Shopping Centre Council of Australia and Australian Competition a Nd Consumer Commission
[2004] AATA 119
•9 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 119
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/857
GENERAL ADMINISTRATIVE DIVISION ) Re SHOPPING CENTRE COUNCIL OF AUSTRALIA Applicant
And
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Respondent
DECISION
Tribunal The Hon R N J Purvis Q.C., Deputy President Date9 February 2004
PlaceSydney
Decision The decision under review is affirmed subject to the matters that may be released in documents 2, 3, 4 and 6 as set out below:
Document 2
Page 2
“Andrew and Nigel
…
Your comment would be greatly appreciated.
Andrew - I have guessed Nigel’s e-mail address, so if I didn’t write it properly, please pass on.
Thank you and regards
Melissa
…”Page 3
“Lee
…
Would appreciate any comments you might have on this.
Nigel
…
Andrew and Nigel
…
Your comments would be greatly appreciated
Andrew - I have guessed Nigel’s e-mail address, so if I didn’t write it properly, please pass on.
Thank you and regards
Melissa
…”
Document 3
“Andrew and Nigel
…
Your comments would be greatly appreciated.
Andrew - I have guessed Nigel’s e-mail address so if I didn’t write it properly, please pass on.
Thank you and regards
Melissa
…”
Document 4
Page 1
“Hi Melissa
Apologies for the delay. I sought comment from a colleague as I indicated that I would but unfortunately have not received a response.
…
I hope these comments are of some assistance and once again apologise for the delay.
Kind regards
Nigel”
Page 2
“Andrew and Nigel
…
Your comments would be greatly appreciated.
Andrew - I have guessed Nigel’s e-mail address, so if I didn’t write it properly, please pass on.
Thank you and regards
Melissa”
Document 6
“Andrew
…
I am happy to contact Ms Atallah on this. Maybe you and I should call her together tomorrow.
Nigel
…
I just spoke with Melissa Atallah re: our comments on the paper.
She received them and thanked us for our input.
…”
[Sgd] R N J Purvis
Deputy President
CATCHWORDS
Freedom of Information - documents re inter agency discussions on ‘draw down’ of Commonwealth legislation - whether release of documents could reasonably be expected to damage relations between State and Commonwealth Government - public interest claim in respect of internal working documents in the deliberative stages of drafting legislation
Freedom of Information Act 1982 (Cth) sections 33A(1)(a) and (b), 36 (1, 40(1)(d))
Re Guy and Department of Transport (1987) 12 ALD 358
Arnold v Queensland (1987) 13 ALD 195
Re Angel and Department of Arts, Heritage and Environment (1995) 9 ALD 113
The Environment Centre NT Inc and Department of Environment, Sport and Territories (1994) 35 ALD 765
Re Mann and Australian Taxation Office (1985) 7 ALD 698
Re Howard and Treasurer of the Commonwealth (1984) 7 ALD 626
Re James and Australian National University (1984) 6 ALD 687
Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588
Wallace and Director of Public Prosecutions [2003] AATA 119
Telstra Australia Limited v Australian Competition and Consumer Commission [2000] AATA 71
Marco Asic v Australian Federal Police (1986) 11 ALN 184REASONS FOR DECISION
9 February 2004 The Hon R N J Purvis Q.C., Deputy President the application
1. In August 2002 the Victorian Minister for Small Business invited comments on an Exposure Draft of a Retail Leases Bill, then scheduled for introduction in the near future into the Victorian Parliament. During the year 2001 the office of Regulation Reform of the Victorian Department of Innovation, Industry and Regional Development (“the ORR”) had conducted a comprehensive review of the Victorian Retail Tenancies Legislation. Submissions were made and comments were given by numerous organisations and individuals amongst whom was the Shopping Centre Council of Australia (“the Applicant”).
2. It is said by Mr David Latina, the acting director of ORR that,
“the objective of the Government was to put in place a practical legislative framework that provided an equitable balance in relationships between landlords and tenants supported by the general policy determination of the Government to promote a protective business environment in Victoria”
(Exhibit 1 paragraph 5)
and that
“one of the key objectives of the ORR review was to identify the best means of satisfying the Victorian Governments election commitment to provide reasonable security of tenure to tenants. This involved seeking to find common ground between the competing interests of tenants who sought greater protection when leases were up for renegotiation and the landlords who saw this as impinging on basic property rights. The discussion paper identified a range of possible reform options including the drawing down [from the Commonwealth Trade Practices Act] of unconscionable conduct provisions. The review’s extensive consultation process was a key means of assessing the impact of the various options and advising the Government of the preferred approach on this sensitive policy matter.”
(Exhibit 1 paragraph 6)
3. An issue paper and a discussion paper were circulated. Public seminars and workshops were conducted and consultations held with “peak bodies” and “key stakeholders” having practical experience “in the drafting of laws and the application of relevant legislation” (Exhibit 1). The proposed new legislation was then prepared.
4. The ORR consulted with the Australian Competition and Consumer Commission (“the ACCC”) on the exposure draft, this on account of the responsibility of the ACCC with respect to enforcing the Trade Practices Act 1974 and specifically the provisions relating to unconscionable conduct and section 51AC of that Act. It was thought that by “drawing down” section 51AC the proposed legislation would provide an appropriate solution for the problem of security of tenure. Measures referrable to disclosure statements and dispute resolution were also in the bill, issues with which it was believed the ACCC had considerable expertise “particularly in relation to its enforcement responsibilities with respect to franchises in its Small Business Rural and Regional Program “ (Exhibit 1).
5. In his affidavit evidence Mr Brian Cassidy, the Chief Executive Officer of the ACCC stated that (Exhibit 2 paragraph 2):
“The ACCC is the Commonwealth’s regulatory agency concerned with consumer protection and competition. The ACCC’s mission is to enhance the welfare of Australians by fostering competitive, efficient, fair and informed Australian markets. It is an independent statutory authority which administers the Trade Practices Act 1974 (“TPA”), the Prices Surveillance Act 1983 (“PSA”) and other legislation. Administering this legislation involves both promoting the Commonwealth’s consumer protection and competition policies and enforcing the provisions of the legislation. The ACCC does this by pursuing strategies which are intended to lead to improved competition and efficiency in markets and greater adherence to fair trading practices in well informed markets.”
6. The Applicant is, according to Mr Milton Cockburn its Executive Director, “the industry body that represents the major owners and managers of shopping centres in Australia” (Transcript pages 14/15). The Applicant was requested by Mr Latina to provide its own comments in respect of the above mentioned exposure draft, which it did on 23 August 2003. Meetings and telephone conversations ensued. The Exposure Draft Bill was of concern to the Applicant particularly the unconscionable conduct provision. Sub-paragraphs had been added to the like provision in the Trade Practices Act. Correspondence passed between the Applicant and the ORR. The Applicant sought to have the “offending subparagraphs” deleted and was informed that the ORR had been in contact with the ACCC who expressed no concern about the additional subparagraphs. The subparagraphs in respect of which concern was expressed included those in paragraph 77 which read:
“77. Unconscionable conduct of a landlord
(1) A landlord under a retail premises lease must not, in connection with the lease, engage in conduct that is, in all circumstances, unconscionable.
Note: Section 78 deals with unconscionable conduct by a tenant.
(2) Without limiting the matters to which the Tribunal may have regard for the purpose of determining whether a landlord has contravened subsection (1), the Tribunal may have regard to -
…
(l) the extent to which the landlord was willing to negotiate the rent under the lease based on a valuation of the current market rent carried out by a specialist retail valuer appointed by agreement between the landlord and tenant; and
(m) whether the landlord’s use (if any) of information about the turnover of the tenant’s or a previous tenant’s business to negotiate the rent under the lease was in the interests of the tenant; and
(n) the extent to which the landlord unreasonably required the tenant to incur or contribute to fit out costs.”
7. Negotiations and discussion took place in relation to these provisions. The Retail Leases Bill 2002 was introduced into the Victorian Parliament in October 2002. It lapsed by reason of the prorogation of Parliament. On being re-elected the Government reintroduced the Bill on 27 February 2003. It was duly passed into Legislation operative on and from 1 May 2003.
8. On 20 December 2002 the Applicant wrote to the ACCC requesting pursuant to the Freedom of Information Act 1982 (Cth) access to relevant documents concerning the ACCC's discussions with the ORR with respect to the Retail Leases Bill. More specifically the Applicant requested (T3/p40):
“…a copy of all documents, (letters, emails, file notes etc.) in the commission’s possession relating to communications during 2002 between the Australian Competition and Consumer Commission and the Victorian Government relating to that Government’s intention to ‘draw down’ section 51 AC of the Trade Practices Act into Victorian retail tenancy legislation or into the proposed Retail Leases Bill…”
9. As it was required to do the ACCC informed the ORR of the Freedom of Information request. The ORR noted in correspondence that the advice received from the ACCC in relation to the Exposure Draft was a factor that was considered in the drafting of the Retail Leases Bill, which had implications for Commonwealth and State arrangements and administering agencies. Mr Latina contends that:
“My letter of 6 February states that the Department has concerns that the documents are preliminary in nature and that release of them could adversely affect the relationships between the agencies. The letter then states that it would be contrary to the public interest if, in the future, such debate and discussion as are contained in the documents, were to be hampered by concerns about them being made public. The letter concludes that frank and open discussion between government agencies is an essential element of achieving the desired outcome of effective legislation.”
(Exhibit 1 paragraph 17)
10. On the 13 February 2003 some documents were released. Exemption pursuant to the provisions of the Freedom of Information Act 1982 (Cth) was claimed in respect of other documents or portions of them. The Applicant sought an internal review of the 13 February 2003 decision. On 26 March 2003 whilst generally affirming the original decision to deny access the decision-maker decided to grant access to some documents previously claimed to be exempt. Further material was released. Exemption was still claimed however as to other documents or portions of them. Application was then made to the Tribunal on 26 May 2003 for review of the decision of 26 March 2003.
11. Between 26 May 2003 and the commencement of the hearing of the application for review access was granted to further material and indeed during the currency of the hearing a decision was made by the ACCC to no longer claim some material as exempt. Whilst exemption was initially claimed by the ACCC in reliance upon various specific provisions contained in the Freedom of Information Act 1982 (Cth) the basis upon which the exemption is now claimed has in several instances been changed. It is appropriate for me to look at the position as it is now said by the ACCC to be and not to direct my attention to be basis upon which the original decision-maker maintained exemption. It is my task to give consideration to the relevant documentary material and arrive at a decision on the basis of the evidence placed before the Tribunal as to whether the Freedom of Information Act 1982 (Cth) by whatever provision does or does not ensure that the relevant material is exempt from release. Accordingly it is not necessary for me to direct specific attention to the original decision or indeed that made on internal review from which the application to the Tribunal has been made.
12. In a statement of reasons outlining the grounds upon which the present review was sought the Applicant stated (T1/p5):
“1. The Victorian Government has now “drawn down” Section 51AC of the Trade Practices Act into the Victorian Retail Leases Act. In doing so the Government has varied the provisions of section 51AC. According to legal advice to the Shopping Centre Council of Australia this has expanded the concept of unconscionable conduct and has introduced even greater uncertainty.
2. A government committee in Western Australia reviewing its commercial Tenancy (Retail Shops) agreements Act has requested the WA Government to also draw down section 51AC in the terms as in Victoria.
3. If accepted this means the law relating to unconscionable conduct in retail tenancies in Victoria and WA will now be different in Victoria and WA to that in the Trade Practices Act, and different to that in NSW, the ACT and Queensland, which have drawn down the provisions without variation.
4. This will be an ongoing public policy debate in Australia (particularly if other States seek to follow the lead of Victoria and possibly, WA). It is therefore important that the views of the ACCC, the body responsible for the administration of the Trade Practices Act, are publicly known.
5. The ACCC has previously drawn attention to the confusion created by the differing State laws on retail tenancies and the need for uniform or harmonious laws. It is difficult to accept, therefore, as claimed by the Victorian Government, that the ACCC agreed to the Victorian law being different to that which applies federally…”
13. The documents or part documents in respect of which exemption is still claimed are as scheduled below with the numbering as attributed to them in the ACCC’s “Review Schedule of Documents” (Exhibit 5), a short description of the document and the statutory basis now claimed for exemption:
claim for exemption
Document No
Description
No of Folios not released
Statutory basis of claim for exemption
1
AAAC comments on Exposure Draft (2 copies)
4
Section 33A(1)(a)
2
e-mail dated 03/09/02 from N Ridgeway/ACCC to L Hollis/ACCC
e-mail dated 03/09/02 from M Atallah/ORR to A Rodrigues/ACCC
3
sections 36(1) and, 40(1)(d)
sections 33A(1)and 33A(1)(b)
3
Part of e-mail dated 04/09/02 from M Atallah/ORR to A Rodrigues/ACCC which includes e-mail dated 03/09/02 from M Atallah/ORR to A Rodrigues/ACCC and N Ridgeway/ACCC (contained in document 2)
2
sections 33A(1)(a) and 33A(1)(b)
4
e-mail dated 05/09/02 from N Ridgeway/ACCC to A Rodrigues/ACCC which includes e-mail dated 04/09/02 from N Ridgeway/ACCC to M Atallah/ORR
2
sections 33A(1)(a) and 33 A(1)(b)
5
Draft comments ex Exposure Draft (with annotations);
Draft comments re Exposure Draft (with annotations);
Draft comments re Exposure Draft (with annotations)
pages 3, 6, 7, 8 and 11 of Exposure Draft (with annotations)
13
sections 33A(1)(a), 36(1) and 40(1)(d)
sections 33A(1)(a), 36(1), 40(1)(d)
sections 33A(1)(a), 36(1), 40(1)(d)
sections 33A(1)(a), 36(1) and 40(1)(d)
6
e-mail dated 29/08/02 from Ridgeway/ACCC to A Rodrigues/ACCC which includes e-mail dated 29/08/02 from A Rodrigues/ACCC to N Ridgeway/ACCC
1
section 36A(1)(a) and 40(1)(d)
relevant statutory provisions
14. The Freedom of Information Act 1982 (Cth) (the FOI Act) relevantly provides:
“Section 33A documents affecting relations with States
(1) Subject to subsection (5), a document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or
(b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
…
(5) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.
…
Section 36 Internal working documents
(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a) would disclose matter in the nature of, or relating, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and
(b) would be contrary to the public interest.
…
Section 40 Documents concerning certain operations of agencies
(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(d) have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations.
(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.”
observations as to construction of the legislation
15. The Tribunal received submissions made on behalf of the Applicant and the ACCC as to the meaning to be ascribed to various expressions used in the FOI Act. What follows is a distillation of the submissions so received, it being noted that the submissions so made on behalf of the ACCC are substantially accepted by me as correctly detailing the relevant legal position.
16. The meaning to be ascribed to the use of the word reasonable in the context of section 3A(1)(a) is “reasonable as distinct from something that is irrational, absurd or ridiculous” (Re Guy and Department of Transport (1987) 12 ALD 358 at 363). This section does not require that a reasonable expectation be established of generalised damage to relationships between the Commonwealth and a State, but rather that there be damage to relations in a relevant respect. As was noted in Arnold v State of Queensland (1987) 13 ALD 195 at 204:
“…the words “relations between the Commonwealth and the relevant state” refer to the total relationship between the Commonwealth and the relevant State. As is essential in a Federation there exists a close working relationship over a wide spectrum of matters and a multitude of levels between representatives of the Commonwealth and representatives of each state. The wording “relations” includes all of those contracts…Questions of degree arise. They can only be considered in the light of the facts of each case.”
17. Section 33A(1)(b) looks to the nature of the information or matter divulged (Re Angel and Department of Arts, Heritage and Environment (1995) 9 ALD 113 at 120). Whether or not the information is confidential and the circumstances in which it was communicated will simply be two of the matters which must be taken into account in considering whether on the balance of probability it was information communicated in confidence by the Government of the State to the Commonwealth (The Environment Centre NT Inc and Department of Environment, Sport and Territories (1994) 35 ALD 765 at 776).
18. Section 33A(5) assumes that as a general principal there is a public interest in the non-disclosure of a document falling within subsection 1 (Arnold v State of Queensland (1987) 13 ALD 195 at 204). There may be particular cases where the public interest considerations in favour of disclosure are so “well known or are so obvious” that the agency should take those considerations into account when making its decision without its attention having been specifically drawn to them (Re Mann and Australian Taxation Office (1985) 7 ALD 698 at 710). The disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest (Re Howard and Treasurer of Commonwealth of Australia (1984) 7 ALD 626 at 635).
19. Section 36(1)(a) exempts internal working documents. The protection afforded by section 36 is to documents relating to the deliberative process involved in the functions of the agency. It is not necessary that a document be a communication from one person to another before it can be found to fall within this exemption (Re James and Australian National University (1984) 6 ALD 687 at 694). The relevant documents are those containing opinion, advise or recommendations relating to the internal processes of deliberation that may be shielded from disclosure. The documents have been described as “internal thinking documents” (Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at 606). Any document which would disclose matter in the nature of or relating opinion, advice or recommendation obtained, prepared or recorded or consultation or deliberation that took place in the course of or for the purposes of those deliberative processes is within the ambit of section 36(1)(a). Deliberative processes are those involved in the functions of the particular agency to which the requested documents are said to relate (Re Waterford [supra] at 606; Wallace and Director of Public Prosecutions (2003) AATA 119 at para 61).
20. Section 36(1)(b) makes provision for the disclosure of a document being contrary to the public interest. The exemption covers documents such as pre-decisional communications occurring within an agency in the expectation that the communication will not be disclosed to the public (Re Howard [supra] at 633). The disclosure of communications made and recorded in the reasonable expectation that their contents would remain confidential may be contrary to the public interest and the efficient and effective conduct of the business of an agency (Wallace [supra] para 40 and 45). Further, where disclosure of a draft or working document would tend to cause confusion or misunderstanding because of the provisional nature of the document and would inhibit the making or retention of such notes in the future, disclosure would not be in the public interest (Wallace [supra] para 57, 63).
21. The phrase “could reasonably be expected to” in section 40(1)(d) refers to an expectation that is based on reason, that is to say “one for which real and substantial grounds exist when looked at objectively” (Telstra Australia Limited v Australian Competition and Consumer Commission (2000) AATA 71 at para 15). Reference to a “substantial adverse effect” means “real or of substance and not insubstantial or nominal” (Marco Ascic v Australian Federal Police (1986) 11 ALN 184). Further, the expression “the conduct of the operations of an agency” is capable of extending to the way in which an agency discharges or performs any of its functions (Re James [supra] 699).
the evidence - claims to exemption with reference to specific documents
document one
22. Document one consists of comments made by the ACCC on the Exposure Draft.
23. According to Mr Latina release of the comments would or could reasonably be expected to cause damage to relations between the ORR and the ACCC. It would discourage written communication between a Victorian Government Authority such as the ORR and the ACCC in relation to matters of common interest. The public interest he maintains is served by Commonwealth and State Government Agencies communicating with frankness their views on draft legislation. There is a need on the part of an authority such as the ORR to be able to assure the Commonwealth Government that its view may be expressed frankly without fear that those views will be disclosed to persons who represent a section of the public. He believes that in the event of disclosure the ACCC or a similar Commonwealth Agency would be reluctant to express their views in writing, on draft legislation to a Victorian Government Agency in the future. Thus without the ability to choose to communicate in confidence with stakeholders, the ability of the ORR to effectively achieve its objects would be severely hampered. There is a need he maintains for stakeholders to be able to express their views candidly and not be subject to the possibility of the information being disseminated to sections of the public. If document one were released, the ORR would have no choice but to limit its level of consultation with Commonwealth Agencies such as the ACCC (ref Exhibit 1 paragraphs 25 to 28).
24. In his oral evidence Mr Latina expanded upon the position maintained by him. He said that it is important to have an exchange of views between Commonwealth and State Agencies especially where comments change and develop. The exchanges are of an evolving nature, not authoritative, but reflective of tentative views. The latter are very much of a fluid nature seen in the dynamics of the development of legislation. This frank exchange of contextual information, inconclusive as it is, is of significant assistance in the putting together of a final draft. The ORR was seeking from officers of the ACCC advice consequent upon their special experience with the administration of section 51AC of the Trade Practices Act and the expertise thereby obtained. The practical experience obtained by the ACCC is invaluable and the ORR was using the Commonwealth Agency as a “sounding board” for its views. If the material should be released, the quality of the communication between the agencies would be significantly affected.
25. On behalf of the ACCC Mr Cassidy maintained that release of the document likewise would or could reasonably be expected to cause damage to relations between the Commonwealth and a State. The comments on the Exposure Draft he maintained, are views based on both the ACCC’s understanding of the issues affecting small businesses as well as the ACCC’s experience in enforcing section 51AC of the Trade Practices Act.. It is clear he said from the content of the documents that the views expressed were not intended to be provided to a section of the public such as landlords or indeed to retail tenants. The comments were provided to a State Government Agency that was in the process of designing new retail tenancy laws. If the comments were disclosed, the Commonwealth/State relationship would be damaged because the ACCC would be extremely reluctant to candidly address in written communications to State agencies views about trade practices related issues. The ACCC acts in the public interest and not in the interest of a section of the public. Mr Cassidy maintains that it is specifically in the public interest to ensure that such liaison continues to take place, the effective and efficient exchange on information being crucial to the public interest. This factor he says far outweighs the interests of a section of the public who may be seeking to obtain the material. The Applicant represents a section of the public and not the public interest at large. The public interest in the ACCC being able to continue to carry out its functions in an efficient and cost-effective way outweighs he contends, any public interest in disclosing the document (ref Exhibit 2, paragraphs 27 to 31).
26. In his oral evidence Mr Cassidy emphasised that the comments on the Exposure Draft were "fairly much of a preliminary nature in that they were provided on an informal basis and certainly they were provided without any formal consideration by the Commission - the Commission itself” (Transcript p35). Mr Cassidy expressed his concern “that basically we were approached by an agency of the Victorian Government for our comments on what was at that stage draft legislation and I must say this is something which happens reasonably frequently for the Commission because of the nature of the work we do and the legislation we administer” (Transcript p35).
He continued by saying that if these sort of comments were to be made publicly available “it would make that process that we often undertake of providing comments on draft state legislation a fairly difficult one and indeed I think damage somewhat the …relationship between State Governments on the one hand and the Commission on the other and therefore the Commonwealth because the Commission is an agent of the Commonwealth, in that it would mean that a communication would certainly from our point of view what was meant to be a confidential communication would become public and therefore any future such communications either we and/or a state agency would immediately be concerned.” (Transcript p36)
He emphasised that the comments were made in the course of a State Government deliberative and legislation development process. If the comments should find their way into the public arena Mr Cassidy is of the view that it would be difficult for the ACCC to provide these sort of comments in the future.
27. With respect to the broad public interest Mr Cassidy maintained that the ability of the ACCC to be able to communicate on the relevant sort of issues with State agencies generally is very much in the public interest. The narrower section of public interest needs to be separate from the broader public interest in effective communication between the ACCC, State Governments and their agencies.
“It is a public interest in being able to, in this case have effective State Government legislation which does not in any sense cut across or…impede the operation under Commonwealth Legislation in similar sorts of areas” (Transcript p37).
The comments contained in the documents are based on the ACCC’s experience in administering similar provisions in the Trade Practises Act.. Mr Cassidy maintained that “if these sorts of comments are made to be made public than that would somewhat limit our ability to provide these sorts of comments to other Government agencies” (Transcript p106).
Indeed the comments in document one “are comments where we think perhaps the particular provisions in the Draft Bill that we are commenting on could be improved in some way or other” (Transcript p107).
The ACCC was “merely drawing on our experience with administering those sorts of provisions in making the comments we did to the Victorian Agency” (Transcript page 108).
28. It is maintained on behalf of the ACCC that the position taken by it is reasonable in the circumstances and is not “irrational, absurd or ridiculous” within the meaning of Re Guy and Department of Transport [supra]. The reluctance to communicate and the likelihood that comments would not be sought if material of this nature is released are aspects germane to this consideration. Again it is maintained on behalf of the ACCC that disclosure would not on balance be in the public interest. The comments are communications made in the course of the development and subsequent promulgation of policy within the meaning of Re Howard and Treasurer of Commonwealth of Australia [supra] and disclosure would not be in the public interest. Whilst there is a public interest in scrutiny of the operations of Government it is contented that in the circumstances of the present matter disclosure of the document could result in a reduced willingness on the part of the Commonwealth and the State to enter into frank written communication about matters such as draft legislation and this public interest in not disclosing the document outweighs the public interest in disclosure. As confirmed by Mr Latina the views of the State agency have been taken into account. Indeed the State agency informed the ACCC that disclosure of the document could adversely affect relations between that agency and the ACCC and that further communications between the two agencies could be hampered by concerns about documents such as document one being made public. The ACCC would as above indicated be reluctant to communicate in writing to a State Government its views about aspects of draft legislation. Such an outcome would constitute damage to relations between the Commonwealth and a State. Whilst there may be a public interest in scrutiny of the operations of Government, the ACCC contends that disclosure of document one could reasonably be expected to result in a reduced willingness on the part of the Commonwealth and the State to enter into frank written communication about matters such as draft legislation thereby affecting the proper working of Government and its agency. The public interest in not disclosing this document outweighs the public interest in disclosure.
document two
29. Document two comprises e-mails of 3 September 2002 between officers of the ACCC and an officer of the ORR and an officer of the ACCC. Mr Latina maintains that release of the part of the document, which is claimed to be exempt, would divulge information or matter communicated in confidence. He believes that the inter-agency e-mail was communicated on a confidential basis and was only intended to be viewed by its recipients. It contains discussions about a specific aspect of the wording of the bill. It contains and relates to views expressed by the ACCC and the ORR to each other “not to any other person and was communicated in confidence by the ORR to the ACCC" (Exhibit 1 para 31). Mr Latina believes that disclosure would or could reasonably be expected to cause damage to the relations between the Commonwealth and the State agency. As earlier mentioned it contains discussion about the drafting of particular aspects of the bill and is a communication, which relates to the formulation and implementation of Victorian Government policy. The ORR, he maintains would be reluctant “to communicate confidential material concerning the drafting of legislation to a Commonwealth agency such as the ACCC if such information was likely to be disclosed to sections of the public”.
Further, release of the document would not be in the public interest as it contains a communication between a State Government agency and a Commonwealth Government agency made in the course of development of public policy and its release would prejudice frank consultation by the ORR with the Commonwealth Government as “it would not be in the public interest for the two agencies to not communicate views based on their respective experiences of - in the case of the ORR policy formation and implementation and in the case of the ACCC law enforcement - out of fear that those communications would be disclosed “ (Exhibit 1 para 33).
30. Mr Cassidy maintains that the e-mail from the officer of ORR contains discussion of a drafting proposal in relation to a clause of the bill. This e-mail he says contains information that was likely to have been communicated to the ACCC in confidence by the ORR. “The proposed wording in the e-mail is intended for the eyes of the recipients and not persons outside the ACCC” (Exhibit 2 para 34). He believes that disclosure of the document would or could reasonably be expected to cause damage to the relations between the Commonwealth and a State in that there presently exists a relationship between the Victorian agency and the Commonwealth whereby there can be a communication of proposals to reform the law confident in the knowledge that the contents of communications were not to be disclosed to third parties. If the document is released Mr Cassidy believes that the relationship would or could reasonably be expected to be damaged and there would be a reluctance to share draft amendments to state laws or similar information with the ACCC. With reference to the public interest criteria Mr Cassidy maintains that discussions between the ACCC and the State Government agency about specific law reform proposals should not be at risk of exposure to groups representing sections of the community. In communicating law reform proposals to the ACCC both the State Government and the ACCC are attempting to address issues in the broader public interest and it would not be in such public interest for communications to occur in a climate where disclosure of them may reveal as yet incomplete or draft proposals to reform the law (Exhibit 2 paragraph 36).
31. With reference to the other e-mail, that is the e-mail between officers of the ACCC Mr Cassidy maintains that disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of the ACCC. There would, he maintains, be a “stifling of written communications between senior ACCC staff about issues such as proposed amendments to legislation” (Exhibit 2 para 37). “At the heart of the operations of the ACCC is a process of staff communication by e-mail to each other interpretations of the law. In relation to this document the views are about proposed legislation, which closely resemble section 51AC of the Trade Practices Act”. The officers are senior members of ACCC staff “with extensive experience in the application and enforcement of this provision”. If there be disclosure there would be “reluctance on the part of ACCC staff to express candid views to each other about such issues if they risk that such communication would be disclosed”. There would be a substantial adverse effect on the operations of the ACCC “which depends upon the ability of staff members to candidly express their views about such issues to each other and not to work with an underlying risk that those communications will be communicated to sections of the public” (Exhibit 2 paragraph 37).
32. Release of the document would, it is said, disclose a matter in the nature of or relating to opinion or advice recorded or consultation or deliberation that has taken place in the course of and for the purposes of the deliberative processes involved in the functions of the ACCC. The broad functions of the agency in relation to education about laws affecting consumers, the rights and obligations of persons and the enforcement of the Trade Practices Act necessarily, so Mr Cassidy maintains, brings the ACCC into contact with State Government agencies and external persons. During such communications staff regularly record their opinions or advice to each other in the course of the deliberative process. The communications in this instance relate to consultation with the Victorian agency about the “draw down” of section 51AC. Advice is sought relating to proposed wording of an aspect of the bill and preliminary thoughts are provided about an aspect of the bill. There is an analysis and synthesising of information obtained from the State agency, an opinion is presented and an interpretation of the law is provided to another senior staff member. Mr Cassidy maintains that “there is a strong public interest in ACCC staff being able to continue to communicate which each other in a frank manner in relation to consumer protection, fair business conduct and competitive, efficient and informed Australian markets”.. He believes that “it would be contrary to the public interest if the ACCC were required to change its operations in developing a culture of risk adversity in such communications” (ref Exhibit 2 paragraph 40).
33. Mr Latina with reference to the inter-agency e-mail maintains that the information was communicated in confidence by or on behalf of the ORR. It was only intended to be viewed by its recipients. It contains discussion about a specific aspect of the wording of the bill “contained and related to views expressed by the ACCC and the ORR to each other not to any other person and was communicated in confidence by the ORR to the ACCC” (Exhibit 1 paragraph 31).
34. Disclosure of the document would, according to Mr Latina, or could reasonably be expected to cause damage to the inter-agency relationship. It contains discussions about the drafting of particular aspects of the bill and is a communication, which relates to the formulation and implementation of Victorian Government policy. The ORR he maintains would be reluctant to communicate confidential material concerning the drafting of legislation to a Commonwealth agency such as the ACCC if such information was likely to be disclosed to sections of the public. Disclosure would cause damage to relations between the Commonwealth and the State, restricting the amount of information, which an agency would be prepared to provide. He further maintains that release would not be in the public interest as document two “contains a communication between a State Government agency and Commonwealth Government agency made in the course of development of public policy and its release would prejudice frank consultation by the ORR with the Commonwealth Government” (Exhibit 1 paragraph 33).
35. In his oral evidence Mr Cassidy emphasised the confidential basis upon which the e-mail was based “given the particular draft clause was still in the development stage and was not in any way public” (Transcript page 38). There was a request for comment on a specific clause. The Victorian agency had not made a decision as to whether it would proceed with the clause in one form or another. The reaction of the ACCC was being sought. With reference to the internal e-mails Mr Cassidy emphasised that “they are part in our deliberative processes within the Commission and I think to publicly release this e-mail or similar e-mail would significantly impair our ability particular our ability as a national organisation to be able to communicate internally on issues” (Transcript p 40). The relevant process was one being undertaken in the course of the Commission forming a view which was to be conveyed to Victoria in relation to this particular clause. It was part of the process of discussion and consultation going on between two Commission officers as to what should be said on behalf of the Commission to the Victorian agency (Transcript p40). If the e-mails were to be made public, Mr Cassidy on behalf of the ACCC and as its Chief Executive Officer said that he would have to think seriously about “what information we committed to e-mails and what information…we have to try to convey to one another orally. That would significantly impair the efficiency of our operations if we have to start operating on that sort of basis” (Transcript p40). There is, he maintained a broad public interest in the ACCC being able to operate efficiently including internal deliberations. The views of the officers were “very much views that are part of, and early part of, a deliberative process within the commission and to have that sort of material made public … would necessarily mean that we would need to start being fairly careful about putting that sort of material into internal e-mails” (Transcript p126). Further “because they are senior officers, release of this sort of exchange may well be more likely to lead the public to believe that what is said here are either views of the Commission or are…concluded views of some status. Whereas in reality what they are is an early exchange in the process of … reaching a concluded view” (Transcript p126). In support of its contention that disclosure would or could reasonably be expected to cause damage to the relevant relations and that disclosure would not on balance be in the public interest, it is maintained on behalf of the ACCC that the document containing a draft clause for the bill is information communicated which if disclosed, would hamper future communications. The draft clause was a proposed revised wording, which the ACCC understood would not be publicly available. Further, the draft clause was communicated in confidence. If so released, the Victorian agency and the Government of the State of Victoria would be reluctant it is said, to in the future communicate draft legislation to the ACCC.
36. The document exhibits the thinking processes of ACCC staff and is preparatory to a final view being taken about the issues addressed in it. It is part of a consultation or deliberation process and is a pre-decisional communication (see Re Waterford and Department of Treasury [supra] at 606-607; Re Howard [supra] at 633).
37. The public interest it is said requires that staff be able to synthesise and analyse information without opinions expressed and opinions canvassed being the subject of public scrutiny. If the document be released, ACCC staff would be reluctant to enter into written communications with each other about such matters as contained in the document because of a concern that such documents will be made public thereby inhibiting frankness and candour in future pre-decisional communications. On behalf of ACCC it is maintained that such an outcome “for an agency which enforces legislation of the nature discussed in the communication, which has been enacted in the public interest is not in the public interest”.
38. It is further maintained that within the meaning of section 40(1)(d), disclosure of the documents would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the ACCC. The document is an internal communication and disclosure would have, it is maintained, a serious adverse effect on the proper and efficient conduct of the ACCC’s operations. Effective and confidential communications are integral it is maintained, to the agencies operations. A future unwillingness to enter into such communications would have a serious adverse impact upon the agencies operations. The internal communication contains an attempt to understand "the implications of certain law reforms in the context of the relevant officers experiences”. As briefly put in its submissions the ACCC contends that “although there may be a public interest in knowing the views of a law enforcement agency about law reform proposals, this internal communication contains an attempt to understand the implications of certain law reforms in the context of the relevant officers’ experiences of enforcing section 51AC for the purposes of providing a final view to the ORR. It was not meant to be used as a vehicle for public debate with State Governments about the “draw down” of section 51AC into State legislation or similar proposals. Because of the possible future unwillingness of staff to enter into full and frank internal written communications if this document released, a future risk which may be exacerbated by the use to which the documents are put, the release of this document under the FOI Act would not be in the public interest”.
document three
39. Document three comprises part of an e-mail of 4 September 2002 including material contained in document two. Mr Latina inter alia relies upon the reasons expressed in relation to document two. This is with respect to damage that would be caused to relations and release not being in the public interest.
40. Mr Cassidy likewise contends that his views in relation to document three are the same as those expressed in relation to document two. He maintains that an important aspect of the internal processes of one agency or department has been communicated to ACCC staff which indicates a confidence on the part of the State agency that ACCC staff would not disclose this information to persons outside the ACCC. “The fact that such information is communicated to ACCC staff is an important part of a Commonwealth/State relationship and contributes to the efficiency of consultations and liaison activities. If this document were to be disclosed I consider that the future willingness of either agency to communicate information about internal processes … would be reduced” (Exhibit 2 para 45). With reference to the e-mail identifying a particular clause that was the subject of consideration, Mr Cassidy in his oral evidence stated that “if we reveal that a particular clause of laws was subject of some discussion between the ACCC and the Victorian Government agency that may well then lead, at least particular groups that have an interest in the legislation, to focus rather much on that clause, start asking themselves why is it that that particular clause as opposed to other perhaps clauses in the legislation was subject to discussion between the ACCC and the Victorian agencies and it leads to speculation as to what the subject of those discussions might have been” (Transcript p92).
41. As earlier indicated the position maintained on behalf of the ACCC in relation to document three is substantially the same as that maintained in relation to document two.
document four
42. This document comprises an e-mail of 5 September 2002 between officers of the ACCC and includes the e-mail dated 4 September 2002 from an officer of the ACCC to an officer ORR.
43. As Mr Latina notes, the parts of the document that include documents two and three have previously been considered. He maintains that disclosure of part of the document that contains the e-mail between the ACCC and an officer of the ORR would cause damage to relations between the Commonwealth and the State. It contains a senior ACCC officer’s observation on aspects of the bill and such comments from a Commonwealth agency “with experience in the areas of retail tenancies and the law of unconscionable conduct are of great benefit to a State agency such as the ORR. The observations provided the ORR with reasons to further consider certain aspects of the bill. If this part of the document were to be released it would mean that the possibility of future consultation between a State agency and a Commonwealth agency would be against a background of possible or likely disclosure of that document to sections of the public. I consider that this would be likely to diminish the frankness of written communications…This would likely be to limit the effectiveness of communication between the entities and thereby cause damage to relations between the Commonwealth and a State” (Exhibit 1 para 40). He further maintains that disclosure would not be in the public interest. There would be likely confusion and debate about proposals or views which were not in fact adopted by the Victorian Government and further the release would mean that the ORR could not guarantee to a Commonwealth agency that its comments on proposed legislation would be kept confidential. The ORR would have a like concern. There would thus be a limit on the level and nature of information contained in communications about policy or draft legislation.. “In the realm of policy development and discussion about law reform such a diminution in the frankness of communications would not be in the public interest. It would be detrimental to the operation of the ORR. Such an outcome would stifle communication to the detriment of the ORR’s operation and this would not be in the public interest. The public interest lies in the efficient and effective exchange of information between the Commonwealth and a State without fear that consultations, both formal and informal, would be communicated to sections of the public who may simply be interested in seeing what those agencies said to each other” (Exhibit 1 paragraph 43).
44. In his oral evidence Mr Latina emphasised his concern in that the comments were preliminary comments not those on a final bill. The ORR sought specialist advice consequent upon the expertise of the ACCC. It sought frank discussions, the ability to “fly ideas” and to see “what the reaction was”. It would be disadvantageous for the communications to be released.
45. Generally the position taken by the ACCC with reference to document four are in line with the position taken referable to the earlier documents.
document five
46. This document comprises three copies of the exposure draft with comments and notations upon it and particular pages of the exposure draft with annotations.
47. Mr Cassidy maintains that if the documents be disclosed they would “disclose matter in the nature of, or relating opinions prepared or recorded, or deliberation that has taken place, in the course of, or for the purposes of, deliberative processes of the ACCC. These documents disclose the thinking processes of ACCC staff in the process of formulating or commenting upon on a draft of the comments to be provided to the ORR … I also consider the annotations on these drafts to be part of the deliberative or thinking process of staff members” (Exhibit 2 paragraph 52). If the draft documents be released he maintains, they would or could reasonably be expected to cause damage to relations between the Commonwealth and a State. Disclosure of the draft documents would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the ACCC. “It is essential that ACCC staff consider themselves able to prepare draft documents, including draft documents with annotations without risk that those documents will be disclosed to sections of the public. If these documents were disclosed it would lead to a stifling of the sort of views and ideas ACCC staff would be willing to express in draft written communications. Such an outcome would also increase the amount of time required to produce a submission such as that provided to the ORR by ACCC staff” (Exhibit 2 paragraph 54).
48. The release of the documents would not, Mr Cassidy maintains be in the public interest and would be contrary to such interest. The documents are drafts, many of the views expressed and comments contained in annotations may have been “superseded by comments actually communicated to the ORR by the ACCC”. Disclosure could risk inaccurately reflecting the ACCC’s position “and in so doing confuse the public as they are not necessarily representative of the response actually provided by the ACCC to the Government to the State of Victoria. It is also important that the staff feel able to express views in draft documents with frankness and candour” (Exhibit 2 paragraph 56).
49. As Mr Cassidy put it in his oral evidence the documents are “very much internal working documents of the Commission” (Transcript p45). The “documents and the annotations on them are part of the Commission’s deliberative process. That is to say, the part of the process of Commission staff reaching a view on what comments ought to be provided to the Victorian Government Agency. So they’re very much part of our deliberative decision making processes…within the Commission and I think to have documents of this nature made public would significantly impair the efficient operation of the Commission” (Transcript page 45). Disclosure of the internal Commission working drafts “would significantly impair the efficiency of the Commission’s operations and therefore would be significantly contrary to the broader public interest”. Further, Mr Cassidy said “to be quite candid if these particular documents were disclosed I would feel obliged to instruct the staff of the Commission that in future they should have in mind any internal documents…of the Commission could become public documents and therefore they should think fairly carefully about what matters were committed to paper internal e-mails and what matters were dealt with through oral communication within the Commission” (Transcript p46).
50. To the extent that document five contains the views of the ACCC which were eventually provided to the ORR, the matters relied upon by the ACCC are as expressed for document one. Thus it is maintained that the document reflects the deliberative processes of ACCC and is preparatory to a final view being taken about the issues addressed in the document. It would be contrary to the public interest for this document to be disclosed. There is a need for staff to be able to analyse information without opinions expressed and options canvassed being the subject of public scrutiny. The ACCC also relies upon the matters raised in respect to document two. Further, disclosure of the document would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the ACCC. It was further maintained that disclosure of the draft working documents would cause confusion or misunderstanding because of the provisional nature of the document and would inhibit the making or retention of such notes in the future. This contention is relevant to the public interest position. There would likewise be a serious adverse effect on the proper and efficient conduct of the ACCC operations. The ability of staff to reflect in writing on matters related to provisions of the Trade Practices Act, confident in the knowledge that such communications were not be disclosed “are integral to the agencies operations”. A future unwillingness to make such notes it is maintained because of a risk of disclosure of such documents under the FOI Act would have a serious adverse impact on the agencies operations.
document six
51. This document comprises e-mails between officers of the ACCC. Mr Cassidy notes that the first of the e-mails is a reply to the second. The second e-mail relates to a telephone conversation between the officers referring to the approach the ACCC had taken in commenting on the bill and in particular the attitude of the ACCC to the policy of “drawing down” section 51AC into the bill. The first e-mail discusses the “draw down” of section 51AC and a question that the officer has about this issue.
52. Mr Cassidy maintains that the disclosure of the e-mails would have a substantial adverse effect on the proper and efficient conduct of the operations of the ACCC. The documents he says disclose views about the bill, one view that was by that stage communicated to the ORR and another view yet to be communicated. If the document be released, he considers that staff would be reluctant to commit these views to writing in the future and this would result in an inefficient state of affairs where staff would be unable to consider and reflect upon the written views of other staff. This would increase the amount of time taken to formulate views on issues such as the draft bill and possibly introduce a level of confusion amongst staff as to what the views of other staff are. It would also lead he says to a reduction in the quality of work produced by staff of the ACCC (Exhibit 2 paragraph 60).
53. The release of the document would, it is maintained, or could reasonably be expected to cause damage to relations between the Commonwealth and a State. The reasons for this are those expressed in relation to documents one and four. Mr Cassidy further maintains that release of the documents would not be in the public interest as the views expressed in the e-mails were intended to be communicated internally and to the ORR and not to sections of the public. The views in the e-mails he said represent an attempt to address an issue, which affects both landlords and tenants, and as such “address issues in the broader public interest”. It would not be in the public interest for staff of the ACCC to consider that such written views could be disclosed to sections of the public simply because those sections of the public are interested in seeing them (Exhibit 2 paragraph 62).
54. The e-mails are regarded by Mr Cassidy as being part of the Commissions internal deliberative processes. “They were an exchange of views between two officers of the Commission. Neither of these views would have been intended by the officers to become public and I think for this sort of e-mail to be made public would significantly impair the efficiency of the Commissions operations and would therefore be contrary to the broader public interest in having the Commission operate as sufficiently as possible” (Transcript p47). If the document be disclosed he said “I would…require staff of the Commission to each to think fairly carefully to would to put in e-mails and other written communications within the Commission against the possibility that those sorts of communications could find there way into the public arena.” “We have” he said “a philosophy and an approach within the ACCC which encourages people at all levels to be frank and candid and put in their views on issues and a lot of that of course is reflected in our internal communications. I suppose one product of that is…we may…have more internal communications which we may say fall under the general heading of debate, exchange of views…if it was the case that the sorts of internal communications including the ones we have here in document six were to be able to be made public, then that would have a very much of a dampening effect on that internal process that we have of an open, free, frank exchange of views in the cause of the Commission or senior officers of the Commission reaching a view on a particular issue” (Transcript p117). Further “the communication makes clear that these are preliminary thoughts, they are preliminary actions and as that I don’t consider them to be concluded views of either of the officers involved and therefore they are not views that I would have made public” (Transcript p118). The Respondent maintains arguments similar to those raised referrable to documents one and two in relation to document six.
generally
55. In a general sense Mr Cassidy contends that “there is an interest in officers of the Commission expressing publicly their concluded views on all sorts of matters including draft legislation…these are not concluded views. These are views or thoughts that are being exchanged between officers in the process of reaching a concluded view…part of the deliberative processes of the Commission…” (Transcript p55). He further said that the officers of the ACCC were making “comments on the Victorian legislation or draft legislation on the basis of our experience in administering the Trade Practices Act” (Transcript p109). Further “it is not in my view in the public interest to have comments provided by us to a Victorian Government agency, which quite within the rights of the agency and indeed the Victorian Government may or may not have taken into account in enacting the final legislation to be made public” (Transcript p110).
56. With reference to the position taken by the ACCC Mr Cassidy said that the Commission “administers particularly in relation to Trade Practises Act various provisions which are either duplicated or duplicated with modification in the State Legislation and it is very important to the efficient administration of the law between the ACCC and the States that we be able to communicate in open, frank sort of way about our respective pieces of legislation. My view is that if these sort of comments that we have conveyed to Victoria would be made public, than it certainly would damage the relationship between the ACCC and the Victorian agencies and make future such communication and discussion of legal issues in which we have mutual interest and mutual responsibilities very difficult” (Transcript p130).
57. Summarising his position from the Victorian point of view, Mr Latina said, “the Victorian Government sought advice from a range of agencies and also a range of stakeholders. It was a very public review, but certainly, the consultations that we undertook from the ACCC were very specialist in nature in terms that we were asking for their independent, unbiased, technical advice, given their experience with the operation of the Trade Practices Act. Their advice was an important factor into our considerations of the final framework of the unconscionable conduct provisions that were in the bill. It was quite frank advice that they provided to us. It was important advice. It was quite frank and fearless and certainly, our view and my department’s view is that if that advice is released that it would not be in the public interest, we don’t think, to see those preliminary developments in the development of that legislation. Certainly if it was released, it would harm, in my view, Commonwealth/State relations in the sense that we would be reluctant in future reviews, to seek out such technical advice” (Transcript page 139). “It’s an important relationship to have and it’s a valuable relationship to have for the State Government to be able to seek that expert opinion from the relevant Commonwealth agency to get that advice…I don’t see as to what the public interest is being served by releasing that views. Certainly I think if those were released than I think it would compromise relations into the future” (Transcript 147).
the Applicant’s contentions and decision
As to section 33A (1) (a)
58. It is maintained on behalf of the Applicant that there are no “real grounds” for a fear that disclosure of the relevant documents might reasonably be expected to damage relations between the Commonwealth and a State. Even assuming that it can be shown that disclosure will cause such damage, it is said that never the less it is in the public interest that the material be disclosed. It is in the public interest that the concerns relating to retail tenancies be known to and addressed by landlords. It is in the public interest for the views of the ACCC and those with in it on the interpretation and application of legislation that has been adopted from the Trade Practices Act but altered to be known.
59. It is further maintained on behalf of the Applicant that what is necessary for the exemption in section 33A (1) (a) to apply is that there be a reasonable expectation of damage to relations between the Commonwealth and a State if disclosure of a document were to occur. What is reasonable however is a question to be decided having regard to the circumstances of the case. There must be real and substantial grounds for the expectation.
60. I am satisfied in the circumstances of this matter that the contention made on behalf of the ACCC should be sustained. Evidence has been given by the Chief Executive Officer of the ACCC and the acting Director of the Victorian agency that there is on their part expectation of damage to relations between the Commonwealth and the State agency. The antecedents of these two officers are to be recognised. They speak from their experience. They speak of communications passing between their agencies and the value of the information contained in the communications to each of them. They both say that in the event of the material being released that there would be a reticence at least in further communications of a deliberative nature. The Tribunal is satisfied that the position taken by Mr Cassidy and Mr Latina is such as to establish that the apprehension or expectation of damage to relations is one that is reasonable in the circumstances of this case.
Section 33A (1) (b)
61. A document is relevantly an exempt document if disclosure would divulge information, communicated in confidence by or on behalf of a State to the Commonwealth or an authority of the Commonwealth. The sub-section does not exempt from disclosure a document containing information communicated by the Commonwealth or an authority of the Commonwealth to a State. On behalf of the Applicant it is maintained that whether information is communicated in confidence is not determined by an indication in a document that the document may contain confidential information but all the circumstances must be considered. I am in agreement with this submission. However, it is clear from the evidence given both by Mr Cassidy and Mr Latina that the parties were communicating the one with the other in the expectation that what was being said would not be made available to third parties. It was communicated in the context of the Victorian agency drafting a Retail Tenancy Bill. This with the aid of the experience obtained by the ACCC. There was communication of information by the Victorian agency to the ACCC. In so far as the communication of this information was by a State to the Commonwealth I am of the opinion that the position maintained by the ACCC should be sustained. It was said on behalf of the Applicant that it may “be accepted that the communication of draft clauses would divulge information communicated in confidence” but that “it can not be reasonably suggested that comments on proposed or draft legislation are necessarily communicated in confidence”. I do not agree with this submission. Whilst concurring with the submission that the mere notation on a document that it “may contain” confidential information does not assist overly in arriving at a decision as to confidentiality, I am satisfied that where there is an interchange between officers of authorities of views and opinions derived from working experience, this in aid of arriving at an appropriate wording for legislation, that there are expectations of the sender and the receiver that the material so communicated will be in confidence. I am further satisfied that cooperation between State and Commonwealth Governments would be harmed if they are not able to have a free exchange of views and experience.
Section 33A (5)
62. The public interest argument is centred around a balancing exercise. All the relevant circumstances must be taken into account (Arnold v Queensland [supra] at 205). As was stated in Re Howard and Treasurer of Commonwealth of Australia [supra] at 635 “disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest”. It is true that the whole of the circumstances must be examined including any public benefit perceived in the disclosure of the document sought. Little public benefit is perceived in disclosure of the documents sought. There is a greater public benefit in the documents not being disclosed. This is because of the benefit that accrues to the public at large if there be a free exchange of opinions and of experience between relevant Government agencies. The legislation that results from such an interchange should be the better for officers being able to present their experience without concern as to that experience being made publicly available. This finding as to the public interest is applicable to each of the documents where the public interest argument would be available.
Section 36(1) (a) (b)
63. I am quite satisfied that the activities of the ACCC in communicating with the Victorian agency, providing assistance, advice and the benefit of its expertise to that agency in the drafting of the legislation was an activity probably assumed by the ACCC. I am further satisfied that the opinion, advice and recommendation obtained from the ACCC and made available to the ORR whilst in aid of the drafting of the Victorian legislation was incidental to a function of the ACCC and was part of the deliberative process involved in its function. The ACCC was playing a part in ensuring that the legislation introduced in Victoria was such as to enhance the welfare of Australians, be they particularly Victorians, through the promotion of competition and fair trading and provision for consumer protection as consistent with section 2 of the Trade Practices Act 1974. Contrary to what was submitted on behalf of the Applicant, I am satisfied that the information sought and provided did relate to ACCC pre-decisional working out of a policy appropriate for the Victorian legislation. As was stated in Re Waterford and Department of Treasury [supra] at 606 the deliberative processes involved in the functions of an agency are “it’s thinking processes”. Where a document discloses matter in the nature of or relating to deliberative processes section 36 (1) (a) “come into play”. It is apparent from an examination of the documents tendered in confidence in respect of which exemption is claimed that the matter the subject of dispute does entail matter in the nature of or relating to the deliberative process, the thinking process of officers both of the ACCC and the ORR. Further, the deliberative process relates to the functions of the ACCC. The ACCC by reason of the provisions of the Trade Practices Act has a statutory responsibility as earlier indicated and clearly incidental to such statutory responsibility is an obligation to ensure as best it can that legislation throughout the Commonwealth, be it State or Federal, is consistent with the objects of the Act. This it sought to do. The role assumed by the ACCC as maintained by Mr Cassidy and which I accept has earlier been set forth in these reasons.
64. It is noted in passing that on behalf of the Applicant it was submitted that the decision of the Tribunal in Wallace v Director of Public Prosecutions [2003} AATA 119 should not be followed to the extent that it is there maintained, as a general proposition that where disclosure of a working document would tend to cause confusion and misunderstanding because of the provisional nature of the document or would inhibit a retention of such notes future disclosure would not be in the public interest. But this is not the situation in the present application. It is not here that the disclosure would “cause confusion or misunderstanding”.. It is that disclosure would be that of tentative views expressed by officers in the deliberative process. Those views were not the views of either agency and may well not be views held by those officers on further consideration. It is fair however to say that confusion or misunderstanding per se would not be sufficient to prevent disclosure. It is as to the deliberative nature of the communications that the exemption relates. I am satisfied that the deliberative process as seen in the relevant documents did relate to the function of the ACCC.
As to section 40(1) (d)
65. It is said on behalf of the Applicant that disclosure of views held within the ACCC in relation to Victorian legislation cannot reasonably be expected to have a substantial adverse effect on the proper and efficient operations of the ACCC. It is not so much the disclosure of views in relation to Victorian legislation that is being considered in this matter but rather the disclosure of views in relation to a particular provision that was being considered for insertion in the legislation and the experience obtained by the ACCC in relation to the administration of a comparable provision. The views so expressed by officers of the ACCC were in aid of reaching an appropriate formulation of a clause. They were a reflection of experience be it tentatively held. I am satisfied that the evidence given by Mr Cassidy as to a consequence of release of such material would result in the damage claimed and have a substantial adverse effect on the proper and efficient conduct of the operations of the agency. It is not here an interpretation of the law as maintained on behalf of the Applicant that is relevant, but the passing on of experience gained in the application of the Trade Practices Act and thus the drafting of provisions that would aid in implementing the policy of the legislation.
66. The public interest requirement in section 40(2) has already been discussed with reference to section 33A(5). Similar arguments would here apply.
67. I am satisfied that in exercise of the balancing process it is not in the public interest for the relevant documents to be disclosed.
generally
68. The Tribunal is satisfied that it is not in the public interest for the various matters contained in the documents the subject of this application to be disclosed. The Tribunal does not accept that the evidence given by Mr Cassidy and Mr Latina as to the effect on Commonwealth relations are merely assertions or that the evidence as to a diminution of frankness in communication between Commonwealth and State ensuing should be rejected. The Tribunal is satisfied on the evidence that the concerns expressed are genuine and likely to occur in the event of disclosure. That is the effect on officers of the ACCC of concern that tentative views if reduced to writing may be disclosed is a real concern genuinely maintained. The Tribunal is not satisfied that in the circumstances of this matter disclosure of the various communications would not detract from the quality of decision making. It is satisfied that the nature of the material in respect of which exemption is claimed is such or would be such as to hinder if not prevent deliberations referable to decision-making having the benefit of considered opinion. The Tribunal is satisfied that the disclosure of such documents where relevant would have a serious adverse affect on the proper and efficient operations of ACCC.
decision
69. I have earlier indicated in these reasons the opinion that I hold in relation to the application of the various sections of the Freedom of Information Act to the matters the subject for consideration in this application. The position taken by the ACCC as to the various documents subject to what appears below is affirmed. The matters detailed below which may be released do not fall within the matters discussed in these reasons and do not attract the various statutory provisions. The portions of the various documents which may be released as not falling within the statutory provisions discussed in these reasons are as follows:
Document 2
Page 2
“Andrew and Nigel
…
Your comment would be greatly appreciated.
Andrew - I have guessed Nigel’s e-mail address, so if I didn’t write it properly, please pass on.
Thank you and regards
Melissa
…”Page 3
“Lee
…
Would appreciate any comments you might have on this.
Nigel
…
Andrew and Nigel
…
Your comments would be greatly appreciated
Andrew - I have guessed Nigel’s e-mail address so if I didn’t write it properly, please pass on.
Thank you and regards
Melissa
…”
Document 3
“Andrew and Nigel
…
Your comments would be greatly appreciated.
Andrew - I have guessed Nigel’s e-mail address so if I didn’t write it properly, please pass on.
Thank you and regards
Melissa
…”
Document 4
Page 1
“Hi Melissa
Apologies for the delay. I sought comment from a colleague as I indicated that I would but unfortunately have not received a response.
…
I hope these comments are of some assistance and once again apologise for the delay.
Kind regards
Nigel”
Page 2
“Andrew and Nigel
…
Your comments would be greatly appreciated.
Andrew - I have guessed Nigel’s e-mail address, so if I didn’t write it properly, please pass on.
Thank you and regards
Melissa”
Document 6
“Andrew
…
I am happy to contact Ms Atallah on this. Maybe you and I should call her together tomorrow.
Nigel
…
I just spoke with Melissa Atallah re: our comments on the paper.
She received them and thanked us for our input.
…”
Accordingly the decision under review is affirmed subject to the matters that may be released as indicated above in documents 2, 3, 4 and 6.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed: Neil Glaser
AssociateDate/s of Hearing 18 November 2003, 5 and 10 December 2003
Date of Decision 9 February 2004
Counsel for the Applicant S J McMillan
Solicitor for the Applicant D Appelby
Counsel for the Respondent J Chisholm
Solicitor for the Respondent E O'Callaghan
2
4
0