the seven month period had been properly drawn up.

Claim for exemption under section 36

Pages 1and 2 of Mr Trezona's report sets out an executive summary. All, apart from the heading, is claimed to be exempt on the basis that it discloses his conclusions from the facts that which his investigation has disclosed. Those conclusions, it is submitted, constitute his opinion as to the significance of, and the inter-relationship between those facts. His opinions were formed for the purposes of the deliberative processes of the Commission. I agree that those pages come within s. 36(1)(a).

The matters dealt with are, in part, purely factual matters but they extend beyond that. In expressing his opinion as to what has happened, Mr Trezona has at times also expressed his opinion as to the adequacy or otherwise of certain steps or actions in certain matters. That necessarily involves a judgement as to what is required in the circumstances and an assessment of the steps or actions against the requirement. It goes beyond the expression of an opinion as to what has actually happened. I note that a similar approach was adopted by Davies J in Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626 when he said of documents which were addressed to the Treasurer and which would disclose deliberation that took place in the Treasury with respect to forming the 1984/85 Budget:

"… In my opinion, the subject documents do not contain purely factual material. Estimates as to what will happen if certain changes are made to the taxation laws and rates involve elements of judgment or assumption. They are concerned with the future, not with facts. As the Tribunal said in Re Waterford and The Treasurer (No 1) (1985) 7 ALD 93; ADMN 90-001 at 61,007, '… I consider that projections or predictions or likely future revenue are a long way from being capable of being considered as facts or as "purely factual material" according to ordinary conceptions of the use of language.'" (page 632)

The information in the three pages is a mixture of purely factual matter and an assessment of what has happened against what is required. The information which is not purely factual material is:

(1)page 1, 1st paragraph, 1st sentence;
(2)page 1, 2nd paragraph, 1st sentence from "The" to the 1st comma;
(3)page 2, 3rd paragraph, 2nd sentence beginning "These";
(4)page 2, 4th paragraph, 3rd sentence; and
(5)page 2, 6th paragraph;

This means that the remaining information on pages 1 and 2 of Mr Trezona's report is purely factual material and is not exempt pursuant to s. 36. That means that I must consider whether the disclosure of the information in the passages which is not purely factual would be contrary to the public interest. In his affidavit, Mr Eldridge raised issues similar to those he had raised in relation to document 1.2 (Exhibit 3, paragraphs 111-122). He said in his affidavit in relation to document 3 that it "… is predecisional and contains statements which may or may not have a basis in fact. Although the report refers to many matters of fact, those references consist generally of the views of Mr Trezona on those facts and cannot be described as facts which are uncontentious." (Exhibit 3, paragraph 117).

Later in his affidavit, Mr Eldridge said that, at the time the Commission made its original decision on Mr Smith's application, the Commission was still in the process of developing and implementing strategies to address the findings in Mr Trezona's review (Exhibit 3, paragraph 127). That was in August, 1997. By November, 1999 when Mr Eldridge swore his affidavit, "due process" had been completed. The CCO Association had by then undergone a change in the membership of its Board and its administration together with changes in training (Exhibit 3, paragraphs 127 and 128). These statements would seem to suggest that, contrary to the earlier statement in his affidavit, the Commission had accepted Mr Trezona's findings. Perhaps it is not so much a case of inconsistency but a case in which findings in Mr Trezona's report were addressed in general terms even if each was not accepted in its entirety.

It is clear from Mr Eldridge's affidavit that the Commission considers that it has addressed whatever problems arose from the accounts and accounting procedures adopted by the CCO Association. That it has done so is in the public interest but does that extinguish the public interest in knowing the problems identified by the auditor? There is a public interest also in bodies being able to proceed with their business in an orderly and settled manner whether they receive public funds or not. These matters must be balanced against other public interests. The public has an interest in knowing the manner in which public funds are used. That extends to knowing the manner in which public funds granted by the Commission are used by those to whom they are granted. It extends to knowing not only the purpose for which the public funds are used but also the reason they are used for that purpose and whether they achieve that purpose. Where public funds are used to acquire assets, there is a public interest in knowing whether those assets are maintained and, if they should be disposed of, that they will be appropriately disposed of for an appropriate value. Those public interests remain current even after the public funds have been expended. They remain current even if the procedures in place for accounting for that expenditure have been altered.

I accept that the material in Mr Trezona's report may not reflect the facts as finally determined or the reasons behind any decision that has been made by the Commission. Whether the disclosure of the information in those circumstances would create misleading impressions or lead to unnecessary speculation, debate and confusion, is another matter. I have already considered the effect of speculation, debate and confusion upon the decision making processes of the Commission and generally (paragraphs 84-85). It seems to me that the effect is the same in the context of the disclosure of Mr Trezona's opinion on certain matters raised by his audit as it is in the context of disclosure of information in document 1.2.

Having balanced the competing public interests, I find that disclosure would not be contrary to the public interest. The matters considered by Mr Trezona and on which he has expressed his opinion, concern the expenditure of public money. As a chartered accountant who is a registered auditor, they are matters upon which he is able to express an expert opinion. The public interest in ensuring that public monies are properly expended and accounted for outweigh the public interest in enabling a business to proceed in a settled and orderly manner. The context in which any deficiencies occurred and steps taken to rectify any accounting deficiencies are relevant in assessing the information contained in Mr Trezona's report but they do not outweigh the public interest I have identified. I have concluded, therefore, that the information I have identified in paragraph 269 above are not exempt pursuant to s. 36.

Page 4 and all but the first two lines of the final paragraph on page 3 of Mr Trezona's report are a different matter. They express Mr Trezona's opinion on issues he has considered. It is not purely factual material that has been prepared for the deliberative purposes of the Commission and so comes within s. 36(1)(a). Mr Trezona has considered a range of matters that fall outside his audit and outside his apparent qualifications. They are not matters upon which he is qualified to express an expert opinion. In view of that, the balance of public interests alters. It is one thing to consider the effect of release of the information upon public debate, confusion and speculation when the information is the view of a person with the appropriate expertise to form that view and another thing when it is not. Views expressed by those who do not have appropriate expertise are themselves effectively speculation. Subsequent speculation and debate would be based upon speculation. There is very little, if any, interest in speculation on speculation and it is outweighed by the public interest in permitting the CCO Association to proceed to fulfil its functions now that its accounting procedures have been addressed. In these circumstances, disclosure of the information is contrary to the public interest. Consequently, the information on page 4 and all but the first two lines of the final paragraph on page 3 of Mr Trezona's report are exempt pursuant to s. 36. The first two lines on page 19 appearing above the page number are also exempt for the same reasons.

Mr Trezona stated that a person had purchased a John Deer tractor in a dilapidated stated and a quad motorbike with certain missing parts. That person advised Mr Trezona that he had made out his cheque for $3,000.00. Exemption has been claimed in respect of the name written on the cheque by the person. This is an opinion prepared for the Commission's deliberative processes but it is purely factual material and so not exempt pursuant to s. 36.

The last paragraph on page 19 reveals the name of a person whom Mr Trezona questioned about the need to attend to relevant requests. For the reasons given in the previous paragraph, I do not consider that the information is exempt pursuant to s. 36.

The first two paragraphs on page 3 set out Mr Trezona's recommendations. They are opinion coming within s. 36(1)(a). Would their disclosure be contrary to the public interest? Mr Trezona has made recommendations based upon his findings and upon his opinion as to what was appropriate. The Commission would be required to consider the issues raised by Mr Trezona but would need to do so against a wider background. That wider background is not necessarily addressed by Mr Trezona. For the reasons I have given at paragraphs 113-114, I have concluded that disclosure of Mr Trezonas' recommendations regarding the limited issues before him could be likely to create a misleading impression and cause speculation and debate for which there may, or may not, be a proper foundation. This consideration outweighs those favouring disclosure. Therefore, I have concluded that disclosure would be contrary to the public interest and the information in the first two paragraphs on page 3 is exempt pursuant to s. 36.

In the first paragraph on page 5 of his report, Mr Trezona wrote that he had queried certain persons about certain transactions. He set out the persons and the transactions. Exemption is claimed under s. 36 in respect of those whom he interviewed. This is information disclosing purely factual material and so is not exempt pursuant to s. 36. Other information claimed to be exempt but not exempt for the same reason is that in the sixth paragraph on page 6.

So too is the information in the first paragraph on page 6. It is information disclosing facts as told to Mr Trezona or as found to be so by Mr Trezona. Other information claimed to be exempt but not exempt for the same reason is:

(1)Report, page 17, 2nd paragraph and page 18, 1st paragraph; and
(2)Report, page 18, 4th and 5th paragraphs.

Claim for exemption under section 40

Section 40 of the FOI Act, in so far as it is relevant in this case, provides that:

"(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a)prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;
(b)prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;
(c)…
(d)have a substantial adverse effect on the proper and efficient conduct of the operations of an agency;
(e)…

(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest."

The first question which must be answered before I can consider whether the documents come within paragraphs 40(1)(a) or (b) is what is meant by the words "tests, examinations or audits" used in paragraphs 40(1)(a) and (b). In Marco Ascic v Australian Federal Police (1986) 11 ALN N184, the Federal Court considered examination papers, which clearly came within the term "examinations", and so had no need to consider the meaning of the words further. I have looked to the ordinary meanings of those words in so far as those meanings are relevant. "Test" means "… That by which the existence, quality, or genuineness of anything is or may be determined …". "Examination" means "… The action of testing or judging by a standard … Investigation by inspection or experiment …". "Audit" means "… Official examination of accounts with verification by reference to witnesses and vouchers …" (The New Shorter Oxford English Dictionary, 3rd edition, 1993).

It seems to me that Mr Trezona's audit is clearly an audit within the meaning of s. 40 for there was an examination of the CCO Association's accounts with a view to verifying them. His audit was requested by the Commission for the purposes of enabling it to carry out its wider functions of monitoring the effectiveness of programs for Aboriginal persons and Torres Strait Islanders. The OEA's powers extend to evaluating and auditing the operations of a body corporate that has received a grant or loan from the Commission. The evaluation or audit extends only to an evaluation or audit concerning that grant or loan. Mr Trezona's audit, then, is relevant to both the procedures and methods by which the Commission conducts examination or audit and the manner in which it carries out a part of it functions.

Is it the case that disclosure of the information in Mr Trezona's audit "would, or could reasonably be expected to … prejudice the effectiveness" of those procedures or methods or a "… substantial adverse effect on the proper and efficient conduct of the operations …" of the Commission? The word "would" requires no clarification. The words "could reasonably be expected to" appear in a number of other sections of the Act including s. 43. That section was considered by the Full Court of the Federal Court in Attorney-General v Cockcroft (1986) 64 ALR 97 (Bowen CJ, Sheppard and Beaumont JJ). A majority of the Tribunal had earlier concluded in relation to sub-paragraph. 43(1)(c)(ii) that:

"The next question to be asked is whether the disclosure of the information could reasonably be expected to produce certain consequences. This does not mean that those consequences must be regarded as reasonable from a public interest point of view. It means whether it is more probable than not, looked at from an objective point of view, that the consequences will flow. This approach was broadly adopted by the Tribunal in Re Actors' Equity Association of Australia and Australian Broadcasting Tribunal (1985) 3 AAR 1" (pages 105-106)

Bowen CJ and Beaumont J said in their joint judgement:

"It was submitted on behalf of the applicants that the majority of the Tribunal erred both in the construction of s 43(1)(c)(ii) and in the failure to hold that provision to be applicable in the present circumstances. In aid of the submission, reference was made to some observations of Woodward J as to the meaning of a similar provision, s 37(1) of the Act, in News Corporation Ltd v National Companies and Securities Commission (1984) 57 ALR 550 at 561-2: `I think that the words "would, or could reasonably be expected to ... prejudice" mean more than "would or might prejudice". A reasonable expectation of an event requires more than a possibility, risk or chance of the event occurring. On the other hand, if the legislature had required a probability of prejudice it could easily have said so. In my view it is reasonable to expect an event to occur if there is about an even chance of its happening and, without attempting to suggest words alternative to those chosen by the draftsman, it is in that general sense that the phrase should be read.'

In our opinion, in the present context, the words 'could reasonably be expected to prejudice the future supply of information' were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321 per Gibbs CJ and Mason J." (page 106)

Sheppard J placed greater emphasis upon the meaning of the word "expect" than on the word "reasonably" for he did not:

"... feel able to derive from the presence of the word 'reasonably' in the relevant expression a great deal of assistance. The difficulty is to give full weight to the meaning of the word 'expected'. It is only then that one can turn one's mind to the question of the significance of the qualification of it by the word 'reasonably'. The words are expressed in the passive voice - 'could reasonably be expected'. What is required is the decision-maker act reasonably. For the document to be exempt his conduct must be taken to be that of the reasonable man. But then comes the difficulty. So acting, the decision-maker must expect that disclosure of the document could prejudice the future supply of information. In my opinion he will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply. But, stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information." (pages 111-112)

In support of the submission that certain passages of document 3 are exempt, Mr Eldridge stated in his affidavit that:

"125. I decided that the documents are also exempt from disclosure under section 40(1)(a)(b) and (d) of the FOI Act, on the basis that disclosure could reasonably be expected to prejudice the Commission's ability to conduct reviews and audits of the organisations it funds. Restrictions on ATSIC's capacity to obtain information that would arise as a result of disclosure of material such as this would seriously hamper ATSIC's commitment to ensure accountability of these organisations and would therefore affect the proper and efficient conduct of the Commission's operations.
126.     There is a need to preserve the confidences of those who have provided information to the reviewer. Disclosure would prejudice ATSIC's capacity to implement the recommendations in the report in relation to alleged fraud on the part of certain officers of the Association audited and premature disclosure of unproven allegations would be unfair to such persons. Such disclosure would accordingly have a substantial adverse effect on ATSIC's operations.
127.     At the time of the original decision, the Aboriginal and Torres Strait Islander Commission was still in the process of developing and implementing strategies to address the findings in the review. The decision maker formed the view that the release of the report would interfere with the administrative processes, particularly in the area of 'due process' between ATSIC and the Canteen Creek Owairtilla Association Inc.
128.     This process has since been completed. However, I would note that the organisation concerned has undergone a transition as a result of the review and follow up remedial process, with a change in Board membership and administration and training, into a performing asset for the community. This of course is the whole purpose of the audit and review process. Our key concern here is that, if organisations and individuals were aware that material provided in confidence to auditors and reviewers was likely to become publicly available, potential contributors to the review process would be more inhibited and the value of the information gathered would decline, rendering our task of improving outcomes for communities that much more difficult to achieve.
129.     Thus, although the operations of ATSIC have worked effectively in this instance to produce a beneficial outcome from the audit process, such a result would be less likely to have been achieved if the material sought had been disclosed before the process was complete. If a precedent were to be established that, as a general practice, such material might ultimately be disclosed after successful outcomes have been achieved, community knowledge of that general practice would soon become widespread and would inhibit the voluntary involvement of individuals generally in further investigations concerning other matters." (Exhibit 3)

Mr Eldridge then set out the competing public interests which he had identified in relation to s. 36 and relied upon them also (Exhibit 3, paragraphs 13-136).

At the foundation of Mr Eldridge's reasons is that the information was provided to Mr Trezona in confidence and that the information could not be obtained if it were known that confidences would not be honoured. He referred to this also later in his affidavit when he addressed the Commission's claim under s. 45. Mr Eldridge said:

"The material has acquired a confidential nature by reason of the circumstances that it relates to matters which were being investigated without public hearings and that the providers of the material were unlikely to wish that it be generally known, or known to persons other than the investigators and others present at the interviews or consultations, that they were providing the material to the investigators; or consists of the fact that the provider of the information provided it to the investigators." (Exhibit 3, paragraph 145)

Mr Eldridge has made his statement in good faith. Since 1990, he has had responsibility at various times for matters such as the formulation and management of the Commission's funding and grant management procedures. There is, however, no evidence that he had any involvement with the audit or review of the CCO Association or was in a position to know the basis upon which the information was obtained. Mr Trezona has not referred to confidentiality in his report or in the letter accompanying his report. He has referred to conversations with certain people in his report. Some of those people hold a position of some sort in relation to the CCO Association and its work. Others do not but have had some dealings with it. There is no statement that any of the conversations was conducted on a confidential basis.

The information Mr Trezona was given related to certain transactions made by the CCO Association. Those transactions related either directly or indirectly to the expenditure of grant funds it had received. Restrictions found in s. 90 of the ATSIC Act regarding the disclosure of certain information regarding grants does not extend to the expenditure of those grant funds. Despite Mr Eldridge's belief, on the basis of the evidence I have, I am not satisfied that the information was given to Mr Eldridge in confidence.

In most instances, the exemption claimed under s. 40 is in respect of the names of certain people who have given information or been found by Mr Trezona to be involved in certain transactions. Given that I am satisfied that the information was not provided in confidence and given the powers that could be given under s. 78 of the ATSIC Act if there were difficulties in obtaining information in the future, I am not satisfied that disclosure of the information would, or could reasonably be expected to, lead to any of the outcomes identified in s. 40(1)(a), (b) or (d).

As Mr Eldridge has said, certain passages of the information sought to be exempted concern allegations of fraud. I have already decided that it is exempt pursuant to s. 36 and do not consider it further in relation to s. 40.

Claim for exemption under section 41

Exemption was sought under s. 41 in relation to the names of certain persons. In most instances, the surrounding text has been disclosed and it is only the name of the person who has either disclosed certain information or who is said to have been involved in a transaction that is sought to be exempted. The only exception to this is at page 4 in lines 12, 15, 19 and 23. I have already decided that the whole of the paragraphs in which those names appear is exempt pursuant to s. 36 and I will not consider them further in this context.

The information about each person is personal information as it is information about each of them. That is so whether the information is true or not. Mr Eldridge stated in his affidavit that the public interest is served by the public's being given information as to the context in which each person is mentioned in Mr Trezona's report but not in its being given information as to the name of the person. He continued:

"… His or her right to privacy in not having his or her name publicly associated with that context, and not having other related aspects of his or her conduct disclosed, outweighs, in my opinion, the public interest in disclosure of those things and the views of others (including the report's author) about them.
139. Disclosure of the fact that enquiries have been made by or on behalf of an agency in the context in which they were made in this case is unreasonable. The fact that enquiries have been made may raise questions as to why they were made in the first place. If the association of individual's names with the conduct of such enquiries becomes revealed to the world at large, the individuals are not in a position in which they can respond, explain or clear their names of any adverse connotations which may be suggested by the fact that enquiries have been conducted and that their names have been associated with such enquiries." (Exhibit 3)

Where the information discloses the name of a person who has given information to Mr Trezona or is revealed as having certain transactions with the CCO Association or its office holders or staff, I agree with Mr Eldridge. It would be an unreasonable invasion of their privacy to reveal their identities simply because there is an audit of the affairs of a body with which they have had some dealings. Information as to the nature of those dealings is revealed but, without any evidence to suggest anything other than proper dealings with the CCO Association, its office holders and staff, I consider that disclosure of their names is an unreasonable disclosure of their personal information. The Commission has not claimed exemption in relation to any of those names.

Where the personal information is that of an office holder or member of staff of the CCO Association, it seems to me that the balance is different. Office holders and staff members have certain responsibilities in relation to the management of the CCO Association's assets. They have those responsibilities not by virtue of their being private persons but by virtue of their being office holders and staff members. When their responsibilities as office holders and staff members extend to the expenditure of public money, as it does when the Commission gives a grant, the manner in which they carry out those responsibilities becomes a matter of public interest. That interest transcends their right to privacy for there is a public interest in knowing that those who are entrusted with public money expend it and account for its expenditure appropriately. It follows that I do not consider that the names of office holders or staff members revealed in Mr Trezona's report are exempt pursuant to s. 41.

Claim for exemption under section 45

For the reasons I have given above, I do not consider that the information was provided to Mr Trezona in confidence. Therefore, I am not satisfied that it is exempt pursuant to s. 45.

CONCLUSION

For the reasons I have given, I:

1.affirm the decision of a delegate of the respondent dated 3 October, 1997 in so far as it decided, in relation to document 1.2 that:
(1)the information claimed to be exempt and described below is exempt pursuant to s. 36 of the Freedom of Information Act 1982:
(a)the information in the first two lines of text following the heading "Conclusion" on page 7 of the report;

(b)the information under the heading of "Recommendation" on page 8 of the report;

(c)the information in the first two lines of text following the heading "Conclusion" on page 29 of the report;

(d)the information under the heading of "Recommendation" on page 29 of the report;

(2)the information claimed to be exempt and regarding certain persons as described below is exempt pursuant to s. 41 of the Freedom of Information Act 1982:
(a)Person B, Appendix A06, page 4, lines 5, 16 and 31;
(b)Person B, Appendix A06, page 6, lines 15 and 28;
(c)Person A, Appendix A16-5, page 4, line 40;
(d)Person B, Appendix A06, page 7, line 13;
(e)Person B, Appendix A16-2, page 4, lines 15, 26, 39, 41 and 42;
(f)Person B, Appendix A16-5, page 5, lines 15, 20 and 28;
(g)Person B, Memorandum to Union Delegate (2 pages), page 2, lines 2, 6, 7 and 9;
(h)Person B, Brief of events (2 pages), page 2, line 14;
(i)Person O/Business P, Appendix A16-2, page 1, lines 25, 28, 33, 36 and 42;
(j)Person O/Business P, Appendix A16-2, page 2, lines 1, 8 and 12;
(k)Person O/Business P, Memorandum (1 page, 22 typed lines of text), lines 7, 10 and 12; and
(l)Person O/Business P, Memorandum (1 page, 21 typed lines of text), lines 9 and 13.

(3)the information claimed to be exempt and described below is exempt pursuant to s. 45 of the Freedom of Information Act 1982:
(a)the information, preceded by the word "the" and followed by the words "had directed" in line 12 on page 14 of the report;

2.affirm the decision of a delegate of the respondent dated 3 October, 1997 in so far as it decided, in relation to document 1.6 that:
(1)the information claimed to be exempt and described below is exempt pursuant to s. 36 of the Freedom of Information Act 1982:
(a)the information in the last two paragraphs on page 34 and the two paragraphs on page 35 of the report;

(2)the information claimed to be exempt and described below is exempt pursuant to s. 42 of the Freedom of Information Act 1982:
(a)the information in Annexure D of document 1.6 being all but the letterhead, addressee and signature block of a letter from R.F.G. Finlayson and Associates to the Chairperson of the GR Council and is dated 27 April, 1994.

3.affirm the decision of a delegate of the respondent dated 3 October, 1997 in so far as it decided, in relation to document 1.8 that:
(1)the information claimed to be exempt and described below is exempt pursuant to s. 36 of the Freedom of Information Act 1982:
(a)Report, page 12, 1st, 2nd and 3rd paragraphs.

4.affirm the decision of a delegate of the respondent dated 3 October, 1997 in so far as it decided, in relation to document 3 that:
(1)the information claimed to be exempt and described below is exempt pursuant to s. 36 of the Freedom of Information Act 1982:
(a)Report, page 3, 4th paragraph excluding first two lines beginning "During" and concluding "other";
(b)Report, page 4;
(c)Report, page 19, 1st two lines;
(d)Report, page 3, 1st two paragraphs;

5.otherwise set aside the decision and substitute a decision that:
(1)except in so far as it is specified in paragraphs 1- 4 of this decision, the information claimed to be exempt in documents 1.2, 1.6, 1.8 and 3 is not exempt from disclosure pursuant to the Freedom of Information Act 1982.

I certify that the two hundred and ninety eight preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed:          ..........................................
Dates of Hearing   29, 30, 31 November, 1 December, 1999
Date of Decision   22 June, 2000
Counsel for the Applicant             Mr K A Barlow
Solicitor for the Applicant            Thynne & Macartney
Counsel for the Respondent         Mr M Swan
Solicitor for the Respondent         Australian Government Solicitor

[2000] AATA 512

22 June 2000