Secretary to the Department of Premier and Cabinet v Hulls

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No.8227 of 1998

DEPARTMENT OF PREMIER AND CABINET Applicant/Appellant
v.

ROBERT HULLS, M.P. Respondent

No.8228 of 1998

DEPARTMENT OF TREASURY AND FINANCE Applicant/Appellant
v.

ROBERT HULLS, M.P. Respondent

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JUDGES: TADGELL, PHILLIPS and BATT, JJ.A.
WHERE HELD: MELBOURNE
DATES OF HEARING: 24, 25 May, 1999
DATE OF JUDGMENT: 11 August, 1999
MEDIA NEUTRAL CITATION: [1999] VSCA 117

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Administrative law – Freedom of information – Exempt documents – Exemption by virtue of secrecy provision in other statute – Review of agency’s decision – Power of tribunal on review to grant access if “the public interest” so “requires” – Meaning and application - Freedom of Information Act 1982 ss.20, 30, 38, 50(4), 55; Casino Control Act 1991 s.151.
Appeal – Appeal to Court of Appeal from Victorian Civil and Administrative Tribunal – Leave to appeal – When granted - Victorian Civil and Administrative Tribunal Act 1998 s.148(1).

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APPEARANCES: Counsel Solicitors

For the Applicants/ Mr. D. Graham Q.C., Victorian Government Solicitor

Appellants Solicitor-General
Mr. R.R.S. Tracey Q.C. and
Ms P.M. Tate
For the Respondent

Mr. M.A. Dreyfus and Maurice Blackburn & Co.
Dr. K.L. Emerton

TADGELL, J. A.:

I have had the advantage of reading the reasons for judgment that Phillips, J.A. has prepared. I agree with them and would therefore grant the leave that is sought, allow the appeals and remit each of the two proceedings to the Victorian Civil and Administrative Tribunal.

PHILLIPS, J.A.:

In these two proceedings, which were commenced in the Administrative
Appeals Tribunal, the respondent, a senior member of the Opposition in the Lower
House of State Parliament, was seeking access to a number of documents under the
Freedom of Information Act 1982 ("the Act" or where necessary "the FOI Act"). His
initial requests, by letter dated 4 April 1996 addressed to the secretary of two
government departments, sought access to:
"All documents provided to the Department during the casino licence
bidding process by the then Victorian Casino Control Authority
(VCCA) which contain financial information regarding bids for the
casino licence extracted from submissions lodged with the then VCCA
by Applicants for the casino licence."
The two departments in question were the Department of Premier and Cabinet and
the Department of Treasury and Finance, both of them "agencies" within the
meaning of the Act. When neither of them responded within the 45 days allowed
under s.21, the respondent applied to the Administrative Appeals Tribunal for
review under s.50 of the FOI Act, on the footing that by virtue of s.53 the
departments were deemed each to have made a decision refusing to grant access to
the documents the subject of the request. The departments then identified a total of
some 30 documents, all of which were claimed to be "exempt documents" (as defined
in s.5) by virtue of one or more of the provisions of Part IV of the FOI Act. The Act
provides that in general when a request is made to an agency for access to a
document of the agency access shall be given, but not if the document is an "exempt
document": see s.20(1) and (2).
In Part IV the FOI Act specifies a variety of grounds upon which a document may be an exempt document, grounds which are compendiously described in one of the objects of the Act set out in s.3(1). I refer to that object which is
" ...to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria ... by ...
(b) creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies [Emphasis added]
In this instance one or both of the departments relied upon s.28 (cabinet documents), s.30(1) (internal working documents of government), s.34 (trade secrets and the like) and s.38 (secrecy provision in other enactment) and it was on that basis that the review proceeded. Though the respondent's applications for review were lodged in 1996, both came on for hearing only in November 1998, by which time the Administrative Appeals Tribunal had been replaced by the Victorian Civil and Administrative Tribunal, established under the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). The jurisdiction of the new tribunal depended upon the transitional provisions in s.312 and clause 9(1)(b) of the Second Schedule of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998, the Act which repealed the Administrative Appeals Tribunal Act 1984, but it was common ground before us that nothing in those transitional provisions bore upon the matters for our determination.
It cannot be gainsaid that the period between the date of the requests (April 1996) and the hearing (November 1998) is surprisingly long and by now much money must have been spent, all of which would appear to sit ill with the declared intention of the Parliament, in s.3(2) of the Act, that any discretions conferred by the Act "be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information". But there is an explanation. Coupled with the letters dated 4 April 1996 addressed to the two departments, there was a third request, in comparable terms, addressed to the Victorian Casino Control Authority. In May 1996, acting in reliance upon s.25A(5) of the Act, the Authority refused to provide access to any of the documents sought, a refusal which was confirmed by the chairman of the Authority after an internal review conducted at the request of the respondent. This led to an application by the respondent for review under s.50 and the determination of a preliminary issue concerning the effect of s.25A(5). The Administrative Appeals Tribunal gave its decision in March 1997 on the preliminary issue and that led to an appeal by the Authority to the Court of Appeal. The appeal was heard on 18 March 1998 and dismissed a few weeks later, on 3 April: Victorian Casino and Gaming Authority v. Hulls [1998] 4 V.R. 718. Although on this occasion the respondent sought to place some reliance upon what he characterised as the considerable delay attending on his requests of April 1996, it was not, I think, delay which should operate against the departments as if they were responsible for it. The effect of s.25A(5) raised questions of statutory construction which the Authority was entitled to have determined authoritatively.
The respondent’s applications for review in respect of the documents held by the departments were heard by the tribunal consisting of a Vice-President, his Honour Judge Wood. In detailed and comprehensive reasons for decision, handed down on 1 December 1998, his Honour considered in turn each of the documents by reference to the various grounds for exemption relied upon by the departments and upheld most of the departments' claims. None the less, being of opinion that the public interest required it, he determined that access to the documents be granted, save those exempt under s.28. The departments now seek to appeal against that determination to the extent that access to documents was granted. A stay of the determination is meanwhile in place.
Under s.148(1)(a) of the VCAT Act, when the determination is of the tribunal consisting of a President or a Vice-President an appeal lies to the Court of Appeal, though only with the leave of the Court of Appeal. The applications for leave to appeal came before two members of the Court on 26 February last. It was then ordered in each case that the application for leave should stand over, to be heard and determined by the same Court as would hear the appeal, if leave were granted. It is pursuant to that order that we now have before us both the applications for leave to appeal and, if leave is granted, the appeals themselves. The parties addressed us first on the question of leave and then on the merits and in what follows I shall deal with the submissions in that order.
Before proceeding however, I mention the title to the proceedings. Although the departments were in each case named as the applicants and would-be appellants, it was pointed out by the Court in the course of argument that that seemed not to be correct: Santamaria v. Department of Human Services [1998] 2 V.R. 296 at 297-8. Each request for access was properly addressed to the secretary to the relevant department and, although the department is the appropriate "agency" under the Act, it is surely the secretary who should be designated as applicant and, if leave is granted, the appellant. As neither party had any objection to this, an amendment should be ordered to the summonses seeking leave and the notices of appeal, when filed, should not copy the proposed notices that were filed pursuant to a direction given on 26 February, but should designate the relevant secretary as appellant.
Leave to appeal under s.148
Because these applications have come before a Bench of three we were invited by the parties to take the opportunity of providing some guidance on when, in the ordinary course, the Court would be disposed to grant leave under s.148 of the VCAT Act. Under s.148 leave is always necessary, whether the appeal lies to the Trial Division or the Court of Appeal and whether the order under challenge is final or interlocutory. The orders under challenge here are final orders and so what was said in Niemann v. Electronic Industries Ltd. [1978] V.R. 431 at 441-2, and Australian Dairy Corporation v. Murray Goulburn Co-operative Co. Ltd. [1990] V.R. 355 can have no direct application; for those two cases were concerned only with leave to appeal from an interlocutory order which, as is common enough, was also discretionary. See X v. D.P.P. [1995] 2 V.R. 622 at 623, 626 and Coles Myer v. Bowman [1996] 1 V.R. 457 at 459. In passing I simply observe that, although in argument what was said in Niemann was referred to as laying down "principles" or "rules", that is not so. What was said should be taken to do no more than provide guidelines: cf. Norbis v. Norbis (1986) 161 C.L.R. 513. The discretion to grant leave, which is conferred by the statute in untrammelled terms, cannot be fettered, and should not be fettered, by judicial decision. From time to time a case will arise in which any preconceived guidelines will be found not wholly sufficient. In the end, whether leave is granted or not must always depend upon the justice of the case, as it appears to the court from whom leave is sought.
As the leave is sought under s.148, that section must be the starting point for any consideration of what has to shown by an applicant seeking leave. Because an appeal under s.148 lies only on a question of law it follows that if leave is to be

granted the applicant must at least identify a question of law (as distinct from a
question of fact) and a question of law which is important to the appeal's succeeding
or failing. Thus, if the would-be appellant seeks to have the order below set aside
and reversed, the question of law must bear upon the granting of that relief. The
question of law must be such that, if there is shown to be error in respect of the
question, the appellant's claim to relief will thereby be advanced.

10

On the other hand, on an application for leave to appeal it cannot be expected
that error below be established: that is for the appeal itself. Something less must be
sufficient on the application for leave to appeal and ordinarily the applicant will be
required to show that there is a real or significant argument to be put that error
exists. In other contexts, this has sometimes been called "a prima facie case", or "an
arguable case", but these are no more than attempts to describe the degree to which
an applicant must satisfy the court from which leave is sought that there is a real or
significant argument, in favour of the applicant, on the question of law which is
identified. (Contrast in a different context Beecham Group Ltd. v. Bristol Laboratories
Pty. Ltd. (1968) 118 C.L.R. 618 at 620, per Kitto. J.) It is not possible to lay down in
advance any standard of satisfaction, for much may depend upon the importance of
the question of law to the remedy to be sought. What is peripheral may be thought
less persuasive, in relation to leave to appeal, than an issue which is central.

Moreover, though never a necessary factor in this Court, sometimes the public or general importance of the question of law which has been identified may be a consideration on the application for leave. Thus, if the question of law, affecting the determination below, is one that not infrequently arises in a type of proceeding which is quite common, there may be compelling reason for a grant of leave so that the point may be exposed on appeal and corrected, if error there be, before error becomes entrenched. In such a case, it might be sufficient for the applicant to identify the question of law and its general public importance. That is not to suggest that the applicant could succeed if the point were not open to debate but, given its public importance, there might be as much merit in the court's hearing full argument in order to confirm that there is no error as in its granting leave to appeal in order to correct error, particularly where continuing uncertainty could itself cause unnecessary expense and delay.
All this does no more than demonstrate why it is not possible to lay down, in advance, any useful guideline on the degree to which the court from which leave is sought must be satisfied that the question of law which has been identified is arguable in the would-be appellant's favour. For myself, I am attracted by the proposition articulated in Niemann, that the decision below should be "attended by sufficient doubt to justify the grant of leave to appeal". That seems to me to leave open what is "sufficient", while at the same time confirming that there must be doubt "sufficient ... to justify the grant of leave". Beyond that it is difficult to be more precise. In argument, we were much pressed with Rule 4.09 of Chapter II as providing a test by which, in the Trial Division, leave to appeal was granted or withheld. I reject that submission. Rule 4.09 does not provide a test by which leave shall be granted; it simply grants a power to the Master (and on appeal the judge) to refuse leave in certain circumstances. It says nothing about the criteria by which leave shall be granted.
Once a question of law has been identified which bears directly upon the
relief which will be sought on the appeal, and once it has been shown that there is
sufficient doubt attending that question to justify the grant of leave to appeal, it may
be supposed that leave will ordinarily go if the order below is a final order. That
must always be subject to its being just to grant leave, a consideration which will in
some cases be determinative. It directs attention to the position of the parties – and
perhaps third parties if directly affected by the order below or the proposed appeal –
and perhaps the simplest example arises when the order below is plainly
interlocutory.

14

Where the order sought to be appealed is interlocutory (or "interim" in the
terminology of the VCAT Act), there may be particular reasons, based in justice to
both parties, for not granting leave to appeal. There are strong considerations
against the fragmentation of any proceeding, whether it be criminal or civil. Where a
court is invited to grant leave to appeal from an order which is simply interlocutory,
the litigation will be interrupted by the appeal, if leave is granted. Usually it is better
if litigation is left to run its course, the parties being remitted to such rights of appeal
as they have at the end of the day. Not only does that ensure that the litigation is not
unnecessarily interrupted and completion not delayed without warrant; it also
ensures that any interlocutory dispute will be seen and adjudged in its final context.
Indeed, in the context of the final judgment the interlocutory dispute may be seen as
having, or having had, little or no significance. Hence, in Niemann it was said that an
applicant for leave to appeal from an interlocutory order must show, not only
sufficient doubt about the correctness of the order, but also that there would be
substantial injustice in leaving that order unreversed.

Where the order which is under challenge is final, the injustice of allowing the determination below to stand uncorrected, if indeed it is attended by error, will be more readily discerned. It will be apparent, at least in many cases, that to leave a final order standing which would be reversed if error of law were established is unjust to the party adversely affected by the order: the prejudice lies in that party’s being bound to comply with an order that ought not to have been made as a matter of law. Yet that may not always be so, as the respondent sought to persuade us here. In this instance, it was said, there was no prejudice to these two departments of government in being compelled to make certain documents public - or at all events no prejudice in that regard had been established. I deal with the merits of the argument later: I mention it here simply to demonstrate that, even in the case of a final order, the court from which leave is sought might sometimes require persuasion that there would be prejudice if the order below were allowed to stand, though tainted by error. What was said in Niemann might then still be a useful guideline under s.148, whether the order below be final or interlocutory - provided it is recognised that the injustice attending an order's continuing to stand is probably more readily discernible if it is final rather than interlocutory. That is consistent with previous practice, as I apprehend it, where leave has been more readily granted from an order which, though interlocutory, is "final in effect".
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset, it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines. When leave is sought to appeal under s.148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
In the course of the argument we were pressed with the consideration that, as leave to appeal had to be sought under s.148 of the VCAT Act either from the Trial Division or from the Court of Appeal according to the constitution of the tribunal, the guidelines affecting the grant of leave to appeal should be the same in both cases. There is much, I think, to commend that view, especially now that it has been held that the decision to grant or refuse leave is conclusive and not itself subject to appeal: Rabel v. Eastern Energy Ltd. [1999] VSCA 103 (Court of Appeal, 2 July 1999). Both parties were disposed to contend that we should adopt, in effect, the provision made by Rule 4.09, to which I have already referred. But that contention proceeded upon the misconception that Rule 4.09 in some way provided criteria for the granting of leave to appeal. I emphasise that that is not so. That apart, however, there is merit, I think, in there being similar guidelines in both the Court of Appeal and the Trial Division. Beyond that, it is unnecessary to go on these applications.
Should leave to appeal be granted?

In this case, it seems to me clear that leave to appeal should be granted to the two departments, or more strictly speaking to their secretaries. The main issues raised on their behalf are the construction of s.50 of the FOI Act and the relationship between that section and s.151 of the Casino Control Act 1991. It cannot be said that the proper construction of s.50(4) is not open to argument; plainly it is. Section 50(4) has its difficulties and there are difficulties, too, in being clear about the relationship between s.50(4) and s.151. Moreover, these questions of construction, which are questions of law, are of considerable public importance, given the frequency nowadays with which the FOI Act is invoked and the significance of s.50(4) to the general scheme of exemptions created under Part IV. The questions of law identified by the departments bear directly upon the relief which is to be sought on appeal, which is nothing short of the reversal of the order made below that access be given to the documents in issue.

19

Two further considerations, however, were relied upon by the respondent.
First, it was said that there was no prejudice to the departments if the order under
appeal was allowed to stand, whatever the proper resolution of the questions of law
which were identified. As already foreshadowed, this submission proceeded upon
the footing that there could be no prejudice to government departments in their
being ordered to make available to the public documents which were held by them;
prima facie, accountability required such disclosure. To the extent that the
departments relied upon the prejudice that might follow to the tendering process
generally, if information supplied in confidence by an applicant for a licence was
later made known to the public at large, the respondent pointed to the evidence
given before the tribunal which, it was said, was to the contrary. Be that as it may,
the existence or not of prejudice should the order under challenge be allowed to
stand is only one consideration: another is the public importance of the questions of
law which are raised for determination, and in this case I think that the more
significant on the applications for leave to appeal.

The other matter relied upon by the respondent was delay, and I have already dealt with that. I am not satisfied that in this case the delay was such that leave to appeal should be refused on that account. Three years have passed since the initial requests for information, but the departments still seek to resist. Notwithstanding the passage of time, I think that in all the circumstances they are entitled to their day on appeal, the more so as the hearing of the appeals, in conjunction with the applications for leave to appeal, can occasion no further delay.
Section 50(4)
The first of the two issues debated before us was the proper construction of s.50(4) of the FOI Act. That subsection, falling within s.50 which governs generally applications for review, reads:-

"(4) On the hearing of an application for review the Tribunal shall
have, in addition to any other power, the same powers as an
agency or a Minister in respect of a request, including power to
decide that access should be granted to an exempt document
(not being a document referred to in section 28, section 31(3), or
in section 33) where the Tribunal is of opinion that the public
interest requires that access to the document should be granted
under this Act."

This does two things. First, and importantly, it confers upon the tribunal on review "the same powers as an agency or a Minister in respect of a request". That must mean those powers that may be exercised by the agency (I leave aside the Minister) in the first place, to grant access to a document as requested (a step which is encouraged by s.16 of the Act) or to refuse access according to the statute, that is, on the ground that a document is an exempt document: see s.20. Indeed s.16 encourages the granting of access to a document even though it is exempt under Part IV, but that need not be explored now: see generally as to s.16, Victorian Public Service Board v. Wright (1986) 160 C.L.R. 145 at 153-4. What matters for present purposes from the first portion of s.50(4) is this: that on review under s.50 it appears that the first step for the tribunal is to determine whether the document is an exempt document under one or other of the provisions of Part IV.
Section 50(4) then proceeds to confer power on the tribunal to grant access to an exempt document, should the tribunal be of a certain opinion. There are express exceptions to this: documents that are exempt under s.28, 31(3) or 33, but none of
those is presently relevant and I make no further reference to them as exceptions. The tribunal did find some documents exempt under s.28 (which protects Cabinet documents) but no challenge is made to that aspect of the tribunal's determination.
The power of the tribunal to grant access in certain circumstances to a
document which is otherwise exempt is a second step for the tribunal on review
under s.50, a step which can be taken only if the tribunal is first of opinion that the
document is exempt under Part IV; if it is not, then access should be granted
anyway. It must be acknowledged that, in conferring this further power on the
tribunal, the wording of the sub-section is infelicitous; as Brooking, J. pointed out in
Melbourne University v. Robinson [1993] 2 V.R. 177 at 182-3, the expression "including
power to decide" must be taken to mean that the tribunal's powers shall include that
power, and it is not to the point that the agency did not itself have that power in the
first place (if indeed such is the case). But so much was common ground before us.
The power which is thereby conferred on the tribunal is to grant access to an exempt
document "where the Tribunal is of opinion that the public interest requires that
access to the document should be granted under this Act". This is commonly
referred to as the "public interest override" and, as will appear, that seems to me not
inappropriate.
The factors by which a document may be an "exempt document" vary
considerably. As already noted, they are referred to in s.3(1) as "necessary for the
protection of" either "essential public interests" or "the private and business affairs of"
the persons in respect of whom information is gathered by the agencies, and that
distinction can be seen in the various provisions of Part IV. Thus, s.28 protects
Cabinet documents, s.29 documents the disclosure of which would prejudice inter-
governmental relations, s.30 documents relating to ministerial communications and
the like, and s.31 documents the disclosure of which might prejudice the due
administration of the law. To my mind all these stem directly from considerations of
the public interest. Indeed all four sections save only s.28 make some reference
expressly to "the public interest": see s.29, s.30(1)(b) and s.31(2). Section 32 protects
documents the subject of legal professional privilege, a privilege which, though
belonging to the client, was regarded in D.P.P. v. Smith [1991] 1 V.R. 63 as itself
stemming from the public interest. On the other hand, s.33 protects documents
affecting personal privacy, s.34 documents relating to trade secrets and the like, and
s.35 documents containing material obtained by an agency in confidence. These
three sections appear to bear more directly upon "private and business affairs of
persons in respect of whom information is collected and held by agencies". Yet even
in these sections there is one express reference to the public interest (in s.34(2)(d))
and of course it can be said that in a general sense every ground of exemption must
have been considered by the Parliament to be founded in the public interest, or else
the section would not have been enacted.
The foregoing list of sections in Part IV of the Act is not exhaustive, but it is sufficient to demonstrate how varied are the considerations which may lead to the conclusion that a document is an exempt document, only some of them drawing

expressly upon "the public interest". It follows, I think, that although sometimes
s.50(4) is described as requiring the tribunal to balance competing public interests,
that may not always be so; rather, as it seems to me, in each case the tribunal must
determine whether considerations of "the public interest" are so strong as to
outweigh, or override, those factors by which the documents are exempt documents,
whether those factors derive simply from the public interest or more immediately
from "the private and business affairs" of those persons from whom information was
gathered in the first place. In the present cases the exemptions relied upon derive at
least in part from the latter rather than the former. Either way the term "public
interest override" is not inappropriate.

Because "the public interest" is referred to in many of the sections under
which exemption is first granted and is also referred to in the "public interest
override" found in s.50(4), it must follow that what is "the public interest" may wear
different aspects. That seems apparent particularly from s.36, which in four cases
expressly renders a document exempt if disclosure "would be contrary to the public
interest" for a specified reason. Two of the four cases are concerned with the
"premature disclosure" of the document; and while the other two cases do not refer
expressly to premature disclosure, the disclosure must be such as might prejudice
future conduct or events. Now, if such considerations of public interest can justify
granting a document the status of an exempt document under s.36, if and when the
tribunal comes to consider "the public interest override" in s.50(4) it is surely other
aspects of the public interest which might justify the granting of access, or else the
exercise directed by s.50(4) would be futile.

28

The problem arises more acutely still under s.30(1), by which documents are
exempt if disclosure bears upon the internal workings of an agency "and (b) would
be contrary to the public interest". There is here no definition attempted of "the
public interest" and on the face of it the apparent conflict with s.50(4) is more striking
than it is under s.36, though, as in the case of s.36, the draftsman must have had in
mind that "the public interest" may wear different aspects. That is as far as the
problem arising under s.30 need be explored on this occasion; in particular there is
no need to explore the powers of the tribunal on review in such a case. Prima facie
they are as laid down by s.50(4), but how would that work? Can it be expected that
the tribunal might first uphold the exemption under s.30(1) (which depends upon its
confirming that disclosure "would be contrary to the public interest") and then
proceed to consider the public interest override, to determine whether it is of opinion
that "the public interest requires that access to the document should be granted"?
The two tasks seem to conflict and it was submitted that on that account s.30(1)
should be taken as excepted from the public interest override, like ss.28, 31(3) and 33.
Whether that can be achieved by construction is problematic, but perhaps the
question will never arise; for where the tribunal considers the public interest so
strong as to attract the public interest override, the tribunal would presumably not
uphold the claim to exemption under s.30(1) in the first place (as indeed the tribunal
determined in this matter). But this possibility of true conflict between the two
provisions need not be resolved on these appeals and I say no more about it. It is
however the best evidence that the public interest override is, in the context of the
earlier provisions of the Act, a most extraordinary provision; it is, I think, unique to
the Victorian statute and surely makes what is already obscure even more difficult to
construe and apply with any confidence. See and compare Accident Compensation
Commission v. Croom [1991] 2 V.R. 322 at 323 per Young, C.J.

That "the public interest" may wear different aspects was the view quite
clearly taken by the Appeal Division in D.P.P. v. Smith. There, the document was
exempt under s.32 (legal professional privilege) and the tribunal ordered access
under s.50(4) by reason of the public interest override. The Court approached the
matter on the basis that both sections involved matters of public interest - the public
interest of ensuring that access to legal advisers was uninhibited (relevant to s.32)
and the public interest, in that particular case, of seeing that justice had been duly
administered (under s.50(4)): [1991] 1 V.R. at 72-3. The tribunal had been of opinion
that the latter firmly outweighed the former, and the appeal to the Court (on a
question of law only) was dismissed. In its reasons for judgment the Court spoke of
weighing competing public interests: for example [1991] 1 V.R. at 77. See also Re
David Syme & Co. v. Victorian Casino and Gaming Authority (1995) 8 V.A.R. 212 at 232,
Re O'Sullivan and Department of Health & Community Services (1995) 8 V.A.R. 449 at
457-8.
Nor do I read anything said in Sinclair v. Maryborough Mining Warden (1975) 132 C.L.R. 473 as pointing the other way. There, the mining warden was directed by the regulations to consider whether to grant a licence would "prejudicially affect the public interest or right". The warden drew a contrast between "a section of the public" and "the interest of the public as whole", but the Court ruled that this was error; the one did not exclude the other: 132 C.L.R .at 483 per Gibbs, J. Stephen J. described the warden's task as involving "the weighing of benefits and detriments" and spoke of "this process of the weighing against each other conflicting merits and demerits": 132 C.L.R. at 485. Jacobs, J. said that the public interest "is an indivisible concept", but this must be read in context. More fully his Honour said at 487:-
"The public interest is an indivisible concept. The interest of a section
of the public is a public interest but the smallness of the section may
affect the quantity or weight of the public interest so that it is
outweighed by the public interest in having the mining operation
proceed. It does not however affect the quality of that interest. The
warden looked for what he described as the public interest as a whole
and he did so in contradistinction to the interest of a section of the
public. Moreover, he limited the area of public interest to the section
of the public who propounded the views expressed by the objector.
This was not permissible. The views may have been propounded by a
section of the public but the matters raised went to the question of the
interest of the public as a whole."
Thus his Honour meant only that under the regulations there at issue the concept of the public interest was not to be broken up in the fashion attempted by the mining warden. Under the FOI Act the position is made altogether different by the statute itself and once it is accepted, as I think it must be, that under that statute the public interest may indeed wear many different aspects, the submission, made on behalf of the departments, that in a case in which the exempt status of a document derives from s.30(1) or s.36 there is no room for s.50(4) to operate, must be rejected.
That brings me at last to the particular point of construction that figured large in the submissions of counsel: the meaning in s.50(4) of the word "requires" in the expression "is of opinion that the public interest requires that access to the document should be granted". First it must be noted that s.50(4) does not say, as it might, "where the tribunal is of opinion that it is in the public interest that access to the document be granted". Therefore more than that must be found before the tribunal is entitled under s.50(4) to grant access to a document which is otherwise an exempt document - and it will be apparent from what I have been saying about competing considerations of "the public interest" why that must be so. Some of the sections upon which exemption depends themselves refer to "the public interest" and yet s.50(4) is framed to permit access if "the public interest" is thought by the tribunal to outweigh the factors by reference to which the status of an exempt document has first been acquired. How strong the prevailing considerations of "the public interest" must be in any given case will depend, as I have said, upon the nature and strength of the factors by reference to which the status of exempt document has been accorded, but prevail they must before the tribunal is empowered to grant access to a document which otherwise is exempt under Part IV. The concept of tussle and victory itself suggests that "requires" means "demands" or "necessitates", and that is what I think it means. How else could s.50(4) work sensibly?
For his part the respondent contended that the word requires" in s.50(4) meant no more than "needs": it did not mean "demands", as the departments contended. This submission was based upon a distinction which was canvassed in four Victorian cases to which counsel took us. In the first, Kiely v. Loose [1948] V.L.R. 181 at 183, Fullagar, J. described the different meanings that attach to the word "requires" in ordinary everyday use. He said:-
"The word 'required' is an ambiguous word. In modern usage it is
capable, when used as a transitive verb with a direct object, of bearing
two quite distinct meanings. It may be used in the sense of 'demand'
or 'claim' or it may be used in the sense of 'need'. It may be that, even
when used in the former sense, it connotes a degree of genuine reason
for the demand or claim, an absence of arbitrariness. But the two
senses are as distinct as they are familiar."
Fullagar, J. returned to this distinction in De Marco v. Ellis [1949] V.L.R. 97 at 99, and Sholl, J. sought to elaborate on it in Brown v. Lusk [1956] V.L.R. 285 at 290 and Henry v. Humphris [1956] V.L.R. 371 at 380-1. The distinction was a valid one, the
submission went, and in s.50(4) “requires” had the meaning of "needs", not
"demands".
In a number of tribunal decisions the word "requires” in s.50(4) has been
treated as conveying a sense of the imperative: Re Gill and Department of Industry,
Technology and Resources (1985) 1 V.A.R. 97 at 103, Re Thomas and Royal Women’s
Hospital (1988) 2 V.A.R. 618 at 641 and David Syme at 232. To construe the word in
that way, said the respondent, was contrary to the views of the High Court in Wright
and of members of the Full Court in Ryder v. Booth [1985] V.R. 869 at 877 and Sobh v.
Police Force of Victoria [1994] 1 V.R. 41 at 56, 60-1, where it was emphasised that the
FOI Act should not be construed narrowly, and was to be construed to further, not
hinder, access to information. No doubt that is so, and no doubt that will inform the
exercise of the various discretions conferred by the Act. But subject to those
discretions it is the Act itself which provides, and in some detail, the extent to which
access is to be provided or withheld, and that includes Part IV prescribing what
documents are to be exempt from disclosure, at least in the first instance. Where a
claimed exemption is otherwise upheld on review, access may be granted by the
tribunal only if it is of the opinion set out in s.50(4) (the public interest override).
Our task is to construe the word "requires" in that particular provision, and I doubt
that generalisations about how the Act should be approached will be helpful in that
regard. Of first importance must be the legislative context itself and with that to
guide I think that the word is used in the sense of "demands" or "necessitates". (The
same can be said of s.5(1), in the introduction to the definitions.)

Regularly, of course, statutes do use the word "requires" or a variant
deliberately to convey a sense of the imperative; when a person is described as
"required" to do something or other, that surely means that he or she is obliged to do
it. In this statute examples can be found in ss.7(5), 9 and 27(2)(a), cf. ss.11(3) and
12(1). Moreover, in the end I do not think that the respondent's case is advanced
much, if at all, by the apparent difference between "needs" and "demands". In the
four Victorian cases to which we were referred the distinction was drawn in the
context of the landlord and tenant regulations of the day, under which notice to quit
might be given if the landlord reasonably required the premises for occupation by
him- or herself. Where premises are "required" for a given purpose, that may mean
that the premises are needed, or without need are simply demanded, and it was
important to the tenant to establish whether need on the part of the landlord had to
play some part before notice to quit could lawfully be given, or whether arbitrary
demand was enough. Need of premises for a given purpose is easy to understand,
as is demand of the premises for that purpose though there be no need. But, as the
four cases demonstrate, when the word "require" is coupled with "reasonably" the
arbitrary demand is excluded anyway: some element of reason or legitimacy must
support any attempt to "require". That is all that those four cases relevantly decided.
Here the context is altogether different. The opinion relevant under s.50(4) is
that "the public interest requires that access ... be given". Nothing is being "required" for application to some given purpose, as it was in Kiely. What is more significant for present purposes is that in the construction of s.50(4) the respondent opts for the
alternative of "needs" over "demands"; yet I should have thought that in Kiely the need referred to was founded in necessity. What does it matter, then, whether in s.50(4) the word "requires" means "needs", in the sense of calls for as a matter of
necessity, or "demands", which after all has a similar connotation of necessitates
(though perhaps it is a little less emphatic in that regard)? The argument between
the two seems to me a sterile one, in much the same way that the difference between
"needs" and "demands" would seem of no significance in construing the opening
words of s.5(1). Given that the test must be whether at the end of the day the
tribunal is of opinion that the considerations of the public interest (to which no
doubt it is referred by the applicant for access) are so strong as to override the factors
which in the first place are such as to accord the document exempt status, the
meaning of "requires" is clear enough. In D.P.P. v. Smith, the tribunal found that the
public interest "necessitated" disclosure, and the decision was confirmed on appeal.
To my mind that that test was wholly appropriate under s.50(4).
Casino Control Act s.151

36

It is convenient at this point to canvass the second of the two main issues
raised for determination on these appeals. That focussed on s.151 of the Casino
Control Act 1991 which, it was said by the departments, provided for secrecy in
relation to the information contained within the documents now in question. The
departments submitted that, however the Court might ultimately construe the public
interest override in s.50(4), the tribunal did not have power to grant access under it
in this instance because of s.151, which must be taken to prevail over s.50(4).

Section 151 commences:-

"(1) Subject to sub-section (3), a person must not directly or
indirectly, except in the performance of duties or exercise of
powers under this Act, make a record of, or divulge to any
person, any information with respect to the affairs of another
person or with respect to the establishment or development of a
casino acquired by the first-mentioned person in the
performance of those duties or exercise of those powers.
Penalty: 50 penalty units."

Sub-section (3) is as follows:-

"(3) A person may -

(a) divulge specified information to such persons as the Minister directs if the Minister certifies that it is necessary in the public interest that the information should be so divulged; or
(b) divulge information to a prescribed authority or prescribed person; or
(c) divulge information to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it."

Sub-section (4) then obliges an authority or person to whom information is divulged under sub-s.(3) to observe the same obligations of secrecy as are found in sub-s.(1). Sub-section (5) makes further provision relating to the disclosure of information "to a court" and in subs.(6) “court” is defined to include a tribunal. Sub-section (5) turns on either a certificate from the Minister "that it is necessary in the public interest" for disclosure to be made or alternatively authority to disclose given by the person to whom the information relates. Some argument was addressed on sub-s.(5) but it seems to me unnecessary to consider it. The Minister did certify for disclosure to the tribunal only, presumably for the purpose of facilitating the review being conducted, but that seems to me not to matter. The question for us is disclosure, not to the tribunal, but to the public at large.

As I have said, the departments relied upon s.151 to protect them from any
order under s.50(4) by reference to the "public interest override". But the argument
cannot be considered independently of s.38 of the FOI Act; for that reads:-

"38 A document is an exempt document if there is in force an
enactment applying specifically to information of a kind
contained in the document and prohibiting persons referred to
in the enactment from disclosing information of that kind,
whether the prohibition is absolute or is subject to exceptions or
qualifications."

As the tribunal pointed out, the first task under s.38 is to identify the nature of the material in the document and, having done so, consider whether the enactment relied upon is one "applying specifically to information of [that] kind". The detailed terms in which s.151 is expressed no doubt flow from the comments of Bowen, C.J. and Fisher, J. in News Corporation Ltd. v. National Companies and Securities Commission (1984) 1 F.C.R. 64 at 68, 70; 52 A.L.R. 277 at 281, 283, a decision on s.38 of the federal Act which apparently provided the model for our s.38. That decision was followed in Department of Premier and Cabinet v. Birrell (No.2) [1990] V.R. 51 (F.C.) at 58-9 per Gobbo, J. See also Commissioner of Taxation v. Swiss Aluminium Australia Ltd. (1986) 10 F.C.R 321 and David Syme at 222-3. The tribunal carefully examined each of the documents to which access was being sought and the evidence given in relation thereto, and concluded in most cases that the documents did contain information of a kind to which s.151 specifically applied. We are concerned only with those documents that were found to contain such information, and that finding was not challenged on these appeals, the question for us being whether s.151 was otherwise "an enactment" such as s.38 envisaged. In this regard we were referred to a number of other examples of secrecy provisions which at one time or another have been regarded by the Administrative Appeals Tribunal as falling within s.38, and I mention some of them: Children and Young Persons Act 1989, ss.26 and 64(4), Corrections Act 1986 s.30, Equal Opportunity Act 1984, s.15(2), Hospital and Charities Act 1958 s.92A and the Legal Aid Act 1978 s.43. (These are taken from the list in Kyrou, Administrative Law in Victoria, p.626/57.) When these are examined, it is not easy to see how any of them can be distinguished from the general thrust of s.151.
It is true that s.151 was enacted after s.38, but that is no ground per se for
concluding that s.151 is not an enactment falling within the ambit of s.38: contrast
Goodwin v. Phillips (1908) 7 C.L.R. 1 at 7. There is nothing in the wording of s.38 to
indicate that it applies only to enactments already in force: indeed, I should have
thought all indications were to the contrary. The plain intendment of s.38 is to
exempt documents from time to time according to the situation then existing; s.38
was intended to have ambulatory operation. That leaves no room for any common
law presumption that s.38 was referring only to legislation already in force: contrast
Commissioner for Government Transport (N.S.W.) v. Deakin (1957) 97 C.L.R. 535 at 546.
Indeed, there was really no dispute about this; for while the appellants contended
that s.151 saved the documents from disclosure under s.50(4), they did not challenge
the tribunal's decision that the documents were exempt documents by virtue of, inter
alia, s.38.
Once it is understood that s.38 applies to the documents here in question, on the face of it s.50(4) must also apply. What the FOI Act gives, it may take away. Section 38 confers the status of "exempt document" and s.50(4) imposes a qualification on that status, by means of "the public interest override". The departments nonetheless contended that, however broad the qualification in s.50(4) on what is otherwise exempt from disclosure, that sub-section could override only s.38: it could not override s.151 - and this was put on several bases.

42

First, it was submitted that s.50(4) could not override s.151 because the latter
was found in a separate statute. It seems to me that this argument must be rejected
once it is understood that s.38 applies. If s.38 operates with respect to s.151, that
means that documents containing information within the description found in s.151
are none the less exempt documents by reason of s.38, and being exempt by reason
of s.38 the tribunal is given the powers on review which are found in s.50(4),
including the public interest override. It is then nothing to the point that s.151 is
found in a separate statute; that is the very premise upon which s.38 operates.

Secondly, it was said that Parliament had very plainly and specifically
expressed its intention in s.151 with respect to the disclosure of financial information
coming to the Casino Control Authority (or its predecessor) from an applicant for a
casino licence; that s.151 was exhaustive in that regard, setting up its own system of
ministerial certificates where warranted by the public interest; and that that left no
room for s.50(4). But to my mind the system established under s.151 can be given
sufficient rein without thereby excluding s.50(4); it can govern at the administrative
level (before the tribunal is reached) in much the same way as do the exemptions in
Part IV of the FOI Act. Further, the argument that points to the exclusivity of s.151
ignores, if I may say so, the presence of s.38 in the FOI Act. It is the presence of s.38
which in the end serves to attract the operation of s.50(4) and on that account I
would not conclude that s.50(4) is denied all operation where s.151 operates.
The departments argued that the two sections were too inconsistent to allow any room for the operation of the public interest override in s.50(4) where s.151 applied. The respondent put the opposite argument; that s.50(4) could not be denied operation by s.151 because there was no inconsistency between the two provisions. On examination, it was said, each section could be seen as dealing with different things: s.50(4) with access to documents otherwise exempt under Part IV of the FOI Act and s.151 with the confidentiality attaching to information coming to the Authority in the performance of its functions under the Casino Control Act. Accordingly, there was no inconsistency and therefore no difficulty in allowing s.50(4) operation uninhibited by s.151. For myself, I do not understand inconsistency to depend necessarily upon the nature of the topics covered by the legislation at issue. That might be a consideration when interpreting one section or the other in order to determine if there truly is some inconsistency between them; it may be particularly relevant if the question be asked whether either statute displays an intention to "cover the field". Here, s.151 deals with information coming to the Authority and where that information reaches it in documents, there is room still for the provisions of the FOI Act. In argument respondent's counsel felt constrained to concede that there was some overlap in the operation of the two statutes. Plainly there is and to that extent there may be inconsistency. But the possibility of inconsistency is removed once it is accepted (as I think it must be) that the secrecy enjoined by s.151 is anticipated by s.38 and that documents containing information specifically embraced by s.151 are themselves brought by s.38 within the umbrella of the FOI Act, including the provisions for review in s.50.
It must be said that the departments' argument that, on its proper
construction, s.151 excludes the operation of s.50(4) is particularly difficult to
maintain if regard may be had to the Parliamentary history. When the Casino
Control Bill was under consideration by the Parliament in 1991, the clause which
became s.151 was in much the same form as it is now. (In 1993, the words "or with
respect to the establishment or development of a casino" were inserted by the same
Act which added Part 9A, dealing with the Melbourne Casino: Casino Control
(Amendment) Act 1993, Act No.34/1993). Clause 150 of the 1991 Bill was as follows:-
"The Authority is not a prescribed authority for the purposes of the
Freedom of Information Act 1982."
During his Second Reading speech the then Attorney General referred to the reason for this provision. He said (Hansard, Legislative Assembly 24 April 1991, vol.402 p.1694):-
"In view of the sensitive nature of information obtained from local,
interstate and overseas law enforcement agencies which may be put
before the authority, the Bill contains various provisions to ensure
confidentiality. These include a prohibition on divulging information
acquired in the course of performing duties under the Act and
exemption from the Freedom of Information Act."
In the course of debate on the Bill, it was the present Attorney General, then a front bench member of the Opposition, who foreshadowed and then moved an amendment to remove clause 150 altogether (Hansard, Legislative Assembly 28 May 1991, vol.403 pp.2545, 2839). The same amendment was pursued by the Opposition in the Legislative Council, where Mr. J.V.C Guest said (Hansard, 6 June 1991, vol. 403 p.2315):-
"I foreshadow one other amendment not yet referred to that we
propose to introduce and that is that the exemption from freedom of
information legislation should be deleted. We believe there is
adequate protection in the freedom of information legislation for
commercially confidential documents and other documents which are
truly so sensitive that, in the public interest, they should not be
disclosed.
The general principle should be in relation to an area which generates so much suspicion, and quite rightly, that freedom of information should apply so that those who continue to be concerned can, so far as possible, satisfy themselves that all is above board."
The Government accepted the amendment and accordingly clause 150 was removed.
Indeed, in the following August, Mrs. Wade was to reiterate the Opposition's stand
on the Casino Control Bill when moving a like amendment – again an amendment
which was accepted by the then Government - to remove from the Gaming Machine
Control Bill clause 139 which, like the earlier clause 150, was intended to exempt
information gained under the later Act from the freedom of information legislation:
Hansard, Legislative Assembly 28 August 1991, vol.404 p.274.
It seems somewhat ironic that, with a change of government having occurred in the meantime, two senior departments of government should now be contending that clause 150 should in effect be restored by the Court's construing the provisions that remain as if clause 150 were still there. But as a matter of construction that step cannot be taken in the absence of anything pointing in that direction, either in s.151 or otherwise in the Casino Control Act as it stands. To my mind the Parliamentary

history of the Bill simply confirms what is otherwise apparent as to Parliament's
intention in that regard: compare Catlow v. Accident Compensation Commission (1989)
167 C.L.R. 543 at 563 per McHugh, J., R. v. Frugtniet [1999] VSCA 58 para.[23]. In
David Syme the tribunal concluded that s.38 and in turn s.50(4) of the FOI Act applied
in relation to documents containing information of the kind described in s.151 and I
think that that conclusion is the correct one.

If, then, s.50(4) is not excluded altogether by s.151, the departments rely upon an alternative submission that the tribunal misconstrued the relationship between the two provisions by failing to recognise that, in the context of s.151, access could be granted under s.50(4) "only if it could be established that there had been some breakdown in the licensing process or if some illegality, impropriety or potential wrongdoing could be demonstrated and the documents, to which access was sought, would reveal that breakdown or impropriety". So far from finding any such impropriety here, the learned Vice President, having looked at the documents, referred expressly, in the reasons for decision, to "the absence of any evidence of impropriety on [Mr. Walker's] part, or on the part of members and staff of the Authority or on the part of the Ministers for the Crown and senior public servants". In those circumstances, the departments contended, there was no ground for the tribunal's granting access under the public interest override in s.50(4).
In my opinion, this argument tends impermissibly to elevate what is
essentially a question of fact into some kind of principle. Under s.50(4), once the
documents are found to be exempt under Part IV of the FOI Act, the tribunal is called
upon to consider the public interest, if necessary in all its aspects. The question is
whether such considerations of public interest are so strong as to override those
factors that confer exempt status in the first place. Where s.38 applies (as here) s. 38
is the immediate source of the exemption, but when there is an enactment providing
for secrecy (such as s.151) obviously the factors which have served to attract such
secrecy under that other enactment are relevant. Here, their nature and significance
must be determined by the terms and context of s.151 in the Casino Control Act. Once
their nature and significance have been determined, it is against those factors that
there must be weighed the public interest to which the tribunal is referred by s.50(4).
Whether the latter is sufficiently strong to override the former is essentially a matter
for the tribunal. In a given case it may well be that the tribunal comes to the opinion
that access should be granted under s.50(4) when, upon examination, the documents
in question reveal some breakdown in the licensing process or some illegality,
impropriety or wrongdoing. That might well persuade the tribunal to the "opinion
that the public interest requires that access to the document[s] should be granted"
under the FOI Act, and the Administrative Appeals Tribunal had occasion to say as
much in Gill at 103 and in David Syme at 229-30. But that is not a principle of law: it
is simply a determination on the facts. It does not mean that if in another case the
tribunal does not discern impropriety or the like, it cannot be of the opinion relevant
to an application of the public interest override. The departments' submission was in
effect to the contrary and should be rejected.
The tribunal's determination under s.50(4)

The question that remains is whether the tribunal fell into appealable error in determining in this instance that, under the public interest override in s.50(4), access should be granted to certain documents which were exempt under s.38 of the FOI Act. The tribunal carefully considered each of the sections relied upon by the departments to justify the claim to exemption under Part IV, namely s.28 (cabinet documents), s.30(1) (internal working documents of government) and s.34 (trade secrets and the like), as well as s.38. In relation to certain portions of some documents, the tribunal rejected the claims for exemption altogether (for example, in respect of cover sheets for facsimile transmission) and this aspect of the tribunal's determination is not now under challenge. The parties are concerned only with "the public interest override" in s.50(4), the operation of which, as I have said, presupposes that the document is first exempt under one provision or another of Part IV.
All the claims made by the departments for exemption under s.28 were
upheld below and, as s.28 is expressly excepted from s.50(4), that was an end of the
matter so far as those documents were concerned. Although a claim was considered
for their exemption under other sections in Part IV, it served no purpose, for no
order could be (or was) made for their disclosure once found exempt under s.28.
Claims for exemption under s.30(1) were in the main rejected (largely on the basis
that it was not established that disclosure "would be contrary to the public interest"
as required by s.30(1)(b)), while claims for exemption under s.34 were largely upheld
on the ground that the relevant documents contained information from bidders for
the casino licence "of a business, commercial or financial nature": see s.34(1)(a). To
the extent that the documents did not contain such information an order was made
for their release. No separate argument was addressed to us in relation to either
s.30(1) or s.34, no doubt because all of the documents for which exemption was
claimed under those two provisions (or one of them) were included in the claim for
exemption under s.38, a claim which in the main succeeded because of s.151. That is
why the argument about the operation of the public interest override in s.50(4)
proceeded principally in the context of s.151 and s.38. Save to except from the
argument the documents protected by s.28, little attention was paid in argument to
the other provisions of Part IV under which exemption was claimed.
Although we were invited by the departments to consider the correctness of the tribunal's order for access under s.50(4), it is obvious enough that it is for the tribunal, not the Court, to decide in any given case whether "the public interest" is strong enough to override those factors by which exemption is first accorded: compare Minister for Aboriginal Affairs v. Peko Wallsend Ltd. (1986) 162 C.L.R. 24 at 39-41. Respondent's counsel stressed that the decision was largely one of fact, and in this case there was evidence led about what was or was not in the public interest. Thus far, one must agree; there is a question of fact underlying the conclusion of the tribunal. None the less, a question of law is involved if the tribunal mistakes the proper construction of s.50(4), and in wrongly construing s.50(4) arrives at a wrong test of "the public interest". That would represent appealable error.
Here the departments relied in particular upon this passage in the tribunal's
reasons (para.128):
"The competing public interest can be broadly expressed as the right of
the public to have access to information which it requires to enable it
to debate and discuss matters that concern it to the greatest extent and
limited only by that information which, in the public domain, would
injure it."
This, said the appellants, flew in the face of the Full Court’s decision in D.P.P. v. Smith which served to highlight the distinction between a matter of public interest and something which was in the public interest (a distinction recognised, though rejected in a different context, by Mason, C.J. in Esso Australia Resources Ltd. v. Plowman (1995) 183 C.L.R. 10 at 31-32). Building on this – a distinction which is surely apt here - the departments contended that the tribunal had mistaken s.50(4), construing it to justify the granting of access merely because the subject matter of the document was a matter of public interest, and overlooking the need to find that what was in the public interest outweighed the factors by reference to which the documents were exempt in the first place.
The first problem is to be clear about what was meant by the passage which I have just quoted. The phrase "to the greatest extent" might qualify the expression "to have access to", or "to debate and discuss", or "that concern it". Respondent's counsel opted for the last, suggesting that what followed in the reasons of the tribunal indicated why the matters to be discussed and debated were such as to concern the public "to the greatest extent". The difficulty with that interpretation is found in the expression which immediately follows, "limited only by that information which, in the public domain, would injure it"; for that must surely qualify "to have access to". Of course one must be careful not to subject the words of the tribunal to the sort of precise analysis which must attend the construction of a statute but, having due regard to the context in which the impugned sentence appears, I think the tribunal meant this:
The competing public interest [which is relevant under s.50(4) if access is to be granted] can be broadly expressed as the right of the public to have access, to the greatest extent and limited only by that information which, if in the public domain, would injure it, to information which it requires to enable it to debate and discuss matters that concern it [the public].
On that reading of the passage in question, the departments contended that the tribunal was thereby creating a presumption in favour of disclosure if the document contained information to facilitate public debate; whereas s.50(4) was to the contrary, permitting disclosure only if the public interest demanded it. (The unstated premise to the submission seemed to be that all save the most formal documents could be said to contain information to facilitate public debate over one thing or another and there is perhaps some force in that.) If attention is confined to the one passage in the tribunal's reasons so far quoted in this context, the submission of the departments might be thought to read too much into one sentence in the penultimate paragraph of a lengthy decision. On the other hand there is another passage earlier in the reasons which lends significant support to the submission. In paragraph 123 the tribunal said this:-
"In balancing the competing public interests, due recognition must be
given to the public interest recognised by the Act itself. That is: is
there a public interest or a public benefit or good in the public having
available to it information in the possession of Government unless the
public interest in maintaining the confidentiality of such information
outweighs it?". [Emphasis added]
This seems to encapsulate the way in which the tribunal approached the exercise of
its discretion under s.50(4). Yet it surely reverses the position which is created by the
public interest override. As the departments submitted, it turned the provision on
its head.
Now, while there may well be a public interest in the disclosure of documents held by ministers and agencies (as was recognised by Mason, C.J. in Esso Australia Resources at 31-32), it is the FOI Act which is Parliament's express declaration of the extent to which such disclosure is in the public interest. The Act contains exceptions, exemptions and discretions, and each is entitled to full weight. Section 50(4) contains an "override" in specific terms and, as already mentioned, that subsection cannot be construed as authorising the tribunal to grant access to a document which is otherwise exempt merely if the tribunal is of opinion that it is in the public interest that the document be released. Yet, as I read the decision below, that is how the Act was understood in this instance. In recognising that there is a public interest in the dissemination of information which facilitates public debate, I think that the tribunal has failed to appreciate the significance of the documents' being exempt in the first place. By reason of one section or another within Part IV, the departments were entitled to refuse access on the ground that the documents were exempt (and the tribunal had no power under s.50(4) to grant access unless of opinion that they were not exempt or that the public interest overrode the exemption). Yet on the review, the tribunal seems, with respect, to have approached its discretion under subsection(4) by starting from the premise that the respondent was entitled to have access unless the departments justified non-disclosure in the public interest.
That is to cast a burden on the departments which, to my mind, is contrary to the Act. No doubt s.55(2) does cast a burden on the departments to show that an exemption has been properly claimed or that an order for access should not be made under s.50(4), but that deals only with the burden of establishing what the Act requires; it does not recast the requirement. In other words s.55(2) deals with the onus in respect of the issues raised by the Act; it does not alter those issues. Section 50(4) depends upon first a finding that a document is exempt under Part IV and then an opinion that the public interest is so strong as to demand that access be granted notwithstanding the factors which justify the exemption in the first place. In this instance, that meant that the public interest was so strong as to override the considerations underlying s.151 of the Casino Control Act, by which secrecy was directed. The question was not whether secrecy was appropriate or whether it was fitting for the departments to maintain secrecy; that was decided by Parliament when it enacted s.151. The departments were bound by s.151 to honour the confidentiality attaching to the information coming to them under the Casino Control Act. The question under s.50(4), coupled with s.55(2), was whether the departments could resist an order for access which, according to s.50(4), could be made only if, despite the very explicit provisions of s.151, the public interest was so strong as to demand that access be given.

57

It may be that in this case the tribunal was misled, to some extent, by having
to consider s.30(1) first. Under that heading, the tribunal gave careful consideration
to claims for exemption which depended, first, upon the nature of the matter which
would be disclosed if access to the document was given and, secondly, upon
whether disclosure "would be contrary to the public interest": see s.30(1)(a) and (b).
In relation to s.30(1), it was up to the departments to establish, to the satisfaction of
the tribunal, that disclosure "would be contrary to the public interest" and in
paragraph 107 of the reasons for decision, six grounds for that contention were
examined. I mention two of them: first, that disclosure "could inhibit the provision
of frank advice or the expression of frank opinions by officers [of the public service]
in the future" and secondly, that there was "a public interest in confidential
information that is entrusted to public servants remaining confidential". On both
heads, evidence was led from one Noble, a member of the Victorian Public Service
for the past seven years, who held senior positions within the Department of
Treasury and Finance and the Department of Premier and Cabinet. Mr. Noble said
that in his experience the professionalism and accuracy of the advice given by
Victorian public servants would not be prejudiced by possible release of the
documents under the freedom of information legislation, and the tribunal accepted
that opinion: contrast David Syme at 231. The tribunal said:-

"Against this consideration is the fact that only Jupiters Limited [one of
the contenders for the casino licence] sought to maintain the
confidentiality of the information. Crown Limited, according to
Mr. Hulls, did not object to the release of information relating to it,
which is consistent with the observer status it took throughout the
hearing. ... [In] the case of ITT Sheraton and Crown [the final two
contending applicants for licence], there was no direct evidence either
way as to their respective views on this topic. However, an inference
[can be] drawn from their failure to seek suppression of documents. I
note that in the David Syme case, Crown took the position in 1994 that
its interest lay in suppression. Its current position is explicable by the
fact that four years later it no longer considers the information it
entrusted to the Authority be kept strictly confidential."

In all of the circumstances, the departments were found by the tribunal not to have satisfied it that "that the release of these documents would be contrary to the public interest".

58

All that is unexceptionable in the context of s.30(1), especially paragraph(b).
The tribunal was simply determining, in the first part of its task upon review under
s.50 of the FOI Act, that the case for exemption under s.30(1) was not established to
its satisfaction. (What room that left for the public interest override is a question
that need not be explored on these appeals.) The decision under s.30(1) did not deny
any exemption that was established under another section within Part IV (in this
instance s.38) and hence the need for the tribunal to proceed still to the second part
of its task under s.50(4), to consider the public interest override. But here a good
deal of care was necessary before applying or building upon what had been decided
in the context of s.30(1), because the issues were different. No longer was the
question whether disclosure "would be contrary to the public interest" under
s.30(1)(b) (by reference to which exemption was denied to the documents under
s.30). The question now was whether, the documents being exempt because of s.38
in conjunction with s.151, the public interest was sufficiently strong to override the
factors that justified that exemption. The tribunal was not asked to decide whether
the documents should be exempt in the first place; Parliament had decreed that they
were. The problem raised by the public interest override was very different.

Yet in that very different context the tribunal expressly built on what it had
already decided under s.30(1). True it is that the reasons for decision are so
structured that much of what was said by the tribunal in relation to the public
interest under s.30 was expressly related also to the public interest override in
s.50(4): indeed that is my point. The considerations that were canvassed in relation
to the one were considered relevant to the other, the tribunal merely adding, towards
the end, some “further factors to take into account in considering whether the
override contained in s.50(4) should prevail”: see paragraph 127. To my mind it was
not appropriate to treat “public interest” in that way, indifferently as between s.30(1)
and s.50(4), and it was not appropriate simply to add to what had gone before. To
do that was to overlook that s.30 conferred an exemption, while s.50(4) contained an
override. Nor was this error of no consequence. First, the stringency of s.151, itself a
significant consideration in favour of maintaining confidentiality, was put aside on
the basis that the present concern was largely with information provided to the
Authority over five years ago at a time when the information might be supposed to
have been more sensitive than now. That might have been relevant if the
departments had had to argue the claim to an exemption, but here the exemption
was not in doubt: it was granted by s.38 in conjunction with s.151.
Further, as earlier when the tribunal was dealing with the claim for exemption under s.30(1) confidentiality was referred to as of less significance in the absence of any objection from Crown or ITT Sheraton "that their respective interests would be damaged by the release of the information". Jupiters alone, it was said, had objected to the release of the information, though it too did not call evidence. In this regard, the tribunal added:-
"The Tribunal is not satisfied that Jupiters would be disadvantaged by
release of the documents that relate to it. ... I conclude that in the
absence of evidence the Tribunal is not satisfied that Jupiters will
suffer prejudice by the release of these documents and that the public
interest requires their release."
This seems plainly to be error in casting an onus on Jupiters to establish prejudice in the disclosure of the information contained within the documents. Under s.50(4) the question was not whether Jupiters, which had communicated to the tribunal its objection to the disclosure, had established that it would be disadvantaged by the release of the documents; so much was implicit in the provision made by the Parliament in s.151. Jupiters was entitled under the Casino Control Act and consequently s.38 of the FOI Act to rely upon confidentiality being maintained; it did not have to make out a case for confidentiality, for Parliament had already done that. So far as s.50(4) is concerned, the question for the tribunal was whether the public interest demanded the release of the information mentioned in s.151 even though that release must breach the confidentiality promised to Jupiters by s.151 – and when the question is put in that way it is obvious that the tribunal has not yet expressed its opinion. That releasing the information now to the public would not occasion any prejudice to Jupiters (and the lapse of time and the nature of the information might be two of many considerations) was not a matter to be inferred in favour of the applicant simply because there was no evidence on it.
For these reasons I conclude that the tribunal's exercise of discretion under
s.50(4), in respect of the public interest override in particular, miscarried and the
determination must accordingly be set aside. That is not to say that there was not a
basis upon which the tribunal might have concluded at least that the information
sought in these requests did bear upon a matter of public concern. On one view, as
counsel sought to demonstrate, what was of public concern was the integrity of the
process by which the licence was granted: it was important, it was claimed, for the
public to be satisfied that when the licence was granted, it was granted according to
the proper process, as prescribed by legislation, unaffected by, for instance, the close
association between Mr. Walker (the treasurer of the Liberal Party) and the relevant
Ministers of Government (who belonged to the same party). The tribunal referred
expressly in the reasons for decision to "the absence of any evidence of impropriety
on [Mr. Walker's] part, or on the part of members and staff of the [Casino Control]
Authority or on the part of Ministers for the Crown and senior public servants",
though recognising at the same time that "the public has a legitimate entitlement to
be satisfied" that there was no such impropriety. But even if that be accepted, the
error lay in the failure of the tribunal to direct attention to the critical question: did
that public interest, or that aspect of "the public interest", altogether outweigh the
considerations by reference to which the documents were exempt in the first place?
The tribunal did not explain how these documents, or the information contained in
these documents, were relevant to a full and fair debate in the public domain about
the matter of public concern; nor did the tribunal say why these documents, or their
contents, bore upon the integrity of the licensing process. As was submitted on
behalf of the departments, so far as one can tell the tribunal was moved to grant
access because the documents contained information relevant to public debate and
that was not in accordance with the Act.
Conclusion

In my opinion in each proceeding leave to appeal should be granted, the
appeal allowed and the order of the tribunal set aside so far as it relates to the
documents now in issue. Without saying what would have followed had we been
given access to the documents for the purpose of these appeals, without such access
we must remit the relevant portion of the respondent’s application to the tribunal to
be determined afresh under s.50(4). And I would so order.

BATT, J. A.:

I have had the considerable benefit of reading in draft the reasons for
judgment of Phillips, JA. Having closely considered them, I find myself in complete
concurrence with them, including the disposition his Honour proposes. I offer only
the observation that a curious result of the inclusion in the FOI Act of the ambulatory
s.38 (and its non-exception from s.50(4)) is to preclude the otherwise respectable
argument that s.151 of the Casino Control Act 1991, as being an enactment that is both
later and specific, derogates from the generality of the FOI Act.

---

Citations

Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117

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DEPARTMENT OF PREMIER AND CABINET	Applicant/Appellant
v.
ROBERT HULLS, M.P.	Respondent

DEPARTMENT OF TREASURY AND FINANCE	Applicant/Appellant
v.
ROBERT HULLS, M.P.	Respondent

JUDGES:	TADGELL, PHILLIPS and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	24, 25 May, 1999
DATE OF JUDGMENT:	11 August, 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 117

[1999] VSCA 117

11 August 1999