Shergold v Tanner

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.