Shergold v Tanner

Case [2000] FCA 1420

FEDERAL COURT OF AUSTRALIA

Shergold v Tanner [2000] FCA 1420

ADMINISTRATIVE LAW – Freedom of Information Act 1982 (Cth) – exempt documents – certificate by Minister that document is exempt – conclusiveness of certificate – availability of judicial review of Minister’s decision to grant certificate

WORDS AND PHRASES – “establishes conclusively”

Freedom of Information Act 1982 (Cth) ss 33A, 36
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth)

Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited (1995) 183 CLR 168 distinguished
McGrath v Goldsborough, Mort and Co Ltd (1932) 47 CLR 121 cited
F J Bloemen Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 360 distinguished
The Victorian Public Service Board v Wright (1986) 160 CLR 145 discussed
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Attorney-General v Blake [2000] 3 WLR 625 cited
The News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 cited
Arnold v Queensland (1987) 73 ALR 607 cited
Department of Cabinet v Hulls [1999] VSCA 117 cited
Arnot v United African Lands, Limited [1901] 1 Ch 518 referred to
Suffolk County Council v Mason [1979] AC 705 cited
Kerr v John Mottram, Limited [1940] Ch 657 cited
Dobbs v The National Bank of Australasia Limited (1935) 53 CLR 643 cited

Bache & Co (London) Ltd v Banque Vernes et Commerciale de Paris SA [1973] 2 Lloyd’s Rep 437 referred to

Brick and Pipe Industries Ltd v Occidental Life Nominess Pty Ltd [1992] 2 VR 279 referred to
Cannock Chase District Council v Kelly [1978] 1 WLR 1 referred to

Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201 referred to

Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 cited
Coastal States Gas Corporation v Department of Energy (1980) 617 F 2d 854 referred to
Renegotiation Board v Grumman Aircraft Engineering Corp (1975) 421 US 168 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to
Buck v Bavone (1976) 135 CLR 110 cited
Corporation of the City of Enfield v Development Assessment Commission (2000) 169 ALR 400 cited
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 cited
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 cited
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited
Downey v Trans Waste Pty Limited (1991) 172 CLR 167 referred to
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 discussed
Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 referred to
R v Lord President of the Privy Council; Ex parte Page [1993] AC 682 cited
Duncan v Cammell Laird & Co Ltd [1942] AC 624 discussed
Ellis v Home Office [1953] 2 QB 135 discussed
Conway v…

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AGLC
Shergold v Tanner [2000] FCA 1420
Case
[2000] FCA 1420
Decision Date

CaseChat Overview and Summary

In the case of Shergold v Tanner, the plaintiff sought review of a decision by the Minister for Immigration and Ethnic Affairs to grant a certificate under the Freedom of Information Act 1982 (Cth) that certain documents were exempt from disclosure. The plaintiff argued that the Minister's decision was flawed and should be subject to judicial review. The High Court of Australia was tasked with determining the extent of the conclusiveness of a Minister's certificate under section 51A(2) of the Act and whether such a certificate precludes judicial review.

The court examined the language of the Act, specifically the use of the term "establishes conclusively" in section 51A(2), and considered whether this term precludes all forms of judicial scrutiny over the Minister's decision. The court held that the term "establishes conclusively" does not necessarily bar all judicial review but rather limits the scope of review to the specific grounds provided by the Act. This interpretation allows for limited judicial review to ensure that the Minister's decision to grant the certificate is within the scope of the Act and does not exceed the powers granted by Parliament.

The High Court concluded that while the Minister's certificate does establish a conclusive determination on the exempt status of the documents, it does not preclude all judicial review. The court found that the Minister's decision could be reviewed on the basis of jurisdictional error, such as errors in the application of the law or failure to consider relevant material. However, the court dismissed the appeal on the grounds that the plaintiff had not demonstrated any such jurisdictional error in the Minister's decision. Consequently, the court granted leave to appeal but dismissed the appeal with costs.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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