Shergold v Tanner

Case [2002] HCA 19

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND HAYNE JJ

PETER ROGER SHERGOLD, AS DELEGATE                   APPELLANT

OF PETER KEASTON REITH, MINISTER OF

STATE FOR EMPLOYMENT, WORKPLACE
RELATIONS AND SMALL BUSINESS

AND

LINDSAY TANNER  RESPONDENT

Shergold v Tanner
[2002] HCA 19
23 May 2002
M63/2001

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

A L Cavanough QC with W A Harris for the appellant (instructed by Australian Government Solicitor)

K H Bell QC with S G E McLeish for the respondent (instructed by Maurice Blackburn Cashman)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Shergold v Tanner

Administrative Law (Cth) – Judicial review – Freedom of information – Documents affecting relations between the Commonwealth and a State – Internal working documents of an agency, a Minister or the Government of the Commonwealth – Refusal of access to documents in respect of which Minister's delegate issued certificates pursuant to ss 33A(2) and 36(3) of the Freedom of Information Act 1982 (Cth) ("the FOI Act") – FOI Act provides that, subject to Pt VI of the Act, certificates, while in force, "establish conclusively" that disclosure would be contrary to public interest or that documents are exempt documents and do not contain matter the disclosure of which would be in the public interest – Whether "conclusive evidence" provisions impliedly amend conferral of jurisdiction on the Federal Court by the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") or by the Judiciary Act 1903 (Cth) ("the Judiciary Act") – Whether issue of certificates reviewable by the Federal Court under the ADJR Act or the Judiciary Act.

Federal Court of Australia – Jurisdiction – Whether Court's jurisdiction under ADJR Act or the Judiciary Act impliedly limited by "conclusive evidence" provisions of the FOI Act – Whether jurisdiction conferred by the ADJR Act and the Judiciary Act extends to judicial review of decision to issue certificates under ss 33A(2) and 36(3) of the FOI Act.

Statutes – Interpretation – Conferral of jurisdiction upon a court – Whether later legislation withdraws or limits conferral of jurisdiction – Need for clear and unmistakable implication to have such effect.

Commonwealth Constitution, s 77(i).
Freedom of Information Act 1982 (Cth), ss 11, 33A, 36.
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 8.
Judiciary Act 1903 (Cth), s 39B.
Administrative Appeals Tribunal Act 1975 (Cth).
Ombudsman Act 1976 (Cth).

  1. GLEESON CJ, McHUGH, GUMMOW, KIRBY AND HAYNE JJ.   The issues arising in this appeal turn upon the interrelationship between various items of legislation of the Commonwealth which make significant provision in the area of public law.

    The federal system of administrative law

  2. The legislation is, on the one hand, the Freedom of Information Act 1982 (Cth) ("the FOI Act") and, on the other, the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), the Ombudsman Act 1976 (Cth) ("the

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Details
AGLC
Shergold v Tanner [2002] HCA 19
Case
[2002] HCA 19
Decision Date

CaseChat Overview and Summary

The parties to this appeal were Shergold, the Principal Officer and Secretary of the Department of Employment, Workplace Relations and Small Business, and Tanner, a member of the House of Representatives. Tanner had requested access to certain documents concerning waterfront reform, which was refused by the Department. The dispute concerned whether the Federal Court had jurisdiction to review the decision to refuse access, particularly in light of certificates issued by the appellant under sections 33A(2) and 36(3) of the *Freedom of Information Act 1982* (Cth) ("FOI Act"). These sections provide that such certificates establish conclusively that disclosure would be contrary to the public interest or that the documents are exempt. The appeal was heard by the High Court of Australia.

The central legal issue before the High Court was whether the "conclusive evidence" provisions within the FOI Act, specifically sections 33A(2A) and 36(3), impliedly amended or limited the jurisdiction conferred upon the Federal Court by the *Administrative Decisions (Judicial Review) Act 1977* (Cth) ("ADJR Act") and section 39B of the *Judiciary Act 1903* (Cth). The appellant argued that these conclusive evidence provisions foreclosed any avenue of judicial review under the ADJR Act or the Judiciary Act, meaning the Federal Court could not review the decision to issue the certificates.

The High Court, by majority, dismissed the appeal. The Court reasoned that for later legislation to withdraw or limit the conferral of jurisdiction upon a federal court, there must be a clear and unmistakable implication to that effect. The Court noted that the ADJR Act preceded the relevant provisions of the FOI Act. Applying principles of statutory interpretation, the Court held that the "conclusive evidence" provisions of the FOI Act did not, by implication, amend the jurisdiction conferred by the ADJR Act or the Judiciary Act. Therefore, the Federal Court retained jurisdiction to review the decision to issue the certificates.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

The FOI Act provides for the making of various decisions of an administrative nature for which one or more of the three avenues of review is open. It is the Federal Court, operating under the ADJR Act, with whose jurisdiction this appeal particularly is concerned. The "conclusive evidence" provisions in certain sections of the FOI Act are said by the appellant to foreclose any avenue of review under the ADJR Act, or under s 39B of the Judiciary Act.The facts The respondent at the relevant time was a member of the House of Representatives holding the position of Shadow Minister for Transport in the Federal Opposition, with primary responsibility for representing the Federal Opposition on matters relating to the waterfront. On 17 December 1997, he made a request to the Department of Employment, Workplace Relations and Small Business ("the Department") for access to documents, being reports arising from certain consultancies on waterfront reform. The appellant was the Principal Officer and Secretary of the Department. Section 11 of the FOI Act provides that, subject to that statute, "every person has a legally enforceable right to obtain access in accordance with this Act to … a document of an agency, other than an exempt document". The expressions "document of an agency" and "agency" are defined in s 4(1) in terms which include the Department. The request by the respondent was refused on 16 February 1998 and that refusal then was the subject of an internal review under s 54 of the FOI Act. Section 54 is in Pt VI (ss 53‑66) which is headed "Review of decisions". The Deputy Secretary of the Department, Mr R Stewart-Crompton, on 20 April 1998 affirmed the decision to refuse access to most of the contents of the reports sought by the respondent. Thereafter, on 30 April 1998, the respondent applied under s 55 of the FOI Act to the AAT for a review of the Deputy Secretary's decision. Then, by instrument dated 27 August 1998, the Minister delegated his powers under certain provisions of the FOI Act, including ss 33A and 36, to the appellant as the Principal Officer of the Department. Sections 33A(6) and 36(8) confer upon the responsible Minister of an agency a power of delegation and the effect of s 33A(7) and s 36(9) respectively is that the exercise of power by a delegate is deemed to have been performed by the responsible Minister. On or about 30 December 1998, the appellant issued what were stated to be certificates under ss 36(3) and 33A(2) of the FOI Act in respect of the documents. This step was taken at a time when the hearing of the review by the AAT had been fixed for 10 February 1999.The applicable legislation Sections 33A and 36 are included in Pt IV (ss 32‑47A) of the FOI Act, which is headed "Exempt documents". The term "exempt document" is defined in s 4(1) in terms which include the documents to which Pt IV applies. Section 33A is concerned with documents affecting relations between the Commonwealth and a State and s 36 with internal working documents of an agency, a Minister or the Government of the Commonwealth.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HUGH, GUMMOW, KIRBY AND HAYNE JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HUGH, GUMMOW, KIRBY AND HAYNE JJ

The appeal in this Court springs from the litigation which ensued in the Federal Court respecting the competency of the application for judicial review. It should be noted that that application had been amended by including reliance upon s 39B of the Judiciary Act as a further source of jurisdiction. Section 39B was inserted in 1983, after the commencement of the FOI Act[7].[7]By the Statute Law (Miscellaneous Provisions) Act (No 2) 1983 (Cth). Section 39B has since been amended but not in a manner presently relevant.The operation of the ADJR Act It is convenient first to consider the position that arises from reliance upon the ADJR Act, a statute which preceded the FOI Act. That temporal sequence is the reverse of that with which this Court was concerned in Deputy Commissioner of Taxation v Richard Walter Pty Ltd[8].[8](1995) 183 CLR 168. The provisions of the Income Tax Assessment Act 1936 (Cth) relied upon in Richard Walter, in particular the "conclusive evidence" provision in s 177(1) and the system for review and appeal with respect to assessments, predated the conferral of jurisdiction upon the Federal Court (by s 39B of the Judiciary Act). An issue upon which various views were expressed in Richard Walter was whether the conferral of jurisdiction by s 39B impliedly amended s 177[9]; here it is whether the "conclusive evidence" provisions of the FOI Act impliedly amend the conferral of jurisdiction by the ADJR Act.[9](1995) 183 CLR 168 at 181, 193, 213, 234, 242‑243. The issue now before this Court may be expressed as being whether the decisions of the appellant to issue the certificates under the FOI Act were not decisions reviewable by the Federal Court under s 5 of the ADJR Act because of the effect of the phrase "establishes conclusively" in ss 33A(2A) and 36(3) of the FOI Act in the context of that statute as a whole. In the Federal Court, the primary judge (Marshall J) determined that issue in a manner favourable to the subsistence of jurisdiction under the ADJR Act[10]. The Full Court, by majority (Black CJ and Finkelstein J; Burchett J dissenting) dismissed an appeal[11].[10]Tanner v Shergold (2000) 60 ALD 771; 171 ALR 672.[11]Shergold v Tanner (2000) 102 FCR 215. It will be apparent from a consideration of the issue as expressed above that the effect of an answer adverse to the existence of jurisdiction is that the phrase "establishes conclusively" in the provisions of the FOI Act redefines, within the meaning of s 77(i) of the Constitution, the jurisdiction otherwise conferred upon the Federal Court by the ADJR Act. These provisions of the FOI Act, if they have this operation, like the provisions of the ADJR Act which conferred the jurisdiction, require for their validity support by s 77(i) of the Constitution. The power which validly supports a law supports the law which amends or repeals it[12].[12]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 356‑357 [15]. In Byrne v Australian Airlines Ltd, McHugh and Gummow JJ observed[13]:"[W]here a question arises as to the creation of new rights and liabilities which will engage Ch III of the Constitution, it is to be expected that the Parliament will clearly state its will[14]."So also where the Parliament, by redefining the jurisdiction of a federal court, withdraws rights and liabilities from what otherwise would be the engagement of Ch III.[13](1995) 185 CLR 410 at 458. See also DJL v The Central Authority (2000) 201 CLR 226 at 236‑238 [12]-[13].[14]cf Willocks v Anderson (1971) 124 CLR 293 at 297‑298.