Robinson and Department of Employment and Workplace Relations
[2002] AATA 715
•22 August 2002
CATCHWORDS – FREEDOM OF INFORMATION – request for access to submission to Remuneration Tribunal – whether release of document prior to determination of Remuneration Tribunal contrary to the public interest – whether release of document likely to impact on frankness and candour of future submissions – whether on release public would be misled or confused – whether Remuneration Tribunal would be prevented from carrying out its functions – decision set aside.
Freedom of Information Act 1982 ss. 4, 11, 12, 13, 21, 24A, 29, 36, 40, 41, 61 and Part IV
Administrative Appeals Tribunal Act 1975 ss. 27, 35 and 37
Remuneration Tribunal Act 1973 ss. 3, 5, 7, 8, 10 and 11
Federal Court of Australia Act 1976 s. 6
Social Security (Administration) Act 1999 s. 168
Veterans' Entitlements Act 1986 s. 150
Superannuation (Resolution of Complaints) Act 1993 s. 38
Privacy Act 1988 s. 43
Defence Act 1903 s. 58G
Workplace Relations Act 1996 s. 48, 89, 111, 113, 170BC; Part VI, Part VIB and Part VID
Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112
Webb v Deputy Federal Commissioner of Taxation (1993) 26 ATR 411
Re Kingston Thoroughbred Horse Stud and Australian Taxation Office (1986) 10 ALN N38
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238
R v The Inhabitants of Bedfordshire (1855) 4 EL&BL 535; 119 ER 196
Johansen v City Mutual Life Assurance Society Limited (1904) 2 CLR 186
Attorney-General v Times Newspapers [1974] AC 273
Duncan v Cammell Laird & Co [1942] AC 624
Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1
Ellis v Home Office [1953] 2 QB 135
Harris v Australian Broadcasting Corporation and Others (1984) 5 ALD 564
Harris v Australian Broadcasting Corporation and Others (1983) 5 ALD 545
Re Kamminga and Australian National University (1992) 26 ALD 585
Russell v Russell (1976) 134 CLR 495
Re Williams and Registrar of the Family Court of Australia (1985) 8 ALD 219
Re Herald & Weekly Times and Secretary, Department of Finance and Administration (2000) 31 AAR 251
Dykstra and Centrelink [2002] AATA 659
DECISION AND REASONS FOR DECISION [2002] AATA 715
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/779
GENERAL ADMINISTRATIVE DIVISION )
ReRUSSELL ROBINSON
Applicant
AndDEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 22 August, 2002
Place: Melbourne
Decision:The Tribunal:
1.sets aside the decision of the respondent dated 8 July, 2002; and
2.substitute a decision that, after midday on 2 September, 2002, the applicant is entitled to access to the submission made to the Remuneration Tribunal by the Judges of the Federal Court of Australia with regard to its Judges and Related Offices review.
S A FORGIE
Deputy President
REASONS FOR DECISION
In a letter dated 28 March, 2002 and addressed to the Remuneration Tribunal, the solicitors for the Herald & Weekly Times Ltd ("Herald & Weekly Times") requested access under the Freedom of Information Act 1982 ("FOI Act") to:
"Any documents received by the Remuneration Tribunal between 1 October 2001 and 27 March 2002 forming an application or request by or on behalf [of] Judges of either the High Court, the Federal Court or the Family Court requesting an increase in their remuneration."
The request was received by the Remuneration Tribunal Secretariat, which is located within the Department of Employment and Workplace Relations ("Department") on 4 April, 2002. On 24 May, 2002, Mr Jeremy O'Sullivan, who is a person authorised by the principal officer of the Department, advised the Herald & Weekly Times that one document had been identified as coming within the scope of its request. That was a submission made on behalf of the Judges of the Federal Court of Australia ("the submission"). Mr O'Sullivan decided to refuse access to that submission on the basis that it was exempt pursuant to ss. 36(1) and 40(1)(d) of the FOI Act.
On 7 June, 2002, the Herald & Weekly Times requested review of Mr O'Sullivan's decision. It was reviewed by Ms Anna Clendinning, who is the Assistant Secretary of the Remuneration Tribunal Secretariat and she decided on 8 July, 2002 to set aside the earlier decision. In its place, she made a decision to grant access to the document sought but to defer access until the Remuneration Tribunal has concluded the major review of judicial and related offices that it is currently undertaking and has released its findings. In deferring access, Ms Clendinning relied on s. 21(1)(c) of the FOI Act which provides:
"An agency which, or a Minister who, receives a request may defer the provision of access to the document concerned:
…(c)if the premature release of the document concerned would be contrary to the public interest – until the occurrence of any event after which or the expiration of any period of time beyond which the release of the document would not be contrary to the public interest."
The effect of s. 21(2) is that the Department was then required to advise the Herald & Weekly Times, in so far as it could, the period for which the deferment would operate. That Ms Clendinning did when she advised that she expected that the Remuneration Tribunal would finalise its review by the end of October, 2002.
On 18 July, 2002, Mr Russell Robinson, who is a journalist employed by the Herald & Weekly Times, applied for review of Ms Clendinning's decision. There was no question at the hearing that he is a person whose interests are affected by the decision and so a person who may apply to the Tribunal within the meaning of s. 27 of the Administrative Appeals Tribunal Act 1975 ("AAT Act"). Mr Robinson was represented by Mr Pizer of counsel and the Department by its solicitor, Ms Campbell. The documents lodged pursuant to s. 37 of the AAT Act ("T documents") were admitted in evidence together with an extract from the Remuneration Tribunal's web site, a statement of Mr Robinson, an affidavit of Ms Anna Clendenning and requests lodged under the FOI Act by Mr Rick Wallace and Mr Simon Kearney respectively. Oral evidence was given by Mr Robinson in support of his case and by Ms Clendinning in support of the Department's case.
THE ISSUE
There are two issues in this case. The first is whether release of the submission before the Remuneration Tribunal has concluded its current major review of judicial and related offices and has released its findings would be contrary to the public interest. If release would be contrary to the public interest, the opening words provide that the Department "may defer provision of access" (emphasis added). It follows that the Department is not required to defer access and so I must consider whether the discretion to defer should be exercised.
BACKGROUND
There was no dispute between the parties as to the establishment of the Remuneration Tribunal, its functions and current enquiry. In view of that and on the basis of the evidence, including the affidavit of Ms Clendenning, I have made a number of findings of fact that I will set out in the following paragraphs.
The Remuneration Tribunal was established by the Remuneration Tribunal Act 1973 ("RT Act"). It consists of three members appointed on a part-time basis and its functions are threefold:
(1)to enquire into and report to the Minister on:
whether any alterations are desirable in the salaries payable to Ministers of State out of public moneys of the Commonwealth (RT Act, ss. 5(1) and 6(1));
the rates of salaries in relation to certain officers of higher education institutions (RT Act, ss. 5(1) and 6(2A));
(2)to enquire into and determine a number of issues including allowances and remuneration payable to the holders of certain offices and members of certain committees or bodies set out in s. 7 of the RT Act (RT Act, ss. 5(1) and 7).
(3)to provide advice to public statutory corporations, government business enterprises and other employing bodies and to the Australian National University and the Australian Maritime College in relation to terms and conditions (including remuneration and allowances) on which principal offices in the former group and executive education offices in the latter group are to be held (RT Act, s. 5(2)).
The second category of function is relevant in this case in so far as it applies to Judges of the Federal Court of Australia ("Federal Court"). The Remuneration Tribunal is required to enquire into and determine "… the remuneration to be paid to … the holders of public offices other than the holders of those offices who are members of, or candidates for election to, either House of Parliament" (RT Act, s. 7(3)). A "public office" is a reference to "an office established by, or an appointment made under, a law of the Commonwealth …" (RT Act, s. 3(4)(a)) and an "office" includes a position (s. 3(1)). A Judge of the Federal Court is appointed by the Governor-General by commission under the Federal Court of Australia Act 1976 ("FCA Act") (FCA Act, s. 6(1)(a)) and so is the holder of an office in respect of which it is the Remuneration Tribunal's function to determine its remuneration. As the parties are aware, a member of this Tribunal is also the holder of such an office.
In carrying out its function under s. 7 of the RT Act, the Remuneration Tribunal must have regard to:
"(a) the Principles of the Wage Determination established from time to time by the Australian Industrial Relations Commission; and
(b)decisions given from time to time by the Australian Industrial Relations Commission in National Wage Cases." (RT Act, s. 5(1))
The President of the Remuneration Tribunal convenes its meetings. Two members constitute a quorum, questions are decided by the majority of votes and the member presiding (the President of the Remuneration Tribunal if present) has a deliberative vote and, if there is an equality of votes, a casting vote (RT Act, s. 10). The manner in which the Remuneration Tribunal performs its functions is set out in s. 11, which provides:
"(1) In the performance of the functions of the Tribunal:
(a)the Tribunal may inform itself in such manner as it thinks fits;
(b)the Tribunal may receive written or oral statements;
(c)the Tribunal is not required to conduct any proceeding in a formal manner; and
(d)the Tribunal is not bound by the rules of evidence.
(2)The Minister may, if he or she thinks fit, appoint a person or persons to assist the Tribunal in an inquiry."
Each year, it must make a determination with regard to the remuneration to be paid to the holders of public offices referred to in s. 7(3) of the RT Act (RT Act, s. 8(1)(b)). It does so by grouping the public offices. One of those groups it has named "Judicial and Related Offices" and included within it, among others, Judges of the Federal Court and members of this Tribunal. In July, 2001, the Remuneration Tribunal announced its first comprehensive examination of the remuneration paid to holders of these offices since 1994. As part of its examination, it issued a discussion paper canvassing various issues, approaches and options that might be relevant in its considering the remuneration paid to holders of those offices. Among the matters canvassed are the relativities of remuneration for judicial and related office holders within the federal jurisdiction and between the federal and other jurisdictions, the possibility and the appropriateness of a total remuneration approach to judicial offices and whether there should be a linkage between productivity, performance and remuneration of judicial and related office holders. In August, 2001, it gave notice of its enquiry in daily newspapers in each capital city in Australia as well as the Financial Review and the Weekend Australian and also sent notices to interested parties including courts and Bar Associations. At the same time, it invited interested organisations and individuals to lodge submissions by 2 October, 2001.
Fifteen submissions were received by the Remuneration Tribunal in relation to its enquiry and discussions have been conducted with a range of interested persons. The Federal Court Judges lodged a submission dated 15 February, 2002. The Remuneration Tribunal expects to make its determination in relation to judicial and related offices in October, 2002. It will then cause a copy of its determination to be laid before each House of Parliament. Unless disallowed by either House, the determination will take effect according to s. 7(5C) of the RT Act.
THE EVIDENCE
The Remuneration Tribunal has previously received requests for access to documents under the FOI Act. One received by the Department on 29 December, 2000 was made by Mr Kearney, who is the National Political Writer for the Sunday Telegraph. He requested access to "… documents detailing the submissions made by the courts relating to Determinations 2000/13 and 2000/06 and an upcoming review of Judicial salaries" (Exhibit 4). Ms Clendinning said that some documents were released to Mr Kearney with deletions as a result of the Department's decision dated 26 April, 2001. All documents were released after the decision was made on 25 June, 2001 following internal review. Determinations 2000/13 and 2000/06 had already been made on 26 July, 2000 and 14 October, 2000 respectively. At that time, there was no "upcoming review of Judicial salaries" and so there were no documents in that category requested by Mr Kearney.
Another request under the FOI Act was made on 13 December, 2001 by Mr Wallace as politics reporter, Herald Sun. He requested completed reports of overseas study tours submitted to the Remuneration Tribunal by Members of Parliament or Senators ("members of parliament") who had used parliamentary study leave since 1 January, 2001 as well as applications or submissions they may have made "… calling for alterations to any of the entitlements overseen by Remuneration Tribunal … since January 2001" (Exhibit 3). In its initial decision dated 3 April, 2002, the Department granted him access to all but one of the documents he requested. It granted him access to one document with deletions but that document was subsequently released to him in its entirety after the internal review decision was made on 19 June, 2002.
Mr Wallace wrote an article, which was identified by Ms Clendinning as dated 11 June, 2002 (Exhibit B, RR1). It was headed "Free phone, stamps, trips sought Ex-MP: more perks please" and purported to set out entitlements sought by former Senator, The Hon. Grant Tambling. Ms Clendinning said that Mr Tambling had written a submission to the Remuneration Tribunal in November, 2001 requesting the entitlements as outlined in the article. He had written his submission after the Remuneration Tribunal had made its previous relevant determination on 26 September, 2001 (Determination 2001/20) and before it commenced its enquiry process in April, 2002 for its next determination. It was common for the Remuneration Tribunal to receive submissions when it has not yet commenced its enquiry process.
The article also referred to the Herald Sun's having previously "… revealed a push for free digital cameras and chauffeur-driven cars for federal MPs, plus overseas travel for their companions". Ms Clendinning identified that the source for the latter group of entitlements was to be found in a submission lodged by Australian Democrats' member, Senator Thomas together with a submission made on behalf of four or five Liberal party members.
Another article written by Camden Smith in the Northern Territory News on 25 June, 2002 reflected much of the content of the article by Mr Wallace (Exhibit B, RR1). Ms Clendinning identified it has having been drawn from Mr Tambling's submission. An article by Sharon Mathieson and Rob Taylor in The Age referred to submissions seeking cameras, cars, overseas travel for companions and business class flights for children (Exhibit B, RR1). It referred also to comments by Democrats' Senator Bourne and Liberal's Senator Knowles but Ms Clendinning said that their comments were not to be found in the documents released by the Remuneration Tribunal.
An article by Mr Kearney appeared in The Sunday Times, a Western Australian newspaper, on 1 July, 2001 (Exhibit B, RR2). It was headed "Judges put case on pay" and spoke of Federal and Family Court Judges' having "…filed a pay claim seeking to have their salaries linked to those of private-sector executives". Ms Clendinning identified references in the article as appearing in the submissions released to Mr Kearney in response to his FOI request. References to the Judges' seeking to prevent the Remuneration Tribunal from imposing performance conditions on their pay packets as having "… caused division among senior ministers in the Howard Government …" did not have its source in the documents released under the FOI Act, Ms Clendinning said. The material in The Sunday Times' article was reflected in a further article appearing on the same day in the Sunday Territorian dated 1 July, 2001 (Exhibit B, RR2).
The final article in evidence was entitled "Fat cats who have no right to howl" (Exhibit B, RR2) ("Fat Cats article"). Ms Clendinning said that she could not match any of the references in that article with documents released by the Remuneration Tribunal under the FOI Act. In cross-examination she said that it did not come from any submission lodged recently by lawyers acting on behalf of the Judges of the Family Court.
Ms Clendinning, who has been in her position since March, 2001, said that the Remuneration Tribunal had not, to her knowledge, released any submissions while it was in the process of reviewing a determination. She had made enquiries of the two previous occupants of her position and they indicated that nothing had been disclosed since the appointment of the present President of the Remuneration Tribunal, Mr Humphry. Mr Humphry was appointed on 4 March, 1998.
In her affidavit, Ms Clendinning set out competing aspects of the public interest that she had taken into account in reaching her decision to refuse access to the Federal Court Judges' submission prior to the Remuneration Tribunal's determination in October, 2002:
"7. I believe there is a public interest in the public having access to documents relevant to the Remuneration Tribunal's determinations to enable members of the public to scrutinise the basis upon which the remuneration of Judges and related senior public offices is set. However, there is a stronger public interest in the submission not being released prior to the Tribunal making its determination in relation to Judicial and Related Offices' Remuneration.
8.This review and future reviews such as that relating to parliamentarians' entitlements may be prejudiced because interested parties, such as Senators and Members, may not be willing to make candid submissions, particularly of the kind that are innovative or flexible (for instance, submissions that remuneration be reduced rather than increased) because they fear they might be criticised by their colleagues or the media for having done so. If the Remuneration Tribunal does not receive submissions it will not be aware fully of issues such as those, for instance, that Senators and members face when carrying out their responsibilities, and of alternative approaches to the provision of assistance they may suggest. If the Remuneration Tribunal does not receive frank submissions, it would be hampered in its functions of providing allowances to support properly the Senators and members. The Remuneration Tribunal aims to provide the best mix of entitlements to support Senators and members in their duties and responsibilities and also to provide that support at a reasonable cost to the community. There may also be a reduction in the number or quality of submissions made to the Remuneration Tribunal if the contents of submissions are made public prior to a determination by the Tribunal.
9.The public may also be misled or confused about the real reasons for the Tribunal's decision if the submission is released prior to the Tribunal's determination. The submission is only one of 15 written submissions received by the Tribunal. In considering its determination, the Remuneration Tribunal will also take into account other information, such as that provided in discussions with interested parties and research undertaken by the Secretariat. If the submission is released and speculated upon in the media, the Remuneration Tribunal would then need to spend time and effort and expend scarce resources to refute ill-informed public speculation. In 2001, the Remuneration Tribunal received 15 letters from the public following publicity about Tribunal determinations related to parliamentary entitlements, and to date in 2002 three such letters. That correspondence tended to indicate a lack of understanding of the basis for those determinations. There may be an increase in such correspondence if submissions are released prior to the determination having been made." (Exhibit 2)
In cross-examination, Ms Clendinning confirmed that the Remuneration Tribunal is an independent body. It is aware of comment by the public in, for example, on talk-back radio and among members of parliament. It takes account of public comment in balancing the various matters to which it has regard.
In her affidavit, Ms Clendinning said that the Remuneration Tribunal may call for submissions when conducting a review of remuneration and allowances provided for particular offices. Its policy in relation to the submissions that it receives is:
"… information provided to it … will only be used for the purposes of the particular review and for later Tribunal research purposes. The Tribunal treats the submissions it receives in the strictest confidence. The submissions will not ordinarily be disclosed to any other party." (Exhibit 2, paragraph 3)
In cross-examination, Ms Clendinning said that submissions have previously been released in response to requests made under the FOI Act. She is not intending to suggest that disclosure of every submission received by the Remuneration Tribunal is contrary to the public interest. Whether it would be depends upon the circumstances and the content of the submission concerned. If, for example, the author indicated that a document should be kept confidential, that would be taken into account. If the document contained a great deal of factual material that could be severed from other material that the Remuneration Tribunal would want to keep confidential, that part of the document containing factual material should be released. If the document contains information already publicly known, it should be released.
Ms Clendinning said that the Federal Court Judges' submission contained factual material and some comparative analysis of judicial remuneration. She supposed that it could be described as innovative as it contains some new suggestions. When asked whether it could be described as flexible, she said that Members of Parliament tend to make more flexible submissions than judicial officers. The Federal Court Judges have not objected to the release of their submission under the FOI Act. In advising their view to the Department, Justice Goldberg advised it that "The document was prepared specifically for the Tribunal and you will no doubt take into account the views of the Tribunal" (T documents, page 18).
When asked whether she was aware if the release of the documents to Mr Kearney had had any impact upon the submission made by the Federal Court Judges, Ms Clendinning replied that the Federal Court Judges had not said anything. She said that they had not written to say that their frankness and candour had been affected. She could not say that it was apparent from the submission that frankness and candour had been affected. The Federal Court Judges may not be affected and their frankness and candour may not be affected but the frankness and candour of others may be affected. The Remuneration Tribunal's concerns did not focus purely on the review of judicial and related offices but was an approach of principle in relation to all of its reviews. Ms Clendinning acknowledged that, if people were told that their submissions were less likely to be disclosed if they had not consented to their release than if they had, disclosure of a submission with the authors' consent would have less effect on the frankness and candour of those making submissions in the future.
Ms Clendinning agreed with Mr Pizer that whether the public is misled or confused will depend on the context in which the disclosure is made but she said that she did not know what the context would be. She was asked to assume that it would be disclosed in an article in which the public was informed that the Remuneration Tribunal had received 15 submissions and that it was expected to make its determination in October, 2002. Ms Clendinning said that there would be some risk that the public would be misled. There would be some media coverage and the risk of speculation depends upon how that coverage treats the article. People focus on controversial elements and may not see the introductory statement. Disclosure could cause speculation. With regard to the articles exhibited to Mr Robinson's statement (Exhibit B), Ms Clendinning said that she was not aware whether they had led to any correspondence to the Remuneration Tribunal. Life passes and other entitlements issued to retired members of parliament are a common theme from members of the public in oral representations made to the Remuneration Tribunal. She was not aware that the Fat Cats article had generated any correspondence from the public but she would not have expected any as it was concerned with the superannuation surcharge issue and the Remuneration Tribunal has no role with regard to that issue.
Ms Clendinning said that she was not aware of whether the Australian Industrial Relations Commission ("AIRC") makes public submissions made to it. She said that disclosure of the Federal Court Judges' submission after October, 2002 would not have the same concerns as if it were released before as the Remuneration Tribunal would then have made its determination and assessed all of the evidence before it. It would be a different situation. Others would not be affected as the public would have available to it the basis of the determination made by the Remuneration Tribunal. Even so, there would still be some people who would not be happy with disclosure even after October, 2002. One person has expressed the view that he or she would never express anything in writing. The Remuneration Tribunal itself would prefer to conduct its enquiry away from the glare of the public, Ms Clendinning said. It prefers that there not be public debate about the issue before it has made its determination. The Remuneration Tribunal remains accountable to the public and gives reasons for its determination. It is not a tribunal in the sense of a quasi judicial body and has always conducted its operations away from the glare of publicity.
In his statement, Mr Robinson set out the reasons why he considered that disclosure of the Federal Court Judges' submission is in the public interest:
"8 … I believe that disclosure of the Document is in the public interest. Taxpayers have a right to know how public money is spent. They also have a right to know how public money may be spent, so that intelligent discussion and debate may occur about the adequacy and appropriateness of the possible expenditure. It follows that the public has a right to have access to the submissions upon which the Remuneration Tribunal will base its decision concerning how much judges should be paid. Indeed, such access has been provided in the past. Attached to this statement and marked 'RR2' are copies of articles reporting on submissions made to the Remuneration Tribunal by judges prior to the Remuneration Tribunal concluding its review.
9.Page 6 of the 'Judicial and Related Officers' Remuneration 2001 Review – Discussion Paper' states as follows:
'There is an informal agreement between Federal and State Attorneys-General that the rate of base salary for State Supreme Court judges will be fixed up to a maximum of 85% of that paid to High Court judges.'
Attached to this statement and marked 'RR3' is a copy of the Discussion Paper.
10.Given the informal agreement referred to in the previous paragraph, any increase in salary for Federal Court judges is likely to have a 'flow on' effect so that State judges throughout Australia may also receive salary increases. In my opinion this substantially increases the public interest in disclosure of the Document because the possible increased expenditure of taxpayers' money as a result of the Remuneration Tribunal's review is greater." (Exhibit B)
In cross-examination, Mr Robinson said that he saw it as fundamental to any article that he write to mention that the Remuneration Tribunal had received 15 submission, the Federal Court Judges's submission was one of those 15 and that the Remuneration Tribunal was expected to make its determination in October, 2002. He would publish what he regarded as the pertinent parts of the submission although he acknowledged that he would not publish the entire submission. Mr Robinson envisaged that the article would occupy approximately three quarters of a page in the Herald Sun.
LEGISLATIVE BACKGROUND
Section 11(1) of the FOI Act provides that:
"Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document."
It is clear from the face of s. 11(1) that the right that it gives is a qualified right. The first qualification is that it is a right to have access to certain documents but the word "document" is defined in very broad terms in s. 4(1). The words "Subject to this Act" appear in s. 11 for a person's right is qualified by other provisions of the FOI Act. Those sections include s. 21 which is relevant in this case as well as ss. 12 and 13 (excluding access to certain categories of documents), 24 (permitting certain workload factors to be taken into account in refusing a request) and 24A (permitting a request to be refused if a requested document cannot be found or does not exist). Section 11 is explicit in its terms in that, in so far as a document of an agency is concerned, the right of access is not to every document in its possession. It is only to a document in its possession that is not an "exempt document". In so far as an agency is concerned, an "exempt document" is a document that is exempt by virtue of a provision of Part IV of the FOI Act (s. 4(1)).
Generally, the reasons why a person is seeking access to a document under the FOI Act or the use that he or she intends to make of that document are not relevant. This is expressly stated in s. 11(2), which provides:
"Subject to this Act, a person's right of access is not affected by:
(a)any reasons the person gives for seeking access; or
(b)the agency's or Minister's belief as to what are his or her reasons for seeking access."
As the section recognises, though, there may be occasions in which the person's reasons are relevant and those occasions are illustrated by cases such as Re Murtagh and Commissioner of Taxation (1984) 6 ALD 112 (Davies J, Sir Coates and Sinclair (Members)), Webb v Deputy Federal Commissioner of Taxation (1993) 26 ATR 411 (Cooper J) and Re Kingston Thoroughbred Horse Stud and Australian Taxation Office (1986) 10 ALN N38 (The Hon. Sir Prentice (Senior Member) and Dr Renouf (Member)).
THE SUBMISSIONS
In essence and relying on authorities to which I will return, Ms Campbell submitted that the public interest is concerned with a matter that is of serious concern or benefit to the public and a matter that is in the interest of the public and not merely with a matter of individual interest. If disclosure is to be in the public interest, disclosure of the information in the document should add to that which is already available to the public. The fact that the public, or a section of it, may be curious about the information a document contains does not mean that its disclosure is in the public interest. If a benefit will not flow to the public because not all of the information in the document will not be made available, the public interest in disclosure will not be satisfied.
If satisfied that all of the Federal Court Judges' submission will come to the attention of the public, it is then necessary to weigh the competing aspects of public interest against each other in order to decide where the balance lies. In favour of disclosure, Ms Campbell submitted, is the general public interest in obtaining access to government held information, in obtaining information which forms part of the basis upon which the Remuneration Tribunal will reach its determination for judicial and related offices and in scrutinising the operations of the Remuneration Tribunal in order to assess whether it is properly discharging its functions.
The factors against disclosure, Ms Campbell submitted, outweigh those in favour of disclosure. Those factors fall into five categories. The first is that its release would inhibit the frankness and candour of those who would want to make submissions to the Remuneration Tribunal in the future. The second is that premature release of the document before the Remuneration Tribunal had completed its review and before it had issued its determination would cause public confusion or mislead the public. A distinction should be drawn between the Remuneration Tribunal and other tribunals for, unlike those other tribunals, it is not a quasi judicial body. It can set its own procedures and has chosen to conduct its proceedings in private. A distinction can be drawn between it and the AIRC whose procedures are different. The third category of factors weighing against disclosure is that not all of the submission would come to the attention of the public. The fourth is that there is a public interest in the Remuneration Tribunal's being able to carry out its functions in a timely, efficient and effective way at a reasonable cost to the community. Disclosure would hamper it in doing so as it would have to refute ill-informed public speculation. The fifth is that the Remuneration Tribunal must be allowed to carry out its functions under the Act to afford those whose remuneration it determines the best mix of entitlements and at the same time satisfying the public by achieving savings so that the provision of entitlements is at a reasonable cost to the community.
Mr Pizer observed that the Department bears the onus of proof in establishing that release at this time would be contrary to the public interest within the meaning of s. 21(1)(c) of the FOI Act. There is a public interest in disclosure because the public has a right to know how public money may be spent so that there can be an intelligent discussion about how it should be spent. The effect of Mr Pizer's submission was that the discussion should take place at a time when it can have an impact on how public money will be spent.
CONSIDERATION
As Ms Campbell submitted, the expression "public interest" is extensively used in the FOI Act but has not been defined. Having regard to a cross-section of the authorities that have considered the expression both in Australia and in the United Kingdom over the years, it seems to me that it is incapable of precise definition. Rather, the authorities approach the issue by identifying particular issues that lie inside or outside the public interest while never drawing the boundary between the two. That approach reflects the changing qualities of the issues that arise in the community and was expressly recognised by Lockhart J in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 when he said:
" The public interest is a concept of wide meaning and not readily delimited by precise boundaries. Opinions have differed, do differ and doubtless always will differ as to what is or is not in the public interest." (page 245)
In an earlier time, that which was in the public interest meant "…not …that which is interesting as gratifying curiosity or a love of information or amusement; but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected" (R v The Inhabitants of Bedfordshire (1855) 4 EL&BL 535 at 542, 119 ER 196 at 198, per Lord Campbell CJ). This was an approach seen also in the High Court's judgement in Johansen v City Mutual Life Assurance Society Limited (1904) 2 CLR 186 at 188 although it did contemplate a class of case that was of "public importance".
The authorities show that there has been a move to encompass matters that may be regarded as being of public importance but not necessarily being framed in the form of rights or liabilities. So, for example, Lord Simon of Glaisdale said in Attorney-General v Times Newspapers [1974] AC 273:
"The public interest in freedom of discussion (of which freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves." (page 320)
That aspect of public importance is also seen in cases in which the public interest justified a minister of the Crown in objecting to the production of certain documents on the basis that disclosure would be injurious to the national defence or to good diplomatic relations or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service (Duncan v Cammell Laird & Co [1942] AC 624 at 642).
It has long been recognised that there may be competing public interests and that "Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests … and be very much a question of fact and degree." (Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 at 5 per Mason CJ, Wilson and Dawson JJ, emphasis added).
The public interest has been considered in the context of the courts. It has been held that "…one feature and one facet of the public interest is that justice should always be done and should be seen to be done" (Ellis v Home Office [1953] 2 QB 135 at 147). It has also been considered in a non-judicial context. That occurred in the case of Harris v Australian Broadcasting Corporation and Others (1984) 5 ALD 564 (Bowen CJ, St John and Fisher JJ) in considering an appeal from Beaumont J's earlier judgement in Harris v Australian Broadcasting Corporation and Others (1983) 5 ALD 545. 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 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)
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 s. 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)
Where does the public interest lie in this case? None of the authorities is directly on point. The Remuneration Tribunal is not a court. It is not a tribunal reviewing decisions or resolving disputes between parties, whether in the public or private sector. Instead, it is a body with a mixture of determinative and recommendatory functions. It is not part of a department although members of its secretariat are officers of the Department. It may be described as an agency of government. Indeed, there is a very real question whether it is an agency within the meaning of the FOI Act. It is an agency, as that term is defined in s. 4 (1) of the FOI Act if it is "… an unincorporated body, established for a public purpose by, or in
accordance with the provisions of, an enactment …" and so a "prescribed authority" (FOI Act, s. 4(1)).
The tension in this case, then, would seem to be between the public interest in the public's being informed of the processes of the Remuneration Tribunal and particularly the manner and basis upon which it forms its views as to the level of remuneration to be paid from public moneys on the one hand and the public interest in its being able to carry out its functions properly and effectively. It is in relation to the proper and effective functioning of the Remuneration Tribunal that the issues of candour and frankness and its timely, efficient and effective operation are relevant. The other factors identified at the hearing are sub-issues of those issues.
On the basis of the evidence of Ms Clendinning, I find that the Department has, in the past, released under the FOI Act submissions made to the Remuneration Tribunal by the courts and by members of parliament regarding reviews it had already completed. In addition, it has released a submission, be it in the form of a letter or otherwise, from Mr Tambling when the Remuneration Tribunal was not then engaged in a review. Some of the material in those submissions has been referred to in articles published in a selection of newspapers in Australia.
It would appear on the face of the evidence that here has been sufficient time for any effects on frankness and candour to have become apparent. Submissions made by the courts were released to Mr Kearney by July, 2001 and so over a year ago. Furthermore, they were released prior to the Remuneration Tribunal's current review and were given some press coverage. The Federal Court Judges are among those who have since made a submission as have the Family Court Judges. None has suggested that they were inhibited in their frankness and candour and, indeed, the Federal Court Judges have consented to the release of their submission should the Department do so under the FOI Act.
There is evidence that one person from the group of office holders within the scope of the Remuneration Tribunal's responsibilities has expressed concern to the Remuneration Tribunal following the release of the information in the submissions or following the publication of the newspaper articles. I find that the person has stated that he or she will never express any views in writing in the future. There is no evidence that any other members of the group has felt similarly constrained in relation to the manner in which his or her views are made known to the Remuneration Tribunal. Furthermore, there is no evidence that the submissions that have been made either have been, or have appeared to be, drafted in more circumspect terms than in the past. Apart from Ms Clendinning's reporting the view expressed by one person, no evidence was called from any members of the group of office holders that they have been or may be inhibited by the release of these submissions in the past.
That brings me to consider whether release of the submission of the Federal Court Judges' submission would cause public confusion or mislead the public. On the basis of Ms Clendinning's evidence, I find that members of the public have made representations orally to the Remuneration Tribunal regarding the entitlements of retired members of the public service. There is no evidence that there have been any representations in writing. The fact that representations have been made to the Remuneration Tribunal regarding the entitlements of members of parliament does not, without more, lead to the conclusion that the public has been confused or misled by the information that has been released in the past. Submissions, disagreement and even debate do not of themselves mean that there will be, or is likely to be, public confusion. Ms Clendinning did not suggest that the public commented on the entitlements of members of parliament only in the period following the Remuneration Tribunal's having made a determination. In the absence of any evidence that there has been anything more than oral representations does not seem to me to be a sufficient basis upon which I can be satisfied that release of information regarding entitlements, whether sought or determined, would cause public confusion or mislead the public.
I have also had regard to the judgements in Harris v Australian Broadcasting Corporation and Others and particularly to that of Beaumont J. A clear distinction can be drawn between that case and this. Premature disclosure of submissions and deliberations in an investigation and review of the operations of a legal department is quite different from a review of matters relating to remuneration. Disclosure of the former may well be misleading if all relevant views are not available at any one time. That is not so in the context of the review of remuneration. While others, such as the government, may make a submission expressing contrary views, release of one submission without the others made to the Remuneration Tribunal does not provide a distorted view of what that submission contains. In this case, it remains the submission of the Federal Court Judges and the public does not obtain a distorted view of that submission by reason of its not being accompanied by any other submission made by others affected by the Judicial and Related Offices Review or any submission made by government.
I accept Ms Campbell's submission that it is in the public interest that the Remuneration Tribunal be able to carry out its functions in a timely, efficient way at a reasonable cost to the community and that it must be permitted to carry out its functions. That public interest applies equally to the courts and to the executive but the manner in which it is upheld may differ from body to body. With regard to courts, for example, the fundamental principles were set out by Gibbs J in Russell v Russell (1976) 134 CLR 495:
"It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted 'publicly and in open view' (Scott v Scott [1913] AC 417 at p. 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for 'publicity is the authentic hall-mark of judicial as distinct from administrative procedure' (McPherson v McPherson [1936] AC 177 at p. 200). To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court. …" (page 520)
It is clear from the judgement of Gibbs J that a distinction is drawn at common law between the proceedings of courts and the activities of administrative officials. While the Remuneration Tribunal does not come within the description of "administrative officials" it is clearly a part of the executive, and not the judicial, arm of government under the Commonwealth government. In the absence of any particular provisions that their deliberations are conducted in public (e.g. AAT Act, s. 35(3)), it is generally the case that, in the absence of such provisions, the deliberations of officers of the executive would not be open to any form of direct public scrutiny. In the case of some tribunals, privacy is expressly provided for by Parliament. For all practical purposes, for example, the proceedings of the Social Security Appeals Tribunal ("SSAT") and the Veterans' Review Board ("VRB") are held in private (Social Security (Administration) Act 1999 ("SSA Act"), s. 168 and Veterans' Entitlements Act 1986 ("VE Act") s. 150) as are those of the Superannuation Complaints Tribunal (Superannuation (Resolution of Complaints) Act 1993 ("SRC Act"), s. 38) and of the Privacy Commissioner (Privacy Act 1988, s. 43(2)).
The Act does not provide for the proceedings of the Remuneration Tribunal to be held in private or in public. It does not dictate any particular procedures it must follow. In this regard it is similar to the Defence Force Remuneration Tribunal established under s. 58G of the Defence Act 1903 ('Defence Act"). The same can be said of the AIRC which was established under the Workplace Relations Act 1996 ("WR Act") and which governs its procedure. Among the functions of the AIRC are that it prevents and settles industrial disputes (s. 89), makes orders that employees covered by those orders will receive equal remuneration for work of equal value (s. 170BC), makes and certifies certain agreements, particularly at the level of a single business or part of a single business (Part VIB) and considers Australian Workplace Agreements referred by the Employment Registrar (Part VID). In relation to the prevention and settlement of disputes, the AIRC may exercise powers under Part VI of the WR Act. It may make an award, either by consent or otherwise, and may set aside or vary an award (ss. 111(1)(b) and 113(2)). Its President may, after consultation with its members, make Rules prescribing its practice and procedure (WR Act, s. 48). On the basis of an examination of the AIRC's website, which has been drawn to the parties' attention, I find that it posts on transcripts of its proceedings on its web site provided a transcript has been ordered and the proceedings are not subject to a confidentiality order. They are posted approximately ten days after they have been received by the AIRC. An examination of the transcripts reveals that they relate to a variety of matters. Some are heard and determined on the same day and others are transcripts from proceedings that are ongoing. Some relate to the variation of awards affecting remuneration and terms and conditions of employment.
The functions of the AIRC and the Remuneration Tribunal are not identical but both are concerned with remuneration to be paid. One is limited to senior officers paid from the public purse and the other's responsibilities are more wide ranging. Both have determinative powers even if in the case of the Remuneration Tribunal its determinative powers in relation to judicial and related offices are subject to disallowance by the Parliament and the decisions of the AIRC are subject to appeal. There is no evidence to suggest that the AIRC is hampered in carrying out its functions or that its cost effectiveness is hampered.
That the AIRC does not appear to be hampered in carrying out its functions does not decide whether the Remuneration Tribunal would be hampered if one of the submissions made to it should be released. What is appropriate for the AIRC does not determine what is and is not contrary to the public interest in this case, but it does provide an interesting analogy. It is difficult to see a reason why the Remuneration Tribunal should be hampered by the release of a submission when the AIRC is not hampered by the release of transcripts of submissions made orally in ongoing proceedings. The reason cannot lie in the procedures of the AIRC being more formal than those of the Remuneration Tribunal. Whether people of integrity, be they appointed to the AIRC or the Remuneration Tribunal, are hampered in the performance of their responsibilities by the disclosure of information would not be affected by the degree of formality with which they approach their task. The reason cannot be found simply in the difference between those who make up the groups whose remuneration is determined. It is equally important to the lowest paid as to the highest paid person that he or she is properly and appropriately remunerated for the performance of his or her duties. It is equally important that those who are responsible for the payment of that remuneration pay what is a proper and appropriate amount for the duties performed; no more and no less. It is equally important in both instances that remuneration is determined according to proper principles.
Payment from the public purse is, however, a point of distinction between the two. There is a public interest in the public's knowing what is paid from it. There is a public interest in the public's having an opportunity to have its voice heard by those who determine what is to be paid. It could be said that the public has that opportunity when the determination is tabled in Parliament but just how long its 15 sitting day opportunity is depends very much on the timing of its tabling and the Parliamentary programme. On the basis of the evidence of Ms Clendinning, I am satisfied that the Remuneration Tribunal does take account of comment in the public arena prior to its making its determination. There is a public interest in that comment's being informed comment and a public interest in there being comment that is pertinent to the issues under consideration by the Remuneration Tribunal.
There is an analogy to be drawn between the Remuneration Tribunal and a body such as this Tribunal and a contrast to be drawn between it and bodies such as the SSAT and the VRB. Subject only to appeal on a question of law or, in the case of the Remuneration Tribunal, disallowance in the Parliament, the determinations (however named) made by the Remuneration Tribunal, the AIRC and this Tribunal are final. The determinations of the SSAT and the VRB are not final. There is another level of external review to which their decisions are subject. The finality of the determination made by this Tribunal is reflected in a statutory requirement that its proceedings be open and the lack of finality in the determinations of the SSAT and the VRB is reflected in a statutory requirement that its processes be in private.
A distinction may also be made between the Remuneration Tribunal and a body such as the Privacy Commissioner and the Superannuation Complaints Tribunal. In both cases, Parliament has determined that the proceedings will be conducted in private. Such is not the case in relation to the Remuneration Tribunal. A distinction can also be drawn between the Remuneration Tribunal and an enquiry such as that considered in the Harris case. The Remuneration Tribunal is considering matters relating to remuneration. In doing so, it is considering what judicial and other senior officers as well as the appropriate Ministers have put forward as appropriate remuneration. While the Remuneration Tribunal must reach a determination, it is not faced with a situation in which release of one submission without its final determination could reflect unfavourably on the professional or personal reputations of those making the submission. It is not a situation, as in Harris, where release could create a misleading or unfair impression in the minds of readers who did not have the benefit of knowing any submission of, for example, the Attorney-General or the final determination of the Remuneration Tribunal. Whether the submission of the Federal Court Judges is released before or after the Remuneration Tribunal's determination, it stands alone as a statement of what the Judges consider appropriate remuneration and their reasons for doing so. The Remuneration Tribunal may not accept that submission, or part of it, but its determination and reasons stand alone.
If the Federal Court Judges' submission is to be released to Mr Robinson under the FOI Act, I am satisfied that he will only publish those parts of it or make reference to those parts of it that he considers to be pertinent. It may not be what the authors consider to be pertinent, what the Remuneration Tribunal considers pertinent or what an independent third party might consider pertinent.
Some of the evidence was directed to the impact that disclosure of the Federal Court Judges' submission would have if Mr Robinson were to mention in any article that he may write that the Remuneration Tribunal had not yet made its determination and that the submission was only one of 15. Whether Mr Robinson includes that information may well be something that could be expected of a journalist with integrity just as it could be expected that a journalist of integrity could be expected to publish a balanced account of the contents of the submission. I do not, however, consider that I can take either factor into account in deciding whether or not access to it under the FOI Act would be contrary to the public interest. If access is granted under the FOI Act, it must be considered as being granted to the world at large and not as being granted through any particular medium be it the Herald & Weekly Times or otherwise. That follows from the FOI Act's giving a legally enforceable right to every person to have access to documents in accordance with its provisions (FOI Act, s. 11(1)). Consequently, notions such as reasonableness incorporated in s. 41 of the FOI Act must be "… considered as if disclosure were to the world at large" (Re Williams and Registrar of the Family Court of Australia (1985) 8 ALD 219 at 224 Senior Member McMahon (as he then was)). So too must notions of public interest and what is contrary to public interest be assessed on the basis that access is given to the world at large.
In saying that, I acknowledge that, in Re Herald & Weekly Times and Secretary, Department of Finance and Administration (2000) 31 AAR 251, O'Connor J took into account whether the Herald & Weekly Times would publish the documents it obtained under the FOI Act so that they came to the attention of the public, or a significant section of it. Her Honour's consideration was in the context of the charges imposed under s. 29 of the FOI Act for access to the documents. Section 29(5)(b) provides that, in deciding whether or not to impose or to reduce a charge, an agency must take into account whether giving access to the document in question is in the general public interest or in the interest of a substantial section of the public. The issues that are relevant in determining what is in the public interest in that context may take into account the identity of the person seeking access and what he or she proposes to do with the document sought in determining the level of charges he or she should pay. The particular concerns and interests of the person asking for access are not relevant in deciding whether to give access at all and are, as I have said, cannot be taken into account by virtue of s. 11(2).
While release of the submission or, more importantly, circulation of aspects of that submission in the public arena, may lead to an increase in correspondence, I find on the basis of Ms Clendinning's evidence that only 15 letters were received from members of the public in 2001 after release of the Remuneration Tribunal's determination. I have also found that newspaper articles published in 2001 made reference to submissions made to the Remuneration Tribunal. Although a not insignificant workload for a small secretariat, Ms Clendinning's evidence is only that there may be an increase in such correspondence if submissions are released prior to, as opposed to after, the determination. Given that 15 have been generated by past publicity and two submissions from the public have been received in 2002, I am not satisfied that there is likely to be any significant increase in the number of submissions that will be received after release of the submission.
Weighing all of these matters together and bearing in mind that the Department has the onus of proof under s. 61(1) of the FOI Act, I have concluded that release of the Federal Court Judges' submission prior to the release of the Remuneration Tribunal's determination in October, 2002 regarding judicial and other offices would not be contrary to the public interest. I am not satisfied that access would hinder the Remuneration Tribunal to any significant degree in carrying out its functions in a timely, efficient way at a reasonable cost to the community, that there would be public confusion or misleading of the public or that the frankness and candour of those making submissions to the Remuneration Tribunal would be significantly hindered. As I have decided that release would not be contrary to the public interest, I do not need to consider the discretion implicit in s. 21(1)(c).
I have considered whether I should defer access to the document for a short period to enable the Department to consider its position with regard to any appeal it wishes to lodge. Ms Campbell submitted that I should consider the course I adopted in Dykstra and Centrelink [2002] AATA 659 when I deferred access for 28 days. Mr Pizer submitted that I should not and that the Department should make any appropriate application for a stay of implementation of the decision in the Federal Court. For all practical purposes, the course recommended by Mr Pizer forces the Department to lodge an appeal simply to protect its position while it considers whether it wishes to pursue it. At the same time, deferral of access for the full appeal period of 28 days from the date of my decision is in danger of rendering my decision ineffectual as October approaches. I have decided to compromise between the two positions and to defer access until midday on 2 September, 2002. That will enable the Department some opportunity to consider its position while not rendering the decision ineffective for all practical purposes.
For the reasons I have given, I:
1.set aside the decision of the respondent dated 8 July, 2002; and
2.substitute a decision that, after midday on 2 September, 2002, the applicant is entitled to access to the submission made to the Remuneration Tribunal by the Judges of the Federal Court of Australia with regard to its Judges and Related Offices review.
I certify that the sixty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),Signed: …………………………………..
Paul Paczkowski AssociateDates of Hearing 8 August, 2002
Date of Decision 22 August, 2002
Counsel for the Applicant Mr Pizer
Solicitor for the Applicant Corrs Chambers Westgarth
For the Respondent Ms Campbell
Solicitor for the Respondent Australian Government Solicitor
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