Secretary, Department of Prime Minister and Cabinet and Summers (Freedom of information)
[2019] AATA 5537
•20 December 2019
Secretary, Department of Prime Minister and Cabinet and Summers (Freedom of information) [2019] AATA 5537 (20 December 2019)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2018/0686
Re:Secretary, Department of Prime Minister and Cabinet
APPLICANT
AndWilliam Summers
RESPONDENT
DECISION
Tribunal:Justice M A Perry, Deputy President
Date:20 December 2019
Place: Sydney
The Tribunal determines:
1.The decision under review be set aside.
2.In substitution thereof, the documents the subject of the request by the respondent for access are exempt under s 33(a)(iii) of the Freedom of Information Act 1982 (Cth).
..................................[SGD]......................................
Justice M A Perry, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – request for access to all letters from the Prime Ministers of Australia to the Queen since 1 January 2013 – where all letters were received by the Queen in her capacity as Queen of Australia – whether documents exempt under s 33(a)(iii), Freedom of Information Act 1982 (Cth) (FOI Act) on the ground that disclosure “would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth” – where appropriate to require the documents to be produced for inspection by the Tribunal under s 58E, FOI Act – where content of individual letters not determinative – whether onus of establishing “could reasonably be expected to” must be discharged on the balance of probabilities – construction of “the international relations of the Commonwealth” – consideration of the tripartite convention, the cardinal convention, and the convention and practice of confidentiality with respect to correspondence between Australian Prime Ministers and the Queen – where mutual expectation that the confidentiality convention will be strictly observed embodied in exchange of letters – where confidentiality convention forms part of the constitutional systems of other Commonwealth realms – where the evidence established that disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth by reason of Australia being regarded as a less trustworthy confidant – where documents exempt under s 33(a)(iii), FOI Act
FREEDOM OF INFORMATION – whether letters conditionally exempt under s 47C, FOI Act – where the letters contained deliberative matter under s 47C(1), FOI Act – where letters created in furtherance of the tripartite convention – where the confidentiality convention applies to protect the neutrality of the Crown and ensure full and frank discussion between Australian Prime Ministers and the Queen – where release of documents would on balance be contrary to the public interest
LEGISLATION
Freedom of Information Act 1982 (Cth) ss 33, 47C
Governor-General Act 1974 (Cth)
Freedom of Information Act 2000 (UK) s 37
CASES
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Commonwealth v Hittich (1994) 53 FCR 152
Dickson v Viscount Combermere (1863) 3 F & F 527; 176 ER 236
Evans v Information Commissioner [2012] UKUT 313 (Administrative Appeals Chamber)
Jorgensen v Australian Securities and Investments Commission [2004] FCA 143; (2004) 208 ALR 73
Kamasaee v Commonwealth (No 4) [2016] VSC 492; (2016) 52 VR 368
Maksimovic and Attorney-General’s Department [2008] AATA 1089; (2008) 109 ALD 417
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423
Re Dunn and Department of Defence [2004] AATA 1040; (2004) 84 ALD 419
Re Haneef and Australian Federal Police [2009] AATA 51; (2009) 49 AAR 395
Re Lobo and Department of Immigration and Citizenship [2011] AATA 705; (2011) 56 AAR 1
ReMaher & Attorney-General’s Department (1985) 7 ALD 731
Re McKnight and Australian Archives (1992) 28 ALD 95
Re O’Donovan and Attorney-General’s Department (1985) 8 ALD 528
Re State of Queensland and Australian National Parks and Wildlife Service (1986) 13 ALD 158; (1986) 5 AAR 328
Re Wang and Department of Employment, Education and Training (1988) 15 ALD 497
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111
Secretary, Department of Foreign Affairs and Trade v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15
Van Xinh Bui and Department of Foreign Affairs and Trade [2005] AATA 97
Xenophon v Secretary, Department of Defence [2019] AATA 3669
SECONDARY MATERIALS
Walter Bagehot, The English Constitution (Vol III, 1909)
Vernon Bogdanor, The Monarchy and the Constitution (Clarendon Press, 1995)
Peter Boyce, The Queen’s Other Realms (2008)
Ian Killey PSM, Constitutional Conventions in Australia: An Introduction to the Unwritten Rules of Australia’s Constitutions (Australian Scholarly Publishing, 2012)
Sir Ivor Jennings, The Law and the Constitution (5th edition, 1959)
A Twomey, The Veiled Sceptre – Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018)
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (version 1.4, December 2016)
The Cabinet Manual: A guide to laws, conventions and rules on the operation of government (1st edition, 2011)
REASONS FOR DECISION
Justice M A Perry, Deputy President
20 December 2019
1 INTRODUCTION
[1]
2 WITNESSES
[9]
3 ISSUES
[14]
3.1 The substantive issues
[14]
3.2 A preliminary issue: inspection of the Letters
[15]
4 PRINCIPLES
[19]
4.1 The scheme of the FOI Act
[19]
4.2 The exemption in s 33 of the FOI Act
[31]
4.2.1 Criteria in s 33, FOI Act
[31]
4.2.2 The respondent’s contention that the content of the individual Letters is determinative
[37]
4.2.3 “would, or could reasonably be expected to …” (s 33(a)(iii), FOI Act)
[39]
4.2.4 “the international relations of the Commonwealth” (s 33(a)(iii), FOI Act)
[50]
5 DOES THE EXEMPTION IN S 33 OF THE FOI ACT APPLY?
[58]
5.1 The issues
[58]
5.2 Relevant constitutional relationships, practices and conventions
[63]
5.2.1 The relationship between Australia, the Prime Minister of Australia, the Queen and the Royal Household
[64]
5.2.2 Correspondence passing between an Australian Prime Minister and the Queen
[72]
5.2.3 The convention and practice of confidentiality with respect to correspondence between Australian Prime Ministers and the Queen
[77]
5.2.4 Recognition of the convention of confidentiality in the UK and the Commonwealth realms
[85]
5.3 Could it reasonably be expected that disclosure of the Letters could damage the international relations of the Commonwealth?
[97]
5.3.1 The scope of the confidentiality convention
[98]
5.3.2 Expectations on the part of the Queen, the Royal Household and Australia that the convention will be strictly observed
[100]
5.3.3 Disclosure would breach the confidentiality convention and be viewed as such
[102]
5.3.4 Damage which could reasonably be expected to flow from disclosure of the Letters for Australia’s relationship with the Queen and Royal Household
[105]
5.3.5 Damage to Australia’s international relations with the UK and other Commonwealth nations
[115]
5.3.6 The respondent’s submission that disclosure would not damage Australia’s international relations because it is required by law
[121]
5.3.7 The evidence of other publicly available correspondence between the Prime Minister and the Queen
[127]
5.4 Conclusion on s 33 exemption
[128]
5.5 Are the Letters conditionally exempt under s 47C of the FOI Act and would release be contrary to the public interest?
[129]
5.5.1 The issues
[129]
5.5.2 Are the s 47C Letters conditionally exempt under s 47C because they contain deliberative matter?
[131]
5.5.3 Would release of the s 47C Letters be contrary to the public interest?
[135]
6 CONCLUSION
[145]
1. INTRODUCTION
This case concerns a request by Mr William Summers for access under the Freedom of Information Act 1982 (Cth) (FOI Act) to “all letters sent from the Prime Minister(s) of Australia to Queen Elizabeth II (or her representatives) since 1 January 2013”. The Department of the Prime Minister and Cabinet (the Department) was deemed to have refused this request when it did not make a decision on 8 January 2017.
On 10 January 2017, Mr Summers requested that, in effect, the Office of the Australian Information Commissioner (OAIC) review the deemed decision under s 54L of the FOI Act.
On 18 January 2017, the Acting Assistant Secretary of the Department (the Assistant Secretary) made a decision refusing access to the 11 documents then identified as relevant to the request pursuant to arrangements approved by the Secretary of the Department under s 23 of the FOI Act (T10). In making her decision, the Assistant Secretary relied on the damage to the international relations of the Commonwealth exemption in s 33(a)(iii) of the FOI Act and the deliberative processes exemption in s 47C.
Mr Summers notified the OAIC on 20 January 2017 that he was not satisfied with that decision and wished the review to proceed (T12). During the course of the review before the Information Commissioner, the Department identified a further two documents as being within the scope of the request, but submitted that the 13 documents are exempt in full from disclosure under s 33(a)(iii) and that 12 of them would also be conditionally exempt in full under s 47C.
On 16 January 2018, the Information Commissioner made a decision under s 55K of the FOI Act setting aside the decision of the Assistant Secretary, and substituted a decision that the documents are not exempt from release (T26). The Department seeks review, pursuant to s 57A of the FOI Act, in the Administrative Appeals Tribunal (Tribunal) of this decision.
In the course of preparing for the hearing before the Tribunal, the Department located a further document relevant to Mr Summers’ request. As a result, there are 14 documents now in issue (applicant’s statement of facts, issues and contentions (ASFIC) at [7]). The Department alleges (and the respondent does not dispute) that all 14 documents comprise letters from the Prime Minister of Australia to Her Majesty the Queen between 1 January 2013 and 8 November 2016 (the Letters). Aside from document 10, in respect of which a claim is made only under s 33(a)(iii), the Letters are said to be both exempt under s 33(a)(iii) and provisionally exempt under s 47C.
Where, as here, a claim is made that a document is an exempt document under s 33 of the FOI Act, the Tribunal must request the Inspector‑General of Intelligence and Security to appear personally and give evidence on the damage that might be caused (relevantly) to the international relations of the Commonwealth if access to the document were given in accordance with the request (s 60A(2)(a)(iii)). The Inspector‑General must comply with such a request unless, in her opinion, she is not appropriately qualified to give evidence on the matters in relation to which her evidence has been requested. In the present case, the Deputy President wrote to the Inspector-General requesting her to give evidence pursuant to s 60A(2) of the FOI Act. By letter dated 15 March 2019, the Inspector-General replied advising that the question of whether the correspondence from the Prime Minister to the Queen at issue in this matter could reasonably be expected to harm international relations was outside her area of expertise as Inspector-General and for this reason, she declined to give evidence in the matter.
For the reasons set out below, I have reached the conclusion that all of the Letters are exempt under s 33(a)(iii) of the FOI Act. Further and in any event, I consider that the Letters, save for document 10, are conditionally exempt under s 47C and that it would be contrary to the public interest for them to be released.
2. WITNESSES
The Secretary relied upon the affidavit evidence of the following witnesses, both of whom were also cross-examined at the hearing:
(1)the affidavit of Andrew Todd, First Assistant Secretary of the Consular and Crisis Management (CCM) Division, Department of Foreign Affairs and Trade (DFAT) affirmed on 25 May 2018 (the Todd affidavit); and
(2)the affidavits of Mark Fraser LVO OAM, Official Secretary to the Governor-General, affirmed on 1 June 2018 (the first Fraser affidavit) and affirmed on 14 August 2018 (the supplementary Fraser affidavit).
Mr Fraser held the position of Deputy Official Secretary to the Governor-General from 16 January 2009 before being appointed to the position of Official Secretary to the Governor-General (OSGG) from 26 June 2014 to 17 August 2018 (T, 21 March 2019 at p. 43). The OSGG is an office established by s 6 of the Governor-General Act 1974 (Cth) constituted by the Official Secretary and the staff employed under s 13 of the Governor-General Act. The function of the OSGG is to assist the Governor-General (s 6(3), Governor-General Act). Subsequently, Mr Fraser came to hold the position of First Assistant Secretary of the Protocol and International Visits Division of the Department which was his current position at the time of the Tribunal hearing (T, 21 March 2019 at p. 43.15).
Mr Todd has over 25 years’ experience as a career diplomat. He has been the First Assistant Secretary of the CCM Division since October 2017. His responsibilities in that position include overseeing DFAT’s consular policy, crisis response, crisis management, and travel advice. Mr Todd was also the Deputy High Commissioner at the Australian High Commission in London from January 2013 to December 2016. His responsibilities as Deputy High Commissioner included assisting the Australian High Commissioner in managing Australia’s diplomatic relationship with the United Kingdom (UK), providing information and advice to the Australian Government on developments in the UK, developing policy responses and initiatives, communicating with senior UK government officials, and liaising and communicating with members of the Royal Household, including the Private Secretary to the Queen, regarding Australia’s constitutional relationship with the Queen. Mr Todd held a variety of earlier roles within DFAT including Counsellor, Congressional Liaison at the Embassy of Australia in Washington DC (1998-2002) where his responsibilities included reporting on domestic political developments in the United States and promoting links between Australia and the United States. During his posting to the High Commission in London, Mr Todd was involved in facilitating the transmission of a number of letters from Australian Prime Ministers to the Private Secretary’s Office (Todd affidavit at [9]).
Based upon these matters, I accept that Mr Fraser and Mr Todd hold ample relevant experience qualifying them in particular to explain the constitutional conventions and practices pertaining to correspondence between the Queen and Australian Prime Ministers, and the practices and conventions observed by other Commonwealth realms. In referring to the Commonwealth realms, I am referring to those countries within the Commonwealth of Nations for whom the Queen is monarch, including the UK, Australia, Canada, and New Zealand. I also accept that, based upon their extensive experience and particularly Mr Todd’s extensive experience as a diplomat, they are qualified to give evidence as to the sensitivity of communications between the Queen and the Prime Minister and the nature and extent of damage to Australia’s international relations with the Queen, the Royal Household, and other countries, particularly the Commonwealth realms, which may ensue if correspondence from an Australian Prime Minister to the Queen were released. Nor was their expertise to address the matters the subject of their evidence challenged by the respondent. In this regard, I consider that it is appropriate to adopt an approach akin to that adopted by Macaulay J in Kamasaee v Commonwealth (No 4) [2016] VSC 492; (2016) 52 VR 368 where his Honour said, in considering evidence by Mr Sloper, the First Assistant Secretary of the Pacific Division of the Department of Foreign Affairs and Trade, on the sensitivity of material to Australia’s relationship with Papua New Guinea, that:
36. … I bear in mind the risk of underestimating the sensitivity of certain information by virtue of not having the nuanced understanding that a person with Mr Sloper’s knowledge and experience would have.
37. For these reasons I consider that Mr Sloper’s views should be accorded significant weight especially regarding specific subject matter which is likely to be of real sensitivity. Indeed, because of Mr Sloper’s specialised experience in these matters, and because the court does not have the same experience in dealing with the diplomatic service network and foreign governments, the court would be slow to adopt a view different to his concerning the significance and effect of communications between governments and officials, and within a government, about another government and its officials. Of course, that is not to deny that the court is bound to form its own views about these matters, but I would need to have a good reason to prefer some other view.
Finally, Mr Todd had read a copy of the Letters for the purpose of giving evidence about them in the Tribunal proceeding in the lead-up to affirming his affidavit on 25 May 2018 but had not read them since that time (Todd affidavit at [6]; T, 21 March 2019 at p. 62.1-21). Mr Fraser, however, had not read the Letters and had no personal knowledge of their contents. Rather, Mr Fraser relied upon advice from the solicitors for the Department that the Letters were correspondence between Australian Prime Ministers and the Queen (T, 21 March 2019 at p. 44.27-45).
3. ISSUES
3.1 The substantive issues
There are three substantive issues for determination.
(1)Are the Letters exempt from release under s 33(1)(iii) of the FOI Act because disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth?
(2)If the answer to (1) is “no”, are the Letters conditionally exempt under s 47C of the FOI Act?
(3)If the answer to (2) is “yes”, would release of the Letters on balance be contrary to the public interest?
3.2 A preliminary issue: inspection of the Letters
A preliminary issue also arose as to whether the Tribunal should inspect the Letters in order to determine whether they were exempt under s 33.
Section 58E of the FOI Act limits the circumstances in which the Tribunal may require production and inspection of documents claimed to be exempt under ss 33, 34 and 45A of the FOI Act. Section 58E relevantly provides that:
(1) In any proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document under section 33, 34 or 45A, the Tribunal is entitled to require the production of the document in accordance with this section and not in accordance with section 64, section 37 or 38AA of the Administrative Appeals Tribunal Act 1975 or otherwise.
(2) If the Tribunal is not satisfied by evidence on affidavit or otherwise that the document is an exempt document under section 33, 34 or 45A, the Tribunal may require the document to be produced for inspection by the Tribunal as constituted for the purposes of the proceeding.
(3) If, after an inspection of a document under this section, the Tribunal is satisfied that the document is an exempt document, the Tribunal must return the document to the person by whom it was produced without permitting a person to have access to the document or disclosing the contents of the document to a person, unless the person is:
(a) a member of the Tribunal as constituted for the purposes of the proceeding; or
(b) a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or
(c) in the circumstances permitted under paragraph 60A(6)(a) – the Inspector‑General of Intelligence and Security.
As such, it was not in issue that the Tribunal was only entitled to require production of documents which are claimed to be exempt under s 33 if the Tribunal is not satisfied by evidence on affidavit or otherwise that the documents are exempt under s 33 (ss 58E(1) and (2), FOI Act).
Having considered the Department’s affidavit evidence in chief and the parties’ submissions about the evidence in writing and at the hearing, I determined at the hearing that I was not satisfied that the Letters were exempt documents under s 33 of the FOI Act based upon the material before me at that time. Nor was there any suggestion that the documents were exempt under ss 34 or 45A. In the circumstances, I considered that it was appropriate to require the documents to be produced for inspection by the Tribunal as constituted by me under s 58E(1) and (2) as the respondent submitted, subject to appropriate confidentiality directions. Notably, s 58E(2) provides only for inspection “by the Tribunal as constituted for the purposes of the proceeding”. It does not vest any discretion in the Tribunal to permit the parties and/or their legal representatives to inspect the documents.
4. PRINCIPLES
4.1 The scheme of the FOI Act
The general objects of the FOI Act are set out in s 3 as follows:
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better‑informed decision‑making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
The term “agency” is defined to include “a Department” or a “prescribed authority” with the latter including the person holding, or performing the duties of, an office established by an enactment. It was not in issue that the Department was “a Department” for the purposes of the Act.
In furtherance of the object in s 3(1)(b) of the FOI Act, s 11(1) provides that:
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(emphasis added)
The right created by s 11(1) is not affected by the person’s reasons or perceived reasons for seeking access (s 11(2)).
Conversely, s 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the Act “subject to this section”. As to the latter, s 11A(4), (5) and (6) exempt certain classes of documents from the obligation to give access as follows:
(4) The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
Note: Access may be given to an exempt document apart from under this Act, whether or not in response to a request (see section 3A (objects – information or documents otherwise accessible)).
(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6) Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both:
(a) a conditionally exempt document; and
(b) an exempt document:
(i) under Division 2 of Part IV (exemptions); or
(ii) within the meaning of paragraph (b) or (c) of the definition of exempt document in subsection 4(1).
(emphasis added)
The term “exempt document” is relevantly defined in s 4(1) to include “a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)”. Section 31B in turn provides that:
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
(emphasis in original)
In short, as summarised in the table in s 31A:
How this Act applies to exempt and conditionally exempt documents Item If … then … because of … 1 a document is an exempt document under Division 2 (exemptions) or under paragraph (b) or (c) of the definition of exempt document in subsection 4(1) access to the document is not required to be given subsection 11A(4). 2 a document is a conditionally exempt document under Division 3 (public interest conditional exemptions) access to the document is required to be given, unless it would be contrary to the public interest subsection 11A(5) (see also section 11B (public interest factors)). 3 a document is an exempt document as mentioned in item 1, and also a conditionally exempt document under Division 3 access to the document is not required to be given subsections 11A(4) and (6), and section 32 (interpretation). 4 access to a document is refused because it contains exempt matter, and the exempt matter can be deleted (a) an edited copy deleting the exempt matter must be prepared (if practicable); and
(b) access to the edited copy must be given;
section 22. 5 a document is an exempt document because of any provision of this Act access to the document may be given apart from under this Act section 3A (objects – information or documents otherwise accessible).
It follows, as French CJ, Crennan, Kiefel and Bell JJ emphasised in Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645 (Kline) at [37], that the FOI Act “does not pursue its objects, as legislative purposes, at any cost.” Rather, their Honours explained:
37. … The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
As to the balance struck by the Act, it is notable that the Governor-General is not subject to the FOI Act because she or he is not an “agency” as defined in s 4 of the Act (Kline at [33]). Furthermore, s 6A of the FOI Act provides that the Act does not apply to any request for access to a document of the OSGG unless the document is of an administrative nature, that is, unless it concerns the management and administration of office resources (Kline at [41]). It follows, as the Department emphasises, that if Mr Summers had requested the Letters from the Office of the Official Secretary to the Governor-General (OOSGG) and the OOSGG had been in possession of the Letters, the OOSGG would have been entitled to refuse access under s 6A(1). However, as the respondent submitted, there is no express exemption for correspondence of this nature where it is held by the Department. As such, the question of access must be decided by reference to Division 2 (ss 33-47A) of Part IV of the FOI Act which creates a variety of exemptions from the obligations imposed by the FOI Act, and Division 3 of Part IV which creates a number of conditional exemptions.
Exemptions in Division 2 include cabinet documents (s 34), documents affecting law enforcement and protection of public safety (s 37), and documents protected by secrecy provisions or containing material obtained in confidence (ss 38 and 45 respectively). I consider the exemption in s 33 later in these reasons.
As the respondent acknowledged, a document which falls within an exemption in Division 2 of Part IV such as s 33, must not be disclosed by virtue of s 11A(4). Nothing further need be established.
The position is different with respect to documents falling only within Division 3 of Part IV. As mentioned, Division 3 contains a scheme of conditional exemptions, i.e. exemptions from disclosure under s 11 that are conditional upon there being a public interest to be served by non-disclosure. As such, it is not sufficient merely to establish that a document is of a kind falling within a provision in Division 3. In the present case, the Department alleges that all but one of the Letters are also or in the alternative conditionally exempt under s 47C, and resists their disclosure on the ground that it would be contrary to the public interest. I consider the conditional exemption under s 47C below, after considering whether s 33 applies.
4.2 The exemption in s 33 of the FOI Act
4.2.1Criteria in s 33, FOI Act
Section 33 of the FOI Act provides that:
A document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to:
(i) the security of the Commonwealth;
(ii) the defence of the Commonwealth; or
(iii) the international relations of the Commonwealth; or
(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
Note: See also subsection 4(10).
(emphasis added)
Before turning to consider the proper construction of s 33(a)(iii), it is helpful to emphasise the following aspects of s 33.
First, as the Full Court held in Commonwealth v Hittich (1994) 53 FCR 152 at 154, s 33(a)(iii) (then s 33(1)(a)(iii)) “does not provide any basis for a public interest criterion extending beyond the terms of the section. Either a document is within the section, in which case it is an exempt document, or it is not”: see also e.g. Re O’Donovan and Attorney-General’s Department (1985) 8 ALD 528 (O’Donovan) at 534 (19)-(20) (Deputy President Hall); and Re Lobo and Department of Immigration and Citizenship [2011] AATA 705; (2011) 56 AAR 1 (Lobo) at [85] (Deputy President Forgie). Equally, the strong personal interest which an applicant may have in obtaining access to the document in question is irrelevant: see e.g. Van Xinh Bui and Department of Foreign Affairs and Trade [2005] AATA 97 (Bui) at [24] (Allen SM); Re Wang and Department of Employment, Education and Training (1988) 15 ALD 497 (Wang) at 500 (17) (Deputy President Thompson).
Secondly, the criteria prescribed by s 33(a) and (b) do not turn upon an assessment of the reasonableness of the Department’s claims. Rather, they turn upon cause and effect which can reasonably be anticipated (ReMaher & Attorney-General’s Department (1985) 7 ALD 731 (Re Maher) at 742 (Davies J (President))). As such, the Department correctly submits that s 33 does not require the Tribunal to consider the objective reasonableness of the Queen’s expected response to disclosure or that of the Royal Household or member States of the Commonwealth.
Thirdly, the Full Court observed in Secretary, Department of Foreign Affairs and Trade v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15 (Whittaker) that the relevant time for considering damage that might be caused by disclosure for the purposes of s 33(a) is the time at which disclosure is to occur, in contrast to s 33(b). As the Court explained:
26. … That is to say, disclosure of a document at the time of its creation might cause damage, but if at the time when access is sought disclosure would not cause damage, the document will not be exempt under s 33(1)(a)(iii). On the other hand, if disclosure of a document, whenever the disclosure is made, would divulge any matter communicated in confidence, the document will be exempt under s 33(1)(b), even if that matter is no longer confidential at the time when access is sought.
Finally, it is clear from s 58(2) that the Tribunal has no discretion to permit disclosure once satisfied that the ground of exemption in s 33(a) or (b) is established even though an agency may permit access in accordance with other laws and practices: see e.g. O’Donovan at 534 (20) (Deputy President Hall); and Re Dunn and Department of Defence [2004] AATA 1040; (2004) 84 ALD 419 at [80] (Full Tribunal).
4.2.2The respondent’s contention that the content of the individual Letters is determinative
The respondent contends that s 33(a)(iii) of the FOI Act should not be construed as conferring an absolute exemption upon a class of communications between the Queen and Prime Minister. He submits that, in contrast to the absolute exemption under the FOI Act afforded to the Governor-General and the OSGG, there is no general exemption for this class of information and s 33 should not be construed as if it created such an exemption. As such, the respondent submits that the content of each of the Letters should be considered individually in order to determine whether their content reveals that they could reasonably be expected to cause damage to the international relations of the Commonwealth. To conclude otherwise, in the respondent’s submission, would have the effect of creating an exemption for all information contained in a letter from a Prime Minister to the Queen irrespective of its content despite the fact that the Parliament has not seen fit to enact any such general exemption. In his submission, it would also be highly surprising if s 33(a)(iii) operated as if it were an absolute exemption in relation to communications with the Queen where that result has otherwise been achieved only by the enactment of a specific exemption to that effect in the UK and New Zealand (RSFIC at [23]-[25]).
This construction should be rejected. There is no foothold in the text of s 33 for a construction that would limit the grounds on which a document may reasonably be expected to cause damage to Australia’s international relations, or indeed to Australia’s security or defence as is also provided for in s 33(a). Nor did the respondent cite any authority in support of the submission that the terms of s 33 should be read down in the manner suggested or point to any purpose to be served by so narrow a construction. To the contrary, the reason for the breadth of the exemption is obvious from the significance of the subject matter for the nation with which the provision deals. It can readily be imagined, for example, that in some cases the risk to Australia’s international relations, defence or security might be posed by the source of the information, the information itself, or in this case, as the evidence establishes, by the very nature of the communication itself. No reason is apparent as to why the provision should exempt some documents and not others depending upon such technical distinctions. Rather, the “check” in the balance between these vital interests on the one hand, and the public’s interest in disclosure on the other hand, is found in the necessity to establish that disclosure “would, or could reasonably be expected, to cause damage” to one of the specified interests. It is not therefore sufficient, as I later explain, merely to assert such damage.
4.2.3“would, or could reasonably be expected to …” (s 33(a)(iii), FOI Act)
It was not in issue that, by virtue of s 61(1)(a) of the FOI Act, the onus lies upon the Department on this review of establishing that the decision of the Information Commissioner is not justified, or that the Tribunal should give a decision adverse to the applicant in relation to the request for access. That provision does not specify that the onus must be discharged on the balance of probabilities or according to some other standard.
The Department submitted in its SFIC at [44] that “the phrase ‘could reasonably be expected to’ does not require the decision-maker to be satisfied, on the balance of probabilities, that the release of the document will cause damage of a relevant kind. What is required is a possibility (and not probability) of damage that is reasonably based and supported not only by assertion but by evidence of probative value” (footnotes omitted). The respondent submitted that the onus of establishing that the exemptions are made out must be discharged by the Department on the balance of probabilities, relying upon the decision in Fisse v Secretary, Department of the Treasury [2008] FCAFC 188; (2008) 172 FCR 513 at [30] and [36] (Buchanan J) and [91] (Flick J) (citing with approval Jorgensen v Australian Securities and Investments Commission [2004] FCA 143; (2004) 208 ALR 73 (Jorgensen) at [65] (Weinberg J)): see the respondent’s statement of facts, issues and contentions (RSFIC) at [16]; cf e.g. the approach adopted in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 at [115] (Flick and Perry JJ).
However, the decision in Fisse concerned the question of whether the Tribunal had erred in holding that a report was exempt under s 34(1)(a) of the FOI Act on the ground that it was created for the purpose of consideration by, and was in fact submitted to, Cabinet, as well as s 36(1)(b) on the ground that disclosure would be contrary to the public interest because it would breach Cabinet confidentiality. Section 33, on the other hand, requires the Tribunal relevantly to engage in an evaluative task, namely, to determine whether, if disclosed, the document “would, or could reasonably be expected to, cause damage” to one of the enumerated interests. The answer initially given by Mr Howe QC for the Department to this difficulty was that the Tribunal must be satisfied on the balance of probabilities that damage to the international relations of the Commonwealth is a reasonable possibility (T, 21 March 2019 at 8.34-9.9) – a test, with respect, that makes little sense. On being further pressed, however, he submitted that “basically your Honour simply needs to be satisfied as to whether or not the infliction of harm is a real possibility based upon matters of substance and not just mere assertion or allegation and the like” (T, 21 March 2019 at 9.8-9). However, even to speak of “a real possibility” is to impose a gloss on the words of the section.
In this regard it is true that in Jorgensen Weinberg J stated with respect to the onus imposed by s 61 of the FOI Act that it “seems” that the applicant has the onus of proving that the decision to claim the exemption is justified “on the balance of probabilities”, citing Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 (Searle) at 116. It is also true to say that the grounds on which the exemption was claimed in Jorgensen included s 37(1)(b) of the FOI Act which provided that a document was exempt if its disclosure “would, or could reasonably be expected to” have certain effects. However, Weinberg J does not appear to have definitively decided the issue, but only to have indicated what “seems” to be the test. Nor, with respect and in any event, does the decision in Searle support the proposition that an applicant must establish that it is more probable than not that an exemption expressed in terms of reasonable expectations applies to the documents in question. To the contrary, the Full Court in Searle held that the words “could reasonably be expected to” in s 43(1)(b) and (c) of the FOI Act “are ordinary words of the English language and are used in the sense in which they would be employed in common parlance” (at 122). In so holding, the Full Court approved the approach of Bowen CJ and Beaumont J in Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 (Cockcroft) at 190 that:
In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information” were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based: see Kioa v West [(1985) 159 CLR 550] per Mason J and per Gibbs CJ.
The majority of the Tribunal thought an assessment of what was more probable than not was called for. As Woodward J has pointed out, there are difficulties in this approach for the legislature has chosen not to introduce the notion of a “probable” result: cf Ex parte White; Re White (1885) 14 QBD 600. It is also unnecessary to consider whether an “even chance” or something of that kind is needed. It is preferable to confine oneself to the language of the provision itself and to attempt to form an opinion, on the evidence, as to what can reasonably be expected to happen if disclosure occurs. In our opinion, in departing from the terms of s 43(1)(c)(ii) and requiring the applicants to establish a case on the balance of probabilities, the majority of the Tribunal fell into error in their construction of the provision.
(emphasis added)
With respect to these passages, the Full Court in Searle at 123 explained that:
Their Honours did not suggest … that it was sufficient that there be a possibility not irrational, absurd or ridiculous that the specified consequence would occur. Their Honours specifically rejected that approach, saying that the words “could reasonably be expected” meant what they said. The practical application of their Honours’ view will not necessarily lead to a result different from that proposed by Sheppard J [also in Cockcroft].
In the application of s 43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable.
(emphasis in the original)
Applying these principles, the Full Court in Searle found at 123 that the Tribunal in that case had fallen into error:
In par 58 of its reasons, the Tribunal said:
“A decision-maker is required to make a judgment as to whether there is a ‘reasonable’ basis for a claim that disclosure of information would destroy or diminish the commercial value of such information, as distinct from something that is ‘irrational, absurd or ridiculous’.[”]
However, the question under s 43(1)(b) is not whether there is a reasonable basis for a claim for exemption but whether the commercial value of the information could reasonably be expected to be destroyed or diminished if it were disclosed. These two questions are different. The decision-maker is concerned, not with the reasonableness of the claimant’s behaviour, but with the effect of disclosure. The Administrative Appeals Tribunal failed to determine that question and erred in law in this respect.
The Full Court’s understanding in Searle of the relevant passages in Cockcroft was subsequently approved by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 (McKinnon) at [60] who held that:
The expression “not irrational, absurd or ridiculous” is not synonymous with “reasonable grounds”. Of course, absurd, irrational or ridiculous grounds are not reasonable grounds. But the words “reasonable grounds” do not denote grounds which are “not irrational, absurd or ridiculous”. The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them.
(See also McKinnon at [129] (Callinan and Heydon JJ); and e.g. in the Tribunal, Bui at [15]-[17] (Allen SM).)
This view of the authorities is reflected in the Guidelines issued by the OAIC (the FOI Guidelines) to which regard must be had by virtue of s 93A(2) of the FOI Act. Specifically, the FOI Guidelines state at [5.17] that the use of the word “could” in this context is less stringent than “would”, and requires an analysis of the reasonable expectation rather than the certainty of an event or damage occurring: see also e.g. Lobo at [74] (Deputy President Forgie).
Applying the decisions in Searle and Cockcroft and the FOI Guidelines, the question posed by s 33 is therefore (relevantly) whether disclosure of the Letters “would, or could reasonably expected to” cause damage to the international relations of the Commonwealth.
Finally, paragraph [5.37] of the FOI Guidelines explains that:
… The expectation of damage to international relations must be reasonable in all the circumstances, having regard to the nature of the information; the circumstances in which it was communicated; and the nature and extent of the relationship.
(See also O’Donovan at 534 (21) (Deputy President Hall); and Bui at [23] (Allen SM).)
It follows that the grounds for the exemption will vary according to the circumstances of each case (FOI Guidelines at [5.37]-[5.38]). By way of example, the FOI Guidelines explain that:
5.38 For example, the disclosure of a document may diminish the confidence which another country would have in Australia as a reliable recipient of its confidential information, making that country or its agencies less willing to cooperate with Australian agencies in future. On the other hand, the disclosure of ordinary business communications between health regulatory agencies revealing no more than the fact of consultation will not, of itself, destroy trust and confidence between agencies.
4.2.4“the international relations of the Commonwealth” (s 33(a)(iii), FOI Act)
There is no definition in the FOI Act of the phrase “international relations of the Commonwealth”. The phrase however has been interpreted broadly in decisions of the AAT. The relevant principles may be summarised as follows.
First, as Deputy President Forgie explained in Lobo at [75], the term international relations is not meant to be used as a particular term of art but rather “refers simply to the connection, ‘social, political or personal contact between …’ … the Commonwealth and another or other countries so that the connection is ‘international’” (emphasis added). This includes relations with international organisations, as the FOI Guidelines recognise at [5.36]. In this regard, the High Court held in Sue v Hill (1999) 199 CLR 462 at [65], [96] (Gleeson CJ, Gummow and Hayne JJ) and [172]-[173] (Gaudron J) that the UK is a foreign power. It follows that Australia’s relationship with the UK is an international one.
Secondly, s 33(a)(iii) extends to damage to relations between agencies of the Commonwealth and of other governments where those relations “may have repercussions on the international relations of their respective [S]tates”: Re Haneef and Australian Federal Police [2009] AATA 51; (2009) 49 AAR 395 (Re Haneef) at [38] (Deputy President McPherson CBE). Thus, the FOI Guidelines provide at [5.36] that “[t]he exemption is not confined to relations at the formal diplomatic or ministerial level. It also covers relations between Australian Government agencies and agencies of other countries”.
Thirdly, as the Department submits in its SFIC at [48], avoiding disclosures that diminish the confidence which a foreign authority would have in Australia as a reliable recipient of confidential information is a well-recognised basis for invoking s 33(a)(iii): see e.g. Re McKnight and Australian Archives (1992) 28 ALD 95 at 112 (Deputy President Johnston); Bui at [21] (Allen SM); and Xenophon v Secretary, Department of Defence [2019] AATA 3669 (Xenophon). As the FOI Guidelines state at [5.36], “[t]he phrase ‘international relations’ has been interpreted as meaning the ability of the Australian Government to maintain good working relations with other governments and international organisations and to protect the flow of confidential information between them” (emphasis added).
Thus it is unnecessary to find loss or damage in monetary terms in order to attract the exemption, as Davies J found in Re Maher at 742. Rather, his Honour continued:
The phrase “damage to international relations of the Commonwealth” comprehends intangible damage to Australia’s reputation though such damage may be difficult to assess. International relations have never been matters easy to define or to quantify. … Regard must be had, inter alia, to the relationships between particular persons in one government and persons in another. Damage to personal relationships may cause considerable harm for a time at least.
(emphasis added)
(See also FOI Guidelines at [5.37].)
For example, in Maksimovic and Attorney-General’s Department [2008] AATA 1089; (2008) 109 ALD 417 at [12], the Tribunal found that the names of Costa Rican intelligence officers were exempt from disclosure under s 33(1)(a)(iii) of the FOI Act on the ground that if their names were disclosed, there was a reasonable expectation that damage to Australia’s international relations with Costa Rica by way of a lessening of trust or confidence would occur.
Similarly, in Wang, Deputy President Thompson accepted that two letters from the Embassy of the People’s Republic of China to the Department of Immigration attracted the exemption from disclosure under s 33(1)(a)(iii) of the FOI Act having regard to the circumstances in which the letter was disclosed and the expectations of the foreign government concerned as to the confidentiality of the terms in which the letters were expressed. Specifically, Deputy President Thompson found at 501 that:
… The circumstances proved in the present case are that the Chinese government, through its Embassy in Canberra, has made it known that it objects to the disclosure of the two letters. The letters relate to a matter of some sensitivity to the government of China … Although the general nature of the contents of the letters has been disclosed, the government of China may properly be concerned that the precise mode of its expression of its views in those letters should not be known by persons other than those in the service of the Australian government who have a reason to know it. In those circumstances, to grant access to those two letters could reasonably be expected to anger the Chinese government. Although no doubt, as Mr Irvine [an officer with the Department of Foreign Affairs and Trade with experience in international diplomacy] stated, China’s participation in its relationship with Australia is founded primarily on its self-interest, it might well regard that self-interest as threatened by a deliberate refusal to meet its wishes with regard to the disclosure of those letters. I have come to the conclusion, therefore, that Mr Irvine’s opinion that such disclosure could reasonably be expected to damage the international relations of the Commonwealth and the People’s Republic of China is correct.
Thus the view which a foreign State may take with respect to disclosure under its laws and practices is relevant to the question of whether disclosure may damage Australia’s international relations with that State where the failure to respect that State’s view may lead to a diminishment in co-operation: see by analogy Re State of Queensland and Australian National Parks and Wildlife Service (1986) 13 ALD 158; (1986) 5 AAR 328 (Australian National Parks and Wildlife) at ALD 161, AAR 336; and Lobo at [84] (Deputy President Forgie). This is not, however, to suggest that the mere fact that a foreign State has expressed concern about disclosure is sufficient to attract the operation of s 33(a): see e.g. O’Donovan at 534 (21).
5. DOES THE EXEMPTION IN S 33 OF THE FOI ACT APPLY?
5.1 The issues
It was not in issue that all of the Letters were from Prime Ministers of Australia to the Queen and that she in fact received the correspondence in her capacity as the Queen of Australia.
The Department submits that release of the Letters could reasonably be expected to cause damage to the international relations of the Commonwealth and, in particular, would, or could reasonably be expected to:
(1)diminish the confidence of foreign authorities in Australia as a reliable recipient of its confidential information; and
(2)damage the relationships between:
(a)Australia and the Queen;
(b)Australia (and especially the OOSGG) and the Royal Household; and
(c)Australia and other Commonwealth realms, and the other countries within the Commonwealth of Nations more generally.
(ASFIC at [40]-[41].)
Underpinning these submissions is the constitutional convention that communications between the Queen and Her Ministers, including the Prime Minister, are confidential by their very nature and must remain confidential (ASFIC at [19]). The Department submits that the existence of the convention of confidentiality is supported by the evidence and by a substantial body of literature and legal principle. In the Department’s submission, the convention of confidentiality extends to correspondence between the Queen and the governments of each of the Commonwealth realms, being the 16 countries (including the UK) of which the Queen is the constitutional monarch. Because the Queen is the Sovereign of all 16 Commonwealth realms concurrently, the confidentiality of communications with the Queen is mutually important to all of the Commonwealth realms (ASFIC at [20]). The Department also submits that the significance of the convention of confidentiality as a core element of the system of Parliamentary democracy in the UK and other Commonwealth nations strongly supports and explains the proposition that Australia’s relations with those countries could reasonably be expected to be damaged if Australia discloses the Letters in breach of the convention (supplementary ASFIC at [2]).
While Mr Summers accepts that “there is a general convention that correspondence between The Queen and her advisers is confidential” (RSFIC at [43]), Mr Summers submits that the exemption in s 33(a)(iii) does not apply for the following reasons.
(1)Section 33(a)(iii) cannot be construed so as to create by implication a general exemption for information falling within the class of information in letters sent to the Queen of Australia irrespective of its content. The question of whether the exemption applies can be determined only by examining the content of each of the Letters individually.
(2)Australia’s relationship with the Queen of Australia does not comprise part of Australia’s “international relations”. It is irrelevant that Her Majesty is also sovereign of other nations as the Queen is not one and indivisible throughout the Commonwealth and in her dealings with the Australian Prime Minister, the Queen is acting solely in her capacity as the Queen of Australia (RSFIC at [31]). Nor in any event does the evidence establish that disclosure would, or could reasonably be expected to, damage Australia’s relationship with the Queen as it is not reasonable to expect that the Queen would regard it as disrespectful or a personal affront if the Letters were required to be disclosed in accordance with Australian law (RSFIC at [36]-[40]). Furthermore, as none of the Letters were sent by the Queen but only by the Australian Prime Minister, disclosure could not affect the political neutrality of the Queen (RSFIC at [44]).
(3)As the Royal Household is not another government or an international organisation, any damage to the relationship between Australia and the Royal Household could not constitute damage to Australia’s international relations (RSFIC at [47.1]). In any event, there is insufficient evidence that disclosure of any Letter, even if entirely innocuous in content, could be expected to damage Australia’s relationship with the Royal Household (RSFIC at [47.2]).
(4)It is not reasonable to expect that disclosure of the Letter would diminish the confidence of foreign States in Australia as a reliable recipient of confidential information when none of the Letters were received by Australia, having all been sent by Australian Prime Ministers (RSFIC at [52]). Nor, as the facts of Evans v Information Commissioner [2012] UKUT 313 demonstrate, is all correspondence between the Royal Family and the Government confidential (RSFIC at [51]). Furthermore, it is unreasonable to expect that disclosing the Letters, irrespective of their age or contents, could damage Australia’s relationship with other countries (RSFIC at [53]-[54]).
In order to address these issues, it is necessary first to consider the constitutional roles of, and relationship between, the Queen and the Prime Minister of Australia and the conventions and practices that apply to correspondence between them. These matters are addressed in Part 5.2, “Relevant constitutional relationships, practices and conventions”. Secondly, against that context, the question of whether it can reasonably be expected that Australia’s international relations could be damaged by disclosure of the Letters then falls to be addressed.
5.2 Relevant constitutional relationships, practices and conventions
Save where otherwise indicated, the matters which follow were not in issue between the parties.
5.2.1The relationship between Australia, the Prime Minister of Australia, the Queen and the Royal Household
As the applicant contends, the roles of, and relationship between, the Queen and the Prime Minister of Australia are largely informed by convention, being long-standing practices established by general consent. The functions of the interaction of the Queen, the Royal Household, the Governor-General and the Prime Minister of Australia are explained at [7]-[15] of the first Fraser affidavit from which the following explanation is in large part drawn.
While Australia is a self-governing nation, the Queen is the constitutional head of the Australian Government. As the constitutional head of State of Australia and the other Commonwealth realms, Her Majesty conventionally has the right to be consulted, the right to encourage, and the right to warn (Walter Bagehot, The English Constitution (Vol III, 1909) at p. 75; A Twomey, The Veiled Sceptre – Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018) at pp. 93-107). This is known as the “tripartite convention” or the “classical trinity of rights”: see also Evans v Information Commissioner [2012] UKUT 313 (Administrative Appeals Chamber (AAC)) (Evans) at [77]-[87].
The Queen and the Royal Family more generally are supported by the Royal Household. The Royal Household is not a part of the Government of the UK but is an organisation attached to the Royal Family comprised of a number of departments with responsibility for discrete portfolio matters. It includes the Private Secretary’s Office, with the Private Secretary being a senior figure in the Royal Household. The Royal Household supports the Queen in her constitutional, governmental, and political duties and is the principal channel of communication between the Queen and Her Governments, including the Commonwealth of Australia. It also supports the Royal Family otherwise in the execution of their official duties (Todd affidavit at [7]).
More specifically, the Private Secretary’s Office has responsibility for matters relating to the Queen’s role as monarch to the Commonwealth realms including Australia, and correspondence with the Queen comes through the Private Secretary’s Office (Todd affidavit at [8]). The multiple roles of the Queen as the Sovereign of the Commonwealth realms is reflected in the staffing arrangements of the Royal Household which includes an Assistant Private Secretary with responsibility for Foreign and Commonwealth Affairs but does not include a separate officer for each Commonwealth realm (Todd affidavit at [23]). Mr Todd accepted in cross-examination that the Royal Household is not an overseas government or a government at all, and that that part of the Royal Household which is arranged to assist the Queen in fulfilling her role as Queen of Australia is not an international organisation (T, 21 March 2019 at p. 63.9-17 and 63.45).
The Governor-General is the Queen’s representative in Australia: see also s 2 of the Constitution. As earlier mentioned, the Governor-General is assisted by the OSGG and other staff who together comprise the OOSGG.
Under s 64 of the Constitution, the Governor-General may appoint officers to administer departments of State, and they shall be “the Queen’s Ministers of State for the Commonwealth”. The Prime Minister of Australia is the most senior Minister, and is conventionally the leader of the Parliamentary party (or coalition of parties) that controls a majority of the House of Representatives. The office of Prime Minister is not mentioned in the Constitution, and exists through long-standing political convention. While the practice is not universal, Prime Ministers may choose to swear an oath of allegiance to faithfully serve the monarch, as did Prime Minister Tony Abbott and Prime Minister Malcolm Turnbull. The Letters emanate from these Prime Ministers and are addressed to the Queen (first Fraser affidavit at [10]).
Secondly, as the Department contends, an analogy can be drawn between the s 47C Letters and the specific exemption for documents of the OSGG by s 6A(1) of the FOI Act. Save for those of an administrative kind, s 6A(1) embodies the Parliament’s judgment that it is not in the public interest for documents associated with the exercise of the Governor‑General's substantive powers and functions to be disclosed irrespective of their content, as the High Court held in Kline. This exemption arose for consideration in Kline in the context of a request for disclosure of documents held by the OSGG relating to certain nominations for the making of an award of the Order of Australia. The rationale identified by the joint judgment in Kline for the exemption in s 6A(1) was the independence from government inherent in the Governor-General’s role. As their Honours explained:
34. Thus the processes and activities of government, which are opened to increased public scrutiny by the operation of the FOI Act, do not include those associated with the exercise of the Governor‑General’s substantive powers and functions, many (even most) of which are exercised in public. Similarly, the FOI Act does not expose to public scrutiny the discharge of the substantive powers and functions of judicial officers or holders of quasi‑judicial office to the extent that they have not been discharged in an open court or a public forum. Independence from government and the public is important in relation to the exercise of the various responsibilities of the Governor‑General, including, but not limited to, the making of decisions. Furthermore, freedom from interference or scrutiny by members of the public (or other branches of government) is an essential aspect of the making of decisions in relation to the General Division of the Order.
On the other hand, the express exclusion of documents relating to “matters of an administrative nature” in s 6A(1) was narrowly construed to connote only “documents which concern the management and administration of office resources” (Kline at [41]). The correctness of this construction was held to be illustrated by its application to the categories of documents the subject of the request in Kline, “strik[ing] a balance between the public interest in maintaining an Australian system of honours and the public interest in efficient public administration, which is supported by the scrutiny for which the FOI Act provides” (at [42]). As to the public interest in the former, the plurality had earlier explained that:
39. … The proper independent discharge of the Governor‑General's responsibility for the administration of the Order requires full and frank assistance to the Governor‑General from the Council for the Order. The Council, in turn, requires full and frank assistance from the Office of the Official Secretary. The possibilities of giving offence to failed nominees, defamation, or political controversy in the administration of the General Division of the Order are all avoided by the confidentiality of the selection process, which culminates in public announcement, in due course, of appointments and awards in the Order. The Office supports the Council and the Governor‑General in completing the selection process.
(emphasis added)
Equally, the confidentiality convention exists in part to protect the neutrality of the Crown and to ensure that discussions between the Queen and the Prime Minister (and the Prime Minister and the Governor-General as the Queen’s representative) are full and frank in furtherance of the tripartite convention: see above at [65], [71], [85]-[87] and [90]. This is a relevant consideration applying to all of the s 47C Letters given that they are in fact deliberative in nature and therefore created in furtherance of the tripartite convention. It follows that the same considerations which underlie the express exemption in s 6A(1) are equally applicable to communications both from the Prime Minister to the Queen and vice versa.
It also makes no sense, with respect, in this context to accept that it would be contrary to the public interest to release one half of the communications, namely from the Queen to the Prime Minister, while permitting the release of correspondence from the Prime Minister to the Queen. For example, if correspondence from the Australian Prime Minister to the Queen was in the public arena, it could provide a basis on which ill-informed speculation might occur about responses by the Queen to the communications or the motives of the government in writing the correspondence, which would undermine a full and frank discussion between these heads of State in the future.
Finally, for the reasons I have earlier given, release of the Letters could reasonably be expected to have a significant adverse effect on the functioning of the Royal Household, Australia’s relations with the Queen in her capacity as Queen of Australia and in her other capacities especially as head of the Commonwealth, Australia’s relations with the Royal Household, and Australia’s international relations with the Commonwealth realms. Indeed, the evidence that release under the FOI Act would impact adversely upon the flow of confidential information between Australia and these entities was compelling.
It follows that while there is a limited public interest in disclosure of the s 47C Letters, there are a number of factors weighing strongly against their release. On balance, therefore, I consider that the release of the s 47C Letters would be contrary to the public interest.
6. CONCLUSION
For the reasons given above, the decision of the OAIC dated 16 January 2018 must be set aside. The request for access under the FOI Act to the Letters from the Prime Minister of Australia to the Queen must be refused on the ground that the Letters are exempt under s 33(a)(iii) of that Act.
I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Justice M A Perry, Deputy President
Associate
Dated: 20 December 2019
Dates of Hearing:
21-22 March 2019
Counsel for the Applicant:
Mr Tom Howe QC with Mr J Davidson
Solicitor for the Applicant:
Australian Government Solicitor
Counsel for the Respondent:
Mr J Pizer QC with Mr G Hill (pro bono)
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