Re The Australian and Department of Families, Community Services and Indigenous Affairs and Cape York Land Council
[2006] AATA 755
•5 September 2006
CATCHWORDS – FREEDOM OF INFORMATION – agency – prescribed authority – whether established by, or in accordance with the provisions of an enactment – Cape York Land Council not an agency.
PRACTICE AND PROCEDURE –application to be joined as a party – whether interests affected by decision – whether interests affected by decision to claim particular exemptions – application granted in relation to whether exemption properly claimed under ss 42 and 43 of the Freedom of Information Act 1982.
Aboriginal Councils and Associations Act 1976 ss 3, 43, 45, 46 and 53
Aboriginal Land Rights (Northern Territory) Act 1976 ss 3, 4, 5, 7, 21, 22 and 23
Acts Interpretation Act 1901 s 22
Administrative Appeals Tribunal Act 1975 ss 2A, 27 and 30(1A)
Coal Industry Act 1946 s 5
Companies Act 1862 (UK) s 18
Corporations Act 2001 ss 117, 118 and 119
Development Act 1993 (SA)
Development Allowance Authority Act 1992 s 119
Employment Services Act 1994
Endangered Species Protection Act 1992 s 4
Environment Protection (Alligator Rivers Region) Act 1978 s 3
Environment Protection (Northern Territory Supreme Court) Act 1978 s 3
Freedom of Information Act 1982 ss 3, 4, 7, 11, 15, 16, 20, 22, 24, 24A, 26A, 27, 27A, 29, 32, 33, 33A, 37, 40, 41, 42, 43, 44, 54, 55, 56, 58, 58F, 59 and 59A
Industrial Relations Regulations r 98
Legislation Act 2001 (ACT)
Legal Practitioners Ordinance 1970 (ACT) s 6
Legal Profession Act 2006 s 576
Migration Act 1958 ss 353 and 420
Native Title Act 1993 s 203DF
Social Security (Administration) Act 1999 s 141
Therapeutic Goods Act 1989
Allan v Transurban City Link Ltd (2001) 208 CLR 167; 183 ALR 380
Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71
Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; 112 ALR 627
Comptroller-General of Customs v Members of the Administrative Appeals Tribunal (1994) ALR 140, 32 ALD 463
Courtney v Peters (1990) 27 FCR 404; 98 ALR 645
Edwards v Australian Securities Commission and Others (1997) 72 FCR 350; 142 ALR 455
Jarraman Arts Aboriginal Corporation v Tourism Australia (No 3) [2005] FCA 983
Joint Coal Board v Cameron (1989) 24 FCR 204
Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611; 162 ALR 577
Mount Barker Properties Ltd v Mount Barker District Council And Another (2001) 115 LGERA 190
Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74, 50 FLR 1
Re Federated Furnishing Trade Society of Australasia (1993) 113 ALR 137
Re Ford and Child Support Registrar [2005] AATA 860
Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment (1986) 10 ALD 262
Re Peters and Department of Health and Aged Care (1999) 56 ALD 561
Re Queensland Investment Corporation and Minister for Transport & Regional Services and Shopping Centre Council of Australia (2004) 84 ALD 717
Re Sobczuk and Carnarvon Medical Service Aboriginal Corporation (1999) 58 ALD 727; 31 AAR 7
Salomon v Salomon [1897] AC 22
Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505
State of Victoria v Seal Rocks Pty Ltd (2001) 3 VR 1
Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324
United States Tobacco Company v Minister for Consumer Affairs and Others, Unreported 15 September 1998, No. G158 of 1988
DECISION AND REASONS FOR DECISION [2006] AATA 755
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/990
GENERAL ADMINISTRATIVE DIVISION )
Re THE AUSTRALIAN
Applicant
AndDEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
Application by:
CAPE YORK LAND COUNCIL
To be joined as a party
DECISION
Tribunal: Deputy President S A Forgie
Date: 5 September 2006
Place: Melbourne
Decision:The Tribunal:
1.the Cape York Land Council be a party to proceeding No V2005/990 but only in relation to presenting evidence and making submissions in relation to whether the report, or parts of it, should be exempt under ss 42 and/or 43 of the Freedom of Information Act 1982.
S A FORGIE
Deputy President
REASONS FOR DECISION
The Department of Families, Community Services and Indigenous Affairs (DFCSI) has refused to give The Australian access to a copy, without deletion, of a report dated June 2005 and entitled “Report to the Minister for Immigration and Multicultural and Indigenous Affairs in relation to the Cape York Land Council” (report). The report followed an investigation under s 203DF of the Native Title Act 1993 into the way in which the Cape York Land Council (CYLC) has performed its functions and exercised its powers as a native title representative body under that legislation.
Before the substantive issues raised by its application can be considered under the Freedom of Information Act 1982 (FOI Act), I must decide:
whether the CYLC is an agency within the meaning of the Freedom of Information Act 1982 (FOI Act);
whether CYLC may, if joined as a party, contend that all or part of the report is exempt under the FOI Act under s 40 as well as under ss 42 and 43; and
whether the CYLC should be joined as a party to proceedings.
I have decided that the CYLC is not a prescribed authority and so is not an agency that can seek to protect disclosure of its operations under s 40 of the FOI Act. With regard to its application to be joined as a party, I have decided that the CYLC is a person whose interests are affected by the DFCSI’s decisions in relation to ss 42 and 43 of the FOI Act. I have exercised my discretion to join the CYLC as a party to The Australian’s application but it is permitted to participate in the proceedings only to the extent of producing evidence and making submissions in relation to whether the report should be exempt under ss 42 and/or 43.
BACKGROUND
The Australian applied for review of a decision deemed to have been made[1] by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) refusing its request under the FOI Act.[2] After consultation with Mr McKinnon, The Australian’s FOI Editor, its request was limited to the final report prepared by a consultant regarding an investigation and report on the CYLC. After the Tribunal allowed DIMIA further time within which it could make a decision,[3] that Department consulted third parties under ss 59[4] and 59A[5] about release of the report. Among those consulted was CYLC, which has objected to the disclosure of the whole report on the basis of its being exempt under s 43 or, alternatively, that parts of it are exempt under ss 41, 42 and 43.[6] In the meantime, an Order in Council had amended the Administrative Arrangements Order so that the agency with responsibility for The Australian’s request became DFCSI with effect from 27 January 2006.
[1] The decision was deemed to have been made under FOI Act, s 56(1).
[2] Proceedings V2005/990
[3] Allowed under FOI Act, s 56(6).
[4] Section 59 relates to the review of decisions in respect of documents containing business information.
[5] Section 59A relates to the review of decisions in respect of documents containing personal information.
[6] CYLC made written submissions dated 13 December 2005 and 23 January 2006.
On 3 February 2006, DFCSI decided that certain parts of the report were exempt from disclosure under ss 41 and 42 of the FOI Act but that access would be granted to The Australian of the remainder of the report. In a letter dated 14 February 2006, it notified CYLC of its decision and its reasons for rejecting its claims. On 15 March 2006, CYLC applied for review of DFCSI’s decision.[7]
IS THE CYLC A PRESCRIBED AUTHORITY AND SO AN AGENCY?
[7] Proceedings V2006/204
The relevant provisions of the FOI Act
Whether the CYLC is a prescribed authority, and so an agency, is relevant in deciding whether it may rely on s40 to argue that passages of the report are exempt under that section. The CYLC seeks to demonstrate that it is an agency and that disclosure of the report, or passages of it:
“… 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)have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;
(d)have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
(e)have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations.”[8]
[8] s 40(1) whose operation is qualified by s 40(2) but the qualification is not relevant in this proceeding.
An “agency” is defined in s 4(1) to mean “… a Department, a prescribed authority or an eligible case manager.”[9] CYLC is clearly not “an eligible case manager” because, quite apart from the other criteria that it must meet to come within the description, it is not neither is nor has been a contracted case manager within the meaning of the Employment Services Act 1994. There is no suggestion by either party, and I am satisfied, that the CYLC is not a “Department” which is defined to mean:
“… a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth but does not include the branch of the Australian Public Service comprising the transitional staff as defined by section 3 of the A.C.T Self-Government (Consequential Provisions) Act 1988.”[10]
[9] s 4(1)
[10] s 4(1)
Whether it is a “prescribed authority” requires more thought. The definition of a “prescribed authority” brings within it entities that are clearly not associated with the CYLC. Omitting references to those entities, only (a)(i) and (ii) of definition of the expression is relevant:
“(a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order‑in‑Council, other than:
(i)an incorporated company or association;
…”[11]
The definition is qualified by s 7 which, in so far as it is relevant in this case, provides that:
“The bodies specified in Division 1 of Part I of Schedule 2 … are to be deemed not to be prescribed authorities for the purposes of this Act.”[12]
“Aboriginal Land Councils and Land Trusts” are specified in Part 1 of Schedule 2 of the FOI Act.
[11] s 4(1)
[12] s 7(1)
The submissions
In essence, Mr de Zilwa submitted that the CYLC is a prescribed authority because it is has been incorporated under the Aboriginal Councils and Associations Act 1976 (ACA Act) on 21 November 1990. The Registrar of Aboriginal Corporations (Registrar) has issued a Certificate of Incorporation to that effect. He distinguished my earlier decision in Re Sobczuk and Carnarvon Medical Service Aboriginal Corporation[13] and drew my attention to the judgment of Mansfield J in Jarraman Arts Aboriginal Corporation v Tourism Australia (No 3).[14]In that case, Mr de Zilwa submitted, Mansfield J:
“… discusses some provisions relating to the consequences of incorporation under the Corporations Act compared to the ACA Act. It is submitted that those paragraphs may provide the Tribunal with an alternative view in considering the extent to which the ACA Act may be thought to, in fact, set out a ‘profile’ to which the CYLC does conform, and may lead to the Tribunal finding that, in this instance and for the purposes of section 40(1)(d) of the FOI Act, CYLC was established ‘in accordance’ with the ACA Act, and is a ‘prescribed authority’.”[15]
[13] (1999) 58 ALD 727; 31 AAR 7
[14] [2005] FCA 983 at [36] to [41]
[15] Submissions on Joinder and Section 40(1)(d) of the FOI Act by the CYLC, [26]
As for the relationship between the definition of “prescribed authority” in s 4(1) of the FOI Act and the exemption of Aboriginal Land Councils and Land Trusts by the combined operation of s 7 and Part 1 of Schedule 2, Mr de Zilwa focused on their exemption “for the purposes of this [FOI] Act”[16]. The purposes of the Act are to be found in s 3, which sets out the object of the FOI Act in qualified terms, and s 11, which gives the public a qualified right of access to documents. The provisions of s 7 and Part 1 of Schedule 2, Mr de Zilwa submitted, can only be reconciled with the remainder of the FOI Act if it is regarded as an agency for the purposes of s 40.
[16] s 7(1)
Ms McNeilly submitted that the CYLC has not been established by or in accordance with an enactment. Even if it has been so established its status as an incorporated association means that it is excluded from the definition of “prescribed authority” by (a)(i) of that definition. Therefore it is not an agency.[17]
[17] Submissions of Respondent regarding application by CYLC to be joined to the proceedings, [13]-[18]
Consideration: the scope of the exclusionary provision in s 7
I have considered first the place of s 7 and Part 1 of Schedule 2 in the scheme of the FOI Act. The relevant references in Part 1 are to “Aboriginal Land Councils and Land Trusts”. At first sight, it appears that the CYLC comes within the description of an Aboriginal Land Council as it includes the words “Land Council” but is that so? The answer to that question depends on what is meant by “Aboriginal Land Councils and Land Trusts” as used in Part 1.
Aboriginal Land Councils and Land Trusts have a place in the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRNT Act). Section 21(1) of that legislation provides that:
“The Minister shall, on the commencement of this section, by notice published in the Gazette, divide the Northern Territory into at least 2 areas and establish an Aboriginal Land Council for each area.”
Once established for each area, an Aboriginal Land Council, referred to as a “Land Council” in the legislation,[18] is a body corporate with perpetual succession.[19] Its functions are prescribed by s 23 of the ALRNT Act. They are numerous but they are directed to ascertaining and expressing the wishes and opinions of Aboriginal persons living in its area as to the management of land, assisting Aboriginal persons in taking measures to assist in the protection of sacred sites on land in the area of the Land Council, assisting them in carrying out commercial activities and assisting them to claim a traditional land claim to an area of land within the area of the Land Council.
[18] ALRNT Act, s 3(1)
[19] ALRNT Act, s 22
Section 4(1) of the ALRNT Act provides that the Minister may, by notice published in the Gazette, establish Aboriginal Land Trusts to hold title to Crown land described in Schedule 1 to the Act, or areas of it, for the benefit of Aboriginal persons entitled by Aboriginal tradition to the use or occupation of the land. A Land Trust is a body corporate with perpetual succession.[20] The Minister appoints the members of a Land Trust.[21] Its functions include holding title to the land vested in it in accordance with the ALRNT Act and exercising its powers as owner of that land for the benefit of the Aboriginal persons concerned.[22] A Land Trust must not exercise its functions in relation to that land except in accordance with a direction given to it by the Land Council for the area in which the land is situated.[23]
[20] ALRNT Act, s 4(3)(a)
[21] ALRNT Act, s 7(2)
[22] ALRNT Act, s 5(1)(b)
[23] ALRNT Act, s 5(2)
The Aboriginal Land Councils and Land Trusts are bodies corporate and so meet the criterion in the opening words of the definition of “prescribed authority” in s 4(1) of the FOI Act. Later in these reasons, I set out my understanding of what is required before a body can be said to have been established “by, or in accordance with the provisions of,” an enactment. On the basis of that understanding, it seems to me that Aboriginal Land Councils and Land Trusts are established in accordance with the ALRNT Act.
Are the “Aboriginal Land Councils and Land Trusts” referred to in Part 1 of Schedule 2 of the FOI Act those established in accordance with the ALRNT Act? There are two reasons why I have concluded that they are. First, the ALRNT Act had been enacted and provided for their establishment before the enactment of the FOI Act. Second, the expression “Aboriginal Land Councils” is used in other Acts of the Parliament, enacted before and after the FOI Act, to mean those established under the ALRNT Act and to no others. I refer, for example, to the Environment Protection (Alligator Rivers Region) Act 1978,[24] Environment Protection (Northern Territory Supreme Court) Act 1978[25] and the Endangered Species Protection Act 1992.[26]
[24] s 3(1) defining the expression “appropriate Aboriginal Land Council” by reference to the ALRNT Act.
[25] s 3 defining the expression “Land Council” to mean “… an Aboriginal Land Council established under the Aboriginal Land Rights (Northern Territory) Act 1976 for an area that is, in whole or in part, within the Alligator Rivers Region.”
[26] s 4(1)(k) defining a Commonwealth agency to include, among others, “an Aboriginal Land Trust, or an Aboriginal Land Council, established under the Aboriginal Land Rights (Northern Territory) Act 1976” as well as “an Aboriginal corporation within the meaning of the Aboriginal Councils and Associations Act 1976”.
I am not satisfied that the CYLC is an Aboriginal Land Council of the type referred to in Part 1 of Schedule 2 of the FOI Act. Its name suggests that it is not concerned with any area within the Northern Territory and there is no evidence to suggest to the contrary. Consequently, the CYLC is not within those bodies deemed by s 7 not to be prescribed authorities.
Consideration: is the CYLC established by, or in accordance with, the provisions of an enactment?
The starting point for my consideration is s 43(1) of the ACA Act that provides that the committee of an Aboriginal association may apply to the Registrar for incorporation of the association under that Act. An “Aboriginal association” is defined to mean:
“… an association, society or body:
(a)eligibility for membership of which is limited to Aboriginals and spouses of Aboriginals;
(b)that has as members not less than 5 adult Aboriginals; and
(c)that is formed or carried on for any lawful object, including the securing of a pecuniary profit to its members.”[27]
[27] ACA Act, s 3
Subject to qualifications in s 45, the Registrar is required to issue a certificate of incorporation to the association if satisfied that it is proper to do so.[28] If not satisfied, the Registrar must refuse to issue a certificate of incorporation and give reasons for that refusal.[29] Upon the Registrar’s issuing a certificate of incorporation to an Aboriginal association under s 45, that association:
“(a) in the case of an unincorporated association – becomes a body corporate with perpetual succession;
(aa)in the case of an association incorporated otherwise than under this Act – continues in existence by force only of this section as a body corporate and has perpetual succession;
(b)shall have a common seal;
(c)may acquire, hold and dispose of real and personal property; and
(d)may sue and be sued in its corporate name.”[30]
[28] ACA Act, s 45(1)(a). The Registrar must refuse to issue a certificate of incorporation if the proposed name of the Aboriginal association is an unauthorized name (s 45(2)), its Rules are unreasonable or do not make provision to give its members effective control over its running (s 45(3)) or does not have the appropriate minimum number of members as provided in s 43(3A).
[29] ACA Act, s 45(1)(b)
[30] ACA Act, s 46(1)
In Re Sobczuk and Carnarvon Medical Service,[31] I considered these provisions in the context of whether the Carnarvon Medical Service Aboriginal Corporation (“the CMSAC”) was a prescribed authority. The Registrar had issued a Certificate of Incorporation of an Aboriginal Association on Change of Name certificate under the ACA Act. That certificate had been issued under s 53 of the ACA Act. The CMSAC had originally been incorporated under a different name some nine months before. I said of the CMSAC in that case:
[31] (1999) 58 ALD 727
“17. Was the CMSAC established as a body corporate ‘by, or in accordance with, the provisions of an enactment’? Taking first the phrase ‘in accordance with’, I note that it has been considered in a number of contexts but the interpretations adopted in each have been consistent. They are reflected in the following passage from the judgement of Deane, Dawson, Toohey and McHugh JJ in Walker v Wilson (1991) 99 ALR 1. One of the issues under consideration was whether a journey had been undertaken in accordance with the terms and conditions of an employee’s employment. Their Honours said (at 11):
In the context of sub-para (iii), the words ‘in accordance with’ should be construed as meaning ‘in conformity with’ or ‘consistently with’.
18. Turning then to the word ‘by’, I note that its ordinary meaning in the context of the definition is ‘… through the agency or efficacy of…’ (Macquarie Dictionary, 2nd edition, 1991). The word was considered in Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 29 ALD 616; 112 ALR 463, 10 ACSR 140 in the context of the expression ‘by or under’ which was used in an instrument of delegation. That instrument delegated powers conferred ‘by or under’ the Corporations Law. The particular power in question had been given to the then Australian Securities Commission by s 11(4) of the then Australian Securities Commission Act 1989 (Cth). In considering the meanings of the words ‘by or under’, Black CJ said at (ALD 619; ALR 466-7; ACSR 144):
The instrument of delegation of 21 March 1991 (the first instrument of delegation), which was the instrument referred to in the recital to the instrument of authorisation, delegated not only powers conferred ‘by’ the Corporations Law but, in addition, powers conferred ‘under’ the Corporations Law. Either word would have been appropriate to apply to the common situation where a section of an Act specifically confers a power and it is intended to delegate that power, although to refer to the power as being conferred ‘by’ the section may perhaps be more usual than to refer to the power as being conferred ‘under’ the section.
It is clear, however, that in the context of the instrument of delegation the word ‘under’ is not mere surplusage and that the two words are not intended to cover the same field. The word ‘by’ being plainly apt to apply to the common situation where a section of an act specifically confers a power, the additional words ‘or under’ should be read as extending the scope of the delegation beyond such a case. Those additional words would be apt to cover a power conferred by regulation made under the Corporations Law but they are probably not essential for that purpose and there is no reason to limit their application to such a case.
The express conferral of power by s 11(4) of the ASC Act is incomplete in the sense that it is an indispensable element of the conferral that there should be a function for the performance of which the power is necessary, or reasonably incidental, or with which the power is connected. It is only by the coexistence of the power and the relevant function that the power may be said to be conferred. Thus it may be concluded that the power in question is conferred by s 11(4) of the ASC Act but under the provision of the Corporations Law, in this case s 597, that confers the particular function that is essential for the conferral of the power to be complete.
A different conclusion would have been called for had either the word ‘by’ or the word ‘under’ been used alone in the instrument of delegation, but the use of both words compels, to my mind, the conclusion that the delegation should, in this respect, be construed expansively and to extend to the power to authorise persons to make applications, derived from s 11(4) of the ASC Act and s 597 of the Corporations Law working in necessary combination.
19. In view of both the authorities and the ordinary meanings of the words, it seems to me that the words ‘by, or in accordance with’ used in the definition of ‘prescribed authority’ in the FOI Act mean that the body corporate has been specifically established by the terms of the enactment or in conformity, or consistently, with the terms of the enactment. The difference is illustrated by the different situations of the Law Society of the Australian Capital Territory … and the Joint Coal Board.”[32]
[32] (1999) 58 ALD 727 at 731-732
On the basis of that reasoning, I am not satisfied that the CYLC has been established by the ACA Act. There is no provision that specifically and directly establishes it. The ACA Act can be contrasted with an Act such as the Legal Profession Act 2006. Section 576(1) provides that “The Law Society of the Australian Capital Territory is established.” The Legislation Act 2001 (ACT) provides that the word “establish” includes “constitute and continue in existence”.[33] Therefore, the Law Society of the Australian Capital Territory derives its entire existence from s 6(1) of the now repealed Practitioners Ordinance 1970 (ACT) when read with s 576(1) of the current legislation. Section 6(1) provided that:
“The Law Society of the Australian Capital Territory is hereby constituted a body corporate by the name of ‘The Law Society of the Australian Capital Territory’.”
[33] Dictionary, Part 1
The ACA Act has no provision such as the former s 5(1) of the Coal Industry Act 1946,[34] which provided that:
“The Governor-General may enter into an arrangement with the Governor of the State for the constitution, subject to this Act, of an authority which shall be known as the Joint Coal Board.”[35]
A mirror of these provisions was contained in the Coal Industry Act 1946 (NSW) enacted by the New South Wales Parliament. Beaumont and Pincus JJ decided that the joint corporate enterprise that resulted derived its existence from a combination of the Commonwealth and State legislative provisions but not exclusively so. Despite that, it was a body that had been established by, or in accordance with, an enactment and so was a prescribed authority for the purposes of the FOI Act.[36] Davies J reached the same conclusion.[37]
[34] Repealed by the Coal Industry Repeal Act 2001, s 3, Schedule 1, Item 1
[35] s 5(1)
[36] Joint Coal Board v Cameron (1989) 24 FCR 204 at 213
[37] (1989) 24 FCR 204 at 206
The Full Court did not distinguish between the Joint Coal Board’s being established “by” or “in accordance with” the legislation. I sought to do so in Re Sobczuk and Carnarvon Medical Service. If I were to adopt my reasoning in that case, I would find that the CYLC was not established “in accordance with” the ACA Act. That would be on the basis that it was not established according to a profile, as it were, set out in that legislation.[38] Whether that is the correct approach is open to debate.
[38] (1999) 58 ALD 727 at 733, [24]-[26]
In Re Federated Furnishing Trade Society of Australasia,[39] Gray J considered that the meaning “conformity”, rather than “harmony” should be attributed to the word “accordance” in the phrase “in accordance with”. When r 98(1) of the Industrial Relations Regulations provided that an application to the Court had to be “in accordance with Form 11”, his Honour decided that “in accordance with” meant “in complete agreement with”.[40] Keely J adopted a similar interpretation in the earlier case of Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission[41] when deciding that an application made outside a time limit specified in a section had not been made in accordance with that section. The expression must be read in its context. This is illustrated by cases in the town planning jurisdiction. Under the Development Act 1993 (SA), an amendment report in relation to a draft amendment to a development plan must be “in accordance” with a statement of intent agreed upon between the relevant council and the Minister. Debelle J said:
“[24] The verb ‘accord’ means to be in harmony or in correspondence or to be consistent with another thing: see Oxford English Dictionary and Macquarie Dictionary. The amendment will accord with the statement of intent if it is consistent with or corresponds with it. The correspondence between the proposed amendment and the statement of intent is not to be determined by a comparison of individual sentences or paragraphs in each document. The question whether the proposed amendment accords with the statement of intent does not necessarily turn on one statement or paragraph in the statement of intent. The statement of intent and the proposed amendment must each be viewed as a whole and then compared. Regard will be had to substance and not mere form. …”[42]
[39] (1993) 113 ALR 137
[40] (1993) 113 ALR 137 at 145
[41] (1982) 43 ALR 535 at 548-549
[42] Mount Barker Properties Ltd v Mount Barker District Council And Another (2001) 115 LGERA 190 at 204
Whichever meaning of “in accordance with” is adopted in the context of the definition of a “prescribed authority”, it is arguable that the outcome is the same. Under the ACA Act, a previously unincorporated association becomes a body corporate upon its being issued with a certificate of incorporation by the Registrar. This provision mirrors that in s 119 of the Corporations Act 2001 (Corporations Act). This section provides that a company comes into existence as a body corporate at the beginning of the day on which it is registered. ASIC may register the company under s 118 if an application is lodged under s 117. Section 117 sets out a number of matters that the application must state. In Salomon v Salomon,[43] Lord Halsbury LC said of the consequences of incorporation under s 18 of the Companies Act 1862 (UK):
“I am simply here dealing with the provisions of the statute, and it seems to me to be essential to the artificial creation that the law should recognise only that artificial existence - quite apart from the motives or conduct of individual corporators. In saying this, I do not at all mean to suggest that if it could be established that this provision of the statute to which I am adverting had not been complied with, you could not go behind the certificate of incorporation to shew that a fraud had been committed upon the officer entrusted with the duty of giving the certificate, and that by some proceeding in the nature of scire facias you could not prove the fact that the company had no real legal existence. But short of such proof it seems to me impossible to dispute that once the company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are.”[44]
[43] [1897] AC 22
[44] [1897] AC 22 at 30
In more recent times, Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said of incorporation under the predecessor of the Corporations Act, the Corporations Law:
“The company acquires its corporate personality upon and by reason of registration by the [Australian Securities] Commission …”[45]
[45] Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; 112 ALR 627 at 493, 630
There is no difference of substance between the ACA Act, the Corporations Act and the English legislation in this regard. Each provides that something new comes into existence. That is the body corporate that is separate from the individuals behind it be they directors, members, corporators, subscribers or an association of persons. The only way in which that body corporate comes into existence is by the relevant regulator’s being satisfied of certain matters and issuing a certificate of incorporation. In the case of the Corporations Act, the regulator is the Australian Securities and Investments Commission and in the case of the ACA Act, it is the Registrar. The regulator may only consider those matters on receipt of an application for incorporation.
Putting it another way, if all of the legislative steps are followed in making an application and all the legislative requirements are met, incorporation follows. Incorporation means that there is a legal entity that is new and separate from any that has existed before. It has been established, in conformity with the steps set out in the relevant legislative provisions. Those provisions may not set out a template for a particular entity as was the case with the Coal Industry Act 1946 but the result is the same. Both have been established in conformity, and so in accordance, with the provisions of an enactment. Therefore, the new legal entity that is the body corporate and that is known as the CYLC has been established in accordance with an enactment and so is a prescribed authority for the purposes of the FOI Act. It was established in accordance with the ACA Act when the Registrar issued it a certificate of incorporation on 21 November 1990.
This seems to me to be a preferable interpretation to that which I adopted in Re Sobczuk and Carnavon Medical Service Aboriginal Corporation. It is supported by the exception in paragraph (a)(i) of the definition of “prescribed authority” in the FOI Act. That exception is to the effect that “an incorporated company or association” is not a “prescribed authority”. If Parliament had not intended the meaning of “in accordance with” to be something narrower than I have decided, there would be no need to exclude an incorporated company or association.
There is nothing in the FOI Act that suggests that “an incorporated company or association” is limited to those incorporated under the Corporations Act. Incorporation is a creature of statute and Parliament may choose to provide for it under legislation other than the Corporations Act. In this case, Parliament has chosen to provide for it in the ACA Act in relation to a particular group of associations. It does not become something other than incorporation simply because it was provided for in legislation other than the Corporations Act. As Mansfield J said in Jarraman Arts Aboriginal Corporation v Tourism Australia (No 3):[46]
“… the topics addressed by Pt IV of the ACA Act reflect similar matters addressed in a much more detailed way in the Corporations Act concerning registered companies under that Act. Whilst the ACA Act is intended to provide a simpler and more flexible model for an Incorporated Aboriginal Association, its structure and content does not indicate any radically different conceptual approach from those concepts underlying the Corporations Act and which have evolved through successive generations of companies legislation since the Joint Stock Companies Act 1844 (UK).”[47]
[46] [2005] FCA 983
[47] [2005] FCA 983 at [39]
The very reason that I rely on to support my interpretation of the words “in accordance with” is the very reason why the CYLC is not a prescribed authority for the purposes of the FOI Act. It is an incorporated association and so excluded from that description. As it is not a prescribed authority, it is not an agency and so not the subject of the exemption in s 40.
IS THE CYLC A PERSON WHOSE INTERESTS ARE AFFECTED BY THE DECISION UNDER REVIEW?
The relevant provisions of the AAT Act
The Australian is the applicant seeking review of DFCSI’s decision. The CYLC seeks to be made a party to The Australian’s application on the basis that it is a person “whose interests are affected by the decision” within the meaning of s 30(1A) of the Administrative Appeals Tribunal Act 1975 (AAT Act). As that provision permits the Tribunal to order that such a person is a party to the proceeding, I must first determine whether the CYLC is such a person. If so, I then need to decide whether to exercise my discretion to make such an order.
General principles relevant in determining whether interests are affected by a decision under review
Both parties referred to the decision of Davies J in Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1)[48] (Control Investment) in which he considered when a person’s “interests are affected” within the meaning of ss 27(2)[49] and 30(1)(c) of the AAT Act, which then provided that the parties to a proceeding include those whose interests are affected by the decision under review and who apply to be joined as parties. Davies J said:
“In their context in ss 27 and 30, the words ‘interests are affected’ denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest. ... However, a person seeking joinder must be able to identify a relevant interest which is his. In other contexts, dicta in cases have used the adjectives ‘real’, ‘genuine’ and ‘direct’ to describe the relationship required between the decision and the interest. Sections 27(1) and 30(1) do not make use of adjectives but they do require that the applicant demonstrates genuine affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review. As Brennan J said in McHattan’s case [Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157]: ‘However, a decision which affects interests of one person directly may affect the interests of other indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by decision should be regarded as too remote for the purposes of s 27(1). The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected.”[50]
This passage was approved by the Full Court in United States Tobacco Company v Minister for Consumer Affairs and Others,[51] Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others[52] (Alphapharm) and Comptroller-General of Customs v Members of the Administrative Appeals Tribunal.[53]
[48] (1980) 3 ALD 74; 50 FLR 1
[49] Section 27 provides, in part, that a person whose interests are affected by a decision may apply for review.
[50] (1980) 3 ALD 74; 50 FLR 1 at 79-80, 8-9
[51] Unreported, 15 September 1988, No. G158 of 1988
[52] (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71
[53] (1994) 123 ALR 140, 32 ALD 463
In deciding Alphapharm, Davies J set out some of the more general principles underpinning those to which he had referred in Control Investment. I summarised these in Re Queensland Investment Corporation and Minister for Transport & Regional Services and Shopping Centre Council of Australia[54]:
“‘The question of standing is … related to issues of procedural fairness’: at FCR 260; ALR 383; ALD 80
‘If a person has interests which ought to be taken into account in the making of a decision, then ordinarily that person should be entitled to be heard’: at FCR 260; ALR 383; ALD 80
‘Many … decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way’: at FCR 260; ALR 383; ALD 80. A decision to impose a rate or a decision to impose a general charge for services is a decision that affects each ratepayer individually. It is also a decision of a ‘policy’ or ‘political’ nature and so is not subject to judicial review.
Whether or not a person has a right to be heard during the decision-making process, is a matter to be taken into account in deciding whether or not that person has a right to seek judicial review of the decision.
The Therapeutic Goods Act[[55]] is dominated by public interest concerns. It does not provide for the joinder of persons, including competitors, in the decision-making process.”[56]
[54] (2004) 84 ALD 717 Similar principles were applied in Edwards v Australian Securities Commission and Others (1997) 72 FCR 350; 142 ALR 455
[55] Therapeutic Goods Act 1989, under which the relevant decisions had been made.
[56] (2004) 84 ALD 717 at 736
In his judgment in Alphapharm, Gummow J noted that:
“… it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to … [a particular] dispute. In each case, the content of the terms ‘affect’ and ‘interest’ are to be seen in the light of the scope and purpose of the particular statute in issue.”[57]
Given the spectrum of decisions that could be made under the Therapeutic Goods Act1989, including decisions that could be made on the initiative of the Secretary rather than on an application, and that are reviewable under it, Gummow J said:
“… The denotation of the phrase ‘whose interests are affected’ … should not be assumed to be the same across this spectrum of decision making. It has a series of distinct operations and, in this sense, is of an ambulatory nature. … it cannot be correct that … the class of persons whose interests are affected by an initial decision is limited to disaffected applicants. Persons whose existing situation under the legislation is changed by operation of the initial decision, which was not sought but was imposed upon them, must be persons whose interests are affected by the initial decision.”[58]
[57] (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 272, 395, 91
[58] (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 273, 396, 91-92 Similar principles were adopted in Edwards v Australian Securities Commission and Others (1997) 72 FCR 350, 142 ALR 455
More recently, the High Court focused on whether a person was “affected by a reviewable decision” within the meaning of s 119 of the Development Allowance Authority Act 1992 (DAA Act). It did so in Allan v Transurban City Link Ltd[59] (Allan). The majority of the High Court said:
“ The expression ‘affected by’ and cognate terms appear in a range of laws of the Commonwealth. … It is necessary to answer the questions posed … in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’. …
… A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. … The starting point, as indicated by several authorities in the Full Court of the Federal Court …, is the construction of the Authority Act with regard to its subject, scope and purpose. … What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself. …”[60]
[59] (2001) 208 CLR 167; 183 ALR 380 (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting)
[60] (2001) 208 CLR 167; 183 ALR 380 at 174, 384; [15]-[17]
Consideration: the subject, scope and purpose of the FOI Act
In view of the authorities to which I have referred, I turn now to the subject, scope and purpose of the FOI Act. Its object, which is set out in s 3, has three limbs. One is directed to enabling members of the public to correct records of personal information held by agencies. A second is directed to giving the public access to information that will assist them in their dealings with departments and public authorities. The third, with which I am concerned, is directed to:
“creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by the exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities”.[61]
[61] s 3(1)(b)
The concept that disclosure in accordance with its terms, rather than denial of access, is at the heart of the FOI Act is underlined by s 3(2):
“It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.”
The same concept is also at the heart of the right of access that is created by s 11. Section 11(1) emphasises that the FOI Act gives a persona right to a document of an agency but that the right is subject to two qualifications. First, access is limited to a document that is a “document of an agency, other than an exempt document’[62] or “an official document of a Minister, other than an exempt document”[63]. Second, the right to access to such a document must be “in accordance with” the FOI Act.[64] The right is not affected by any reasons a person might have for seeking access or an agency’s or Minister’s belief as to what those reasons might be[65]. The structure of the FOI Act also accords with the concept underpinning it. Part IV specifies those documents that are exempt documents and so are documents to which the right of access does not extend. Part III sets out matters relating to the way in which the right is exercised and access is given, as well as other circumstances in which a person’s right may be qualified.
[62] s 11(1)(a)
[63] s 11(1)(b)
[64] s 11(1)
[65] s11(2)
Beginning with Part IV, I note that its exemptions include, but are not limited to, documents whose disclosure would, or could reasonably be expected to, cause damage to national security, defence or international relations, cause damage to relations with the States,[66] prejudice the conduct of a breach (or possible breach) of the law,[67] have a substantial adverse effect on the proper and efficient conduct of the operations of an agency[68] or have a substantial adverse effect on the ability of the Government to manage the economy.[69] Documents such as these come within the category of documents protected under the general law by public interest immunity. Public interest immunity:
“… in a document or other communication is a right by way of an immunity or privilege which enures in the body politic and indeed in the nation (or relevant polity as a whole, and not merely in the executive, being designed to protect the operation of instruments of government at the highest level and for the benefit of the public in general, subject only to a court’s reaching a conclusion to the contrary on sound grounds that no other public interest, especially in the administration of justice, should prevail in the particular circumstances.”[70]
[66] s 33A(1)(a)
[67] s 37(1)(a)
[68] s 40(1)(d)
[69] s 44(1)(a)
[70] State of Victoria v Seal Rocks Pty Ltd (2001) 3 VR 1 at 6-7 per Ormiston JA with whom Phillips and Buchanan JJA agreed.
The categories of public interest immunity are not closed[71] but the exemptions prescribed by the FOI Act are. Each category is to be interpreted and applied according to its terms and those terms are not to be limited by reference to another exemption provision in the FOI Act.[72] Public interest immunity does not give absolute protection from disclosure for:
“… the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer[[73]] as follows:
‘There is the public interest that harm shall not be done to the nation or the public service by the disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.’
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies.”[74]
Exemption under Part IV does give absolute protection if an agency or Minister decides that it should be claimed in respect of a particular document. No exemption provision is construed by reference to the fact that another exemption provision may apply to that document.[75] If a document is exempt, the Tribunal does not have the power to decide that access to the document must be given.[76] The executive government retains sole discretion in that regard.
[71] Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582 at 591 per Mason J
[72] s 32(a)
[73] [1968] AC 910; 1 All ER 874
[74] Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 at 38, 526 per Gibbs ACJ
[75] s 32
[76] s 58(2)
The exemption provisions in Part IV are not limited to those mirroring aspects of public interest immunity. Some are intended to give some degree of protection to those who deal with agencies in some way and about whom those agencies hold information. At the level of inter-government relations, exemption from disclosure is given to documents whose disclosure would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State or would divulge information or matter communicated in confidence by or on behalf of a State or a State authority to the Commonwealth or a Commonwealth authority or to a person on their behalf.[77] Exemption is given to certain information that comes within the description, broadly stated of business or professional affairs whose value would be, or could reasonably be expected to be diminished if disclosed, whose disclosure would, or could reasonably be expected to, adversely affect the person to whom they relate or whose future supply would be diminished for the purpose of the administration of the law or of matters administered by an agency.[78] A document is an exempt document if its disclosure under the FOI Act would involve the unreasonable disclosure of personal information about any person to a person other than the person to whom the information relates.[79]
[77] s 33A(1)
[78] s 43
[79] s 41
Part III of the FOI Act is concerned with exercising the right of access to documents and the way in which access is granted. It is, for example, concerned with matters such as the way in which a document may be requested,[80] the transfer of requests from one agency to another,[81] forms in which access may be given,[82] deletion of exempt matter or irrelevant material,[83] refusal when the workload in processing a request would be substantial and unreasonable[84] or when a document cannot be found[85] and charges.[86]
[80] s 15
[81] s 16
[82] s 20
[83] s 22
[84] s 24
[85] s 24A
[86] s 29
Part III also sets out the procedures to be followed when an agency receives a request for a document containing information whose disclosure, stated in broad terms, is likely to affect Commonwealth-State relations,[87] disclose a person’s business or professional affairs or the business, commercial or financial affairs of an organisation or undertaking[88] or personal information about any person other than the person making the request.[89] Each provides for consultation with the entity or person in certain circumstances. The circumstances vary according to the type of information in the document concerned.
[87] s 26A
[88] s 27
[89] s 27A.
Part VI is concerned with the review of decisions made under the FOI Act. In Re Ford and Child Support Registrar,[90] I summarised the structure of the review provisions that generally apply to a decision:
“3. In broad terms, a person may apply to the Tribunal for review of three sorts of decisions:
(i)a decision of the sort specified in s. 55(1) of the FOI Act or, if it was a decision in respect of which a person could ask for internal review under s. 54 and a decision has been made on that review, the decision made on review;
(ii)a decision of the sort specified in s. 55(1) if a person has applied for internal review under s. 54 but 30 days have passed since the agency received that application, and no decision has been received;…[[91]]
(iii)a deemed decision refusing access in accordance with a request under s. 15 and either 30 days, or any extension of that period, have passed without the person’s receiving notice of a decision on that request;…[[92]] and
(iv)a decision, which is made after an application has been made to the Tribunal for review of a decision but which does not grant, without deferment, access to the documents requested, may be incorporated in the Tribunal’s review of the decision….[[93]]”[94]
[90] [2005] AATA 860
[91] FOI Act, s. 55(2)
[92] FOI Act, s. 56(1)
[93] FOI Act, s. 56(5)
[94] [2005] AATA 860 at [3]
The starting point, therefore, is s 54 that provides for internal review of a decision refusing access, granting access but not in accordance with a request, deferring access, purporting to give access but not actually granting access, imposing a charge, remitting or not remitting a charge or giving access through a qualified person under s 41(3).[95] The person who may make the application for internal review is described as the “applicant”. The applicant is the “… person who has made a request”.[96] As a “request” is an “… application under subsection 15(1)”,[97] the applicant must be the person who requests access to a document. Section 55 determines those who may apply to the Tribunal for review. It entitles those who have applied for internal review under s 54 to make the application but does not extend beyond those persons. That is so regardless of whether a decision has been made under s 54[98] or whether a decision under s 54 has been delayed beyond a 30 day period.[99] It follows that the right to apply to the Tribunal is linked, and limited, to those who requested access to the document. The same is true where notification of the initial decision on the request has been delayed beyond the time limits specified in ss 15(1)(5)(b) or extended under s 15(6). That is so because, for the purposes of an application to the Tribunal under s 55, s 56(1) deems the principal officer of the agency or the Minister to have made a decision refusing to grant access to the document. Going back to s 55, the right to make the application is given to the person who made the request.
[95] s 54(1)
[96] s 4(1)
[97] s 4(1)
[98] s 55(2)
[99] s 55(3)
Persons other than those who made requests are also entitled to apply to the Tribunal under three sections. The first, s 58F, provides that a State that has entered arrangements with the Commonwealth “may apply to the Tribunal for a review of the decision” when:
“on a request having been made for access to a document that relates to the State in a way mentioned in paragraph 26A(1)(a), an agency or Minister decides that the document to which the request relates, or an edited copy of the document, is not an exempt document under section 33A.”[100]
The provisions of Part IV, other than those of s 55, apply in the same way that they apply to an application for review of a decision refusing to grant access to a document.[101] The agency or Minister must immediately inform the person who made the request of the application.[102]
[100] s 58F(1)(b)
[101] s 58F(2)(a)
[102] s 58F(2)(b)
Section 59 makes similar provision for an application for review to be made by a person, organisation or proprietor of an undertaking when an agency or a Minister decides that a document containing information about the business, professional, commercial or financial affairs (as the case may be) of that person, organisation or undertaking is not exempt under s 43.[103] When an agency or Minister decides that a document is not exempt under s 41 even though it contains personal information about a person, that person may apply to the Tribunal.[104]
[103] s 59(1)
[104] s 59A(1)
Consideration: is the CYLC a person whose interests are affected by DFCSI’s decision?
As the CYLC is a body corporate and there is no contrary intention in the FOI Act, it is regarded as a person.[105] As a person, it may make a request for access to a document under s 15(1) of the FOI Act. If it chooses to do so, it may then take advantage of the review provisions relating to any decision refusing to give access to that document in accordance with its request. The CYLC has not made such a request. That means that the only other way in which it could make an application to the Tribunal is given under s 59. That is, if an agency or Minister decides that a document is not exempt under s 43, the CYLC may apply to the Tribunal for review of the decision where the document contains information that relates to its professional, business, commercial or financial affairs. It would not be entitled to make an application under s 58F as that section only comes into play on a decision’s having been made under s 33A. Such a decision relates to relations between the Commonwealth and the States and not to relations between the Commonwealth and another body. The CYLC would not be entitled to make an application under s 59A as a decision that a document is not an exempt document under s 41 could never contain personal information about a body corporate. “Personal information” is defined in terms of information about an “individual”.[106] By choosing to use the word “individual” rather than “person” that it chose in other sections of the FOI Act, Parliament has shown that it does not intend to include the wider range of entities, such as a body corporate, commonly understood to be caught within the term “person”.
[105] Acts Interpretation Act 1901, s 22(1)(a)
[106] s 4(1)
The fact that the FOI Act makes specific provision for those who may apply for review of particular decisions is relevant in deciding whether or not the CYLC is a person whose interests are affected by a decision. It is relevant in that it shows that Parliament turned its mind to those who might be such persons. In doing that, it chose two categories of persons. The first is the general category comprising those whose interests are affected by having a request for access to a document in accordance with the FOI Act refused. The second includes three sub-categories comprising those whose interests are affected by decisions refusing to protect information that relates to them and their affairs under one or other of ss 33, 41 or 43.
As I have said, the question whether a person’s interests are affected by a decision is not determined solely by reference to whether the person may make an application for review independently of seeking to be joined as a party to another’s application. It is not determined solely by reference to whether a person had to be, or was, consulted before the decision was made. Those matters are merely threads in the fabric against which the question must be considered. The fabric is the FOI Act itself and its structure, as I have summarised it above, shows that it establishes a regime for review. In doing so, it has attempted to identify those whose interests would be affected by decisions made under it. Its attempt to do so should not be seen as closing the door on those who might be persons affected by decisions under the FOI Act. Instead, it should be seen as revealing its intention to protect the interests of those who deal with the executive government. Given that Parliament could not foresee all circumstances in which a person’s interests could be affected, the FOI Act should be construed as leaving the issue of whose interests are affected by a decision to be open and to be decided on ordinary principles.
To date, the DFCSI has refused access on the basis that documents, or parts of them, are exempt under ss 41, 42 and 43. In reaching its decision in relation to s 43, it had consulted the CYLC as required by s 27 in relation to information relating to the CYLC’s business affairs. The CYLC’s interests are clearly affected by the DFCSI’s decision under s 43 in that regard. Its interests are also affected in relation to the decision that was made under s 42 relating to legal professional privilege. The CYLC made a submission to the DFCSI claiming that parts of the report are subject to a claim of legal professional privilege. DFCSI rejected some of its submissions but CYLC clearly has an interest in whether or not that was the correct decision. The CYLC also has an interest in whether the DFCSI’s decision to accept other submissions, and so to claim exemption under s 42 in relation to some documents, is the correct decision. Its interest lies in its claim that the parts of the document sought are subject to its claim for legal professional privilege. It has an interest in ensuring that its legitimate claims to legal professional privilege continue to be protected under s 42. Therefore, it should be permitted to present evidence and make submissions regarding the applicability of that section.
Section 41 is a different matter. The CYLC is a body corporate and so different and separate from its members who are, in general terms, adult Aboriginal persons with traditional or historical interests in the Cape York Peninsula. The Rules of the CYLC provide that:
“The principal object of the … [CYLC] is the relief of poverty, sickness, destitution, serious economic disadvantage, distress, suffering and misfortune of Aboriginal persons, communities and groups within Cape York Peninsula.”[107]
Rule 6.2 then deals with specific objects that are intended to advance the CYLC’s principal object. Among them are those concerning the return, preservation and management of traditional Aboriginal land to Aboriginal persons and others the education and social welfare of Aboriginal persons. The CYLC is clearly a body concerned with the interests of persons. In carrying out its objects, it might well hold information relating to the personal affairs of persons.
[107] Rules of Cape York Land Council Aboriginal Corporation, r 6.1
I have not seen the report but it may well contain personal information about persons. Even though the CYLC is concerned with matters that affect individuals and their personal circumstances, I do not consider that, on the limited material I have, its concern equates with an interest in whether any personal information that the report may contain should be exempt under s 41. On the evidence that I have, it has no more than a general interest held by any member of the public in the disclosure or otherwise of personal information in the report. The FOI Act makes specific provision for those whose information it is to make an application for review. They are the persons who have the interest. In light of the specific provision and on the evidence available, the interests of the CYLC itself are too remote when regard is had to any claim for exemption under s 41.
The CYLC has also indicated that it may wish to argue that the report is exempt under s 40. For the reasons I have given above, the agencies whose operations are protected by that exemption do not include the CYLC. If the CYLC were to argue that disclosure of the report would, or could reasonably be expected to, have, for example, a substantial adverse effect on the proper and efficient conduct of the operations of an agency,[108] the CYLC is in no different position from any other member of the general public. That it is the disclosure of a report relating to the CYLC that might, for example, possibly have such an effect on the proper and efficient conduct of the operations of an agency does not change matters. Any effect on the CYLC’s interests will be indirect and merely a consequence of what is decided to be the effect of disclosure on the operations of an agency under s 40. In view of that, I have concluded that the CYLC does not have interests that are affected by s 40 of the FOI Act.
[108] s 40(1)(d)
SHOULD THE CYLC BE JOINED AS A PARTY?
Ms McNeilly drew my attention to a passage from the decision of Deputy President Thompson in Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment[109] when he said:
“… That discretion must, of course, be exercised rationally with regard paid to all of the circumstances of the proceeding and the nature of the interest of each of the persons applying to be made a party. It is necessary to have regard to the nature of review proceedings before the Administrative Appeals Tribunal. As was pointed out in Re Control Investments [sic] Pty Ltd, the Tribunal is required by the AAT Act to provide a fair hearing and to carry out the review as expeditiously as the subject matter of the review permits … The increased cost of the proceeding to the applicant and the respondent which will result from the joinder of additional parties in the proceedings is a factor to be taken into account … I am unable to accept that the Tribunal should allow Marine World to be subjected to greater expense than is necessary for the proper review of the Minister’s decision. Further, the Tribunal must be concerned with the cost not only to Marine World but also to public funds and endeavour to contain it to what is sufficient to enable it to undertake a proper review.
(33) There is also the requirement that the matter be dealt with expeditiously. That, and the need to keep the cost within proper bounds, make it undesirable that there should be a multiplicity of different parties each separately represented and presenting a separate case. …”[110]
[109] (1986) 10 ALD 262
[110] (1986) 10 ALD 262 at 271-272, [32]-[33]. Deputy President Thompson went on to direct that parties whose interests were substantially the same should be represented by a common representative. In Re Peters and Department of Health and Aged Care (1999) 56 ALD 561 at 577, Senior Member Bayne directed that the joined parties be limited in their participation to making written submissions in relation to one issue.
Ms McNeilly also drew my attention to the Tribunal’s objective specified in s 2A of the AAT Act to be:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”[111]
Provisions of this sort have been described as “general exhortatory provisions”.[112] In Minister for Immigration and Multicultural Affairs v Eshutu,[113] the High Court also said of them:
“… They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.”[114]
[111] Provisions of this sort are to be found in s 353 of the Migration Act 1958 (Migration Act) with reference to the Migration Review Tribunal and s 420(1) of the same Act in relation to the Refugee Review Tribunal (RRT) as well as in s 141 of the Social Security (Administration) Act 1999 in relation to the Social Security Appeals Tribunal.
[112] Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324 per Lindgren J
[113] (1999) 197 CLR 611; 162 ALR 577
[114] (1999) 197 CLR 611; 162 ALR 577 at 628; 588 per Gleeson CJ and McHugh J and 659; 613 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at 635; 592-594
In some instances, the five qualities that the Tribunal is exhorted to aspire to may appear difficult to achieve simultaneously. On their face, for example, it may appear difficult to be fair and just while being quick. It may appear difficult to be quick when, regardless of what is said in s 2A, the Tribunal must adhere to the rules of procedural fairness. Despite appearances, it may be that all lead to the same result for:
“… adherence to the requirements of natural justice [or procedural fairness] will ultimately promote administrative efficiency because of the greater public satisfaction and the fewer grievances that will result from the higher quality of decision-making thereby produced.”[115]
Furthermore, notions of efficiency incorporate fairness, justice and economy for it is not possible to produce satisfactory results with an economy of effort and a minimum of waste without achieving fairness, justice and economy. Looking at it another way, producing a decision or an outcome with less effort than is required to achieve it fairly and to achieve a reasoned decision addressing the appropriate issues is to waste the resources of the Tribunal, both at first instance and on any remittal, the resources of the appellate courts and those of the parties.
[115] Professor SD Hotop (now Deputy President Hotop), Principles of Australian Administrative Law, 6th edition, 1985 at 171 referred to with approval by Lee J in Courtney v Peters (1990) 27 FCR 404; 98 ALR 645 at 411, 653
Having regard to these matters, it seems to me that s 2A does not alter the principles that I must apply. The CYLC has interests that are affected and that should be taken into account in reviewing DFCSI’s decision. It should be heard in relation to those interests rather than being forced to rely on the good offices of DFCSI to put forward relevant material on its behalf. Its interests, however, are limited to those arising from the exemption provisions in ss 42 and 43. They do not extend to the other exemptions claimed by DFCSI. Its interests in relation to ss 42 and 43 should not allow it to present a case in relation to other matters in which its interests are no greater than those of a member of the general public.[116] Therefore, I consider that the CYLC should be joined as a party to the proceeding but only for the purposes of reviewing DFCSI’s decision in so far as it concerns whether all or parts of the report should be exempt under ss 42 and 43.
[116] Courtney v Peters (1990) 27 FCR 404; 98 ALR 645 at 411, 653
For the reasons I have given, I order that:
1.the Cape York Land Council be a party to proceeding No V2005/990 but only in relation to presenting evidence and making submissions in relation to whether the report, or parts of it, should be exempt under ss 42 and/or 43 of the Freedom of Information Act 1982.
I certify that the sixty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ...............................................................
Jayne Rathjen Associate
Date of Telephone Directions Hearing 17 August 2006
Date of Decision 5 September 2006
For the Applicant Mr M. McKinnon
Solicitors for the Respondent Ms T. McNeilly and Ms S. McCarthyCounsel for Cape York Land Council Mr E.G. de Zilwa
Solicitor for Cape York Land Council Ms K. Douglas
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