Telstra Corporation Limited and Department of Broadband, Communications and the Digital Economy
[2007] AATA 2100
•21 December 2007
CATCHWORDS – PRACTICE AND PROCEDURE – confidentiality orders – interaction between s 35 AAT Act and ss 53 and 64 FOI Act – access to material of kind claimed to be exempt documents- principles governing exercise of power to exclude public, party and legal representatives – confidentiality order granted.
Administrative Appeals Tribunal Act 1975 ss 25(1), 25(4), 25(6), 25(6)(a), 35, 35(1), 35(1A), 35(1AA), 35(2), 35(2)(b) and (c), 35(3), 35A, 37, 37(1), 37(1)(a), 37(1)(b), 39, 43(2) and 43(2B)
Customs Tariff Act 1995
Freedom of Information Act 1982 ss 3(1)(a) and (b), 4(1), 7, 11(1), 33, 33(1), 33A, 34, 34(6), 35, 36, 36(1), 38, 41, 42, 43, 45, 54, 55, 58(4), 58(5), 58(5A), 63, 63(1), 63(1)(a), 63(2), 63(2)(a), 64, 64(1), 64(1A), 64(2), 64(3) and 64(4)
Trade Practices Act 1974 s 152CH
Air International Pty Ltd v Chief Executive Officer of Customs (2002) 121 FCR 149
Australian Broadcasting Commission v Parish (1980) 43 FLR 129; 29 ALR 228
Buck v Bavone (1976) 135 CLR 110
Bunnings Group Ltd v Laminex Group Ltd (2006) 153 FCR 479; 230 ALR 269
Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 220 ALR 248
Kelson v Forward (1995) 60 FCR 39; 39 ALD 303
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Dunn and Department of Defence (2004) 84 ALD 419
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 2 ALD 33; 36 FLR 482
Re Specifix Fasteners Pty Ltd and Secretary, Department of Industry Tourism and Resources and Specifix Holdings Pty Ltd (party joined) [2007] AATA 1247
Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495; 9 ALR 103
Schiffer v Pattison [2001] FCA 1094
Scott v Scott [1911-13] All ER 1
Smith v Harris
The Commonwealth v Northern Land Council (1993) 176 CLR 604; 112 ALR 409
DECISION AND REASONS FOR DECISION [2007] AATA 2100
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/0619, 2007/2208-2209
GENERAL ADMINISTRATIVE DIVISION )
Re TELSTRA CORPORATION LIMITED
Applicant
AndDEPARTMENT OF BROADBAND, COMMUNICATIONS AND THE DIGITAL ECONOMY
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 21 December 2007
Place: Melbourne
Decision:The Tribunal orders:
1.access to those parts of the consolidated documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 and described as:
(1)T12 (page 73) – all of the fourth paragraph;
(2)T14 (pages 102-106) – the whole document;
(3)T17 (pages 111-115) – all of the two dot points in the third paragraph on pages 111-112 and the whole of pages 114 and 115;
(4)T18 (pages 116-118) – all of the dot point in the third paragraph on page 116 and the whole of page 118;
(5)T19 (pages 119-121) – all of the dot point in the third paragraph on page 119 and the whole of page 121;
(6)T31 (pages 178-183) – on page 179, in the paragraph beginning ‘The ACCC’s report was requested’, all the words after ‘Senior Minister’s decision’ and before ‘The decision was minuted as follows:’ and before the next paragraph commencing ‘According to the first paragraph of the Minute to the Minister’; and
(7)T32 (page 184) – on the first page, in the fourth dash point, all of the second sentence.
2.be restricted to:
(1)the member or members of the Tribunal constituted for the purpose of any proceeding in relation to this matter;
(2)staff of the Tribunal in the course of performing duties as a member of staff; and
(3)officers of the respondent, the respondent’s legal representatives and those persons whom the respondent involves in the preparation and conduct of proceedings on its behalf.
S A FORGIE
Deputy President
REASONS FOR DECISION
Under the Freedom of Information Act 1982 (FOI Act), Telstra Corporation Limited (Telstra) requested access to various documents in three separate requests. The then Department of Communications Information Technology and the Arts (Department) made a decision on each of them and refused access to, in all, six documents. When the Department effectively affirmed its initial decisions, Telstra lodged an application for review of each of the Department’s three decisions. In response to its obligation under s 37(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Department lodged in the Tribunal three bundles of documents; one relating to each decision (T documents). It has since consolidated the three bundles and my numbering refers to the consolidation. The T documents in relation to the proceedings included seven documents over which the Department has asked for confidentiality orders. Relying on ss 35(2)(b) and (c) of the AAT Act, the Department asked the Tribunal to give directions prohibiting or restricting disclosure of all or parts of those documents. Apart from one, T12, Telstra opposed the order and I have made an order under s 35(2). in relation to that. In relation to the other six documents, I have decided that an order should be made restricting access to those parts revealing material of the type referred to in the documents claimed to be exempt. It will not be available to either Telstra or its legal representatives.
BACKGROUND
For the purposes of this application only, I will set out the background to the applications as I understand it to be from the T documents. Documents lodged or evidence given at some later stage may alter or add to my understanding.
Background to Telstra’s request for access
The unconditional local loop (ULL) is part of Telstra’s ubiquitous fixed line customer access network. The ULL service (ULLS) is a declared service under Part XIC of the Trade Practices Act 1974 (TPC Act) and so is subject to access obligations under that legislation. During 2005, Telstra asked the Government for a Ministerial Pricing Determination under s 152CH of the TPC Act. Telstra was concerned about its continuing ability to implement line rental price parity in circumstances where the Australian Competition and Consumer Commission (ACCC) had been requiring de-averaged ULLS access charges and not allowing it to access deficit charge. At that time, line rental price parity had not been mandated under the price capping arrangements. A Ministerial Pricing Determination would result in the ACCC’s having to use an averaged basis for making pricing decisions in relation to the ULLS. [1]
[1] T documents, 189 at [16]
A group of Ministers considered the issues raised by Telstra. The group comprised the then Prime Minister, the Deputy Prime Minister, the Treasurer and the Minister for Finance and Administration. It was referred to as a group of “Senior Ministers”. The Senior Ministers met on 19 November 2005 to consider retail price parity. They resolved to require the ACCC to report to Government on a number of issues relating to it.
On 19 December 2005, the Minister for Communications, Information Technology and the Arts (Minister) issued a media release revealing the Senior Minister’s decisions. The Minister stated that the Government had decided to mandate line rental price parity through the price capping arrangements. It had decided to seek advice from the ACCC about issues relating to the ULLS pricing and retail price parity.
The Minister wrote to Mr Graeme Samuel, the Chairman of the ACCC. She did so on 19 December 2005. The ACCC first sent a draft of its report to the Department. This draft report is said to be in substantively the same terms as the final report sent on 31 March 2005 to the Minister and the Department under cover of a letter. Subsequently, the report was circulated to the Senior Ministers.
Application 2007/619
Telstra requested access to:
“… the press release of the Minister for Communications, Information Technology and the Arts dated 19 December 2006 (attached) (‘the press release’).
The press release refers to a number of requests which would be made to the Australian Competition and Consumer Commission (‘Commission’) [ACCC] including:
(a)a request for information in relation to the impact of the Government’s decision ‘to make explicit Telstra’s retail price parity obligations’ on the Commission’s wholesale ULLS pricing decisions;
(b)a request to report on whether the Commission’s a ‘current approach to ULL pricing sufficiently takes into account Telstra’s capacity to maintain average retail prices consistent with the Government’s policy on retail pricing parity’;
(c)a request that the Commission ensures that ‘its ULL pricing decisions enable the maintenance of retail pricing parity while not placing an unreasonable burden on any industry player’; and
(d)a request for the Commission to advise of ‘any adverse impact on Telstra’s ability to deliver on the Government’s commitment to retail price parity for Australians and to come put with strategies to address any problems identified.’;
…”[2]
[2] T documents, 107
The Department identified three documents meeting Telstra’s request:
1.Australian Competition and Consumer Commission – Report to the Government on ULLS Pricing and Retail Price Parity – March 2006 (Report);
2.Status Report on Issues Relating to the ACCC’s Report to Government on ULLS Pricing and Retail Price Parity (Draft Report); and
3.letter from Mr Graeme Samuel to the Minister for Communications, Information Technology and the Arts (Minister) dated 31 March 2006.
The Department decided that the Report and the Draft Report were partially exempt under ss 36 and 43 and that the Report is partially exempt under s 34 of the FOI Act.[3]
[3] T documents, 230
Application 2007/2208
Telstra requested access to two documents:
1.a PowerPoint presentation made by the ACCC to an inter-departmental committee (IDC) entitled “Regulation of Telstra’s Unconditional Local Loop Service” (ACCC presentation); and
2.a letter dated 22 December 2005 and written by the Minister to Mr Samuel of the ACCC requesting a report on matters identified by a resolution of the Senior Ministers.
The Department decided on internal review that each of the documents was partially exempt under s 36 of the FOI Act.[4]
[4] T documents, 314
Application 2007/2209
The Department’s third decision dealt with two documents that it considered it had not otherwise addressed in dealing with Telstra’s requests for access. Those two documents were:
1.the draft IDC Report on ULLS retail parity (draft IDC report); and
2.the IDC Report – Telstra’s Unconditional Local Loop Services (ULLS) – Department of Finance and Administration (DOFA Report).
The Department decided that the DOFA Report is partially exempt under ss 43 and 45 and wholly exempt under ss 34 and 36. In relation to the draft IDC report, the Department decided that it is partially exempt under ss 36, 43 and 45.[5]
[5] T documents, 327
The documents over which confidentiality order sought
The Department has sought the order over seven documents, or parts of them that were either included, or referred to, in the T documents initially lodged in proceedings 2007/619. They have been described in the submissions made on its behalf and I have also had regard to the documents and their description in the consolidated set of T documents that the Department has prepared in relation to these proceedings. Documents T12, T14, T17, T18, T19, T31 and T32 are all referred to in the list of material on which the original decision-maker based his findings of fact.[6] He made no other specific reference to the seven documents in the course of his reasons.
[6] T documents, T33 at 193
The Department has also sought an order under s 35 of the AAT Act in relation to two other documents, which were not referred to by the decision-maker but which have been included among the T documents. They are T43 and T44.
T12: Letter from the Minister to ACCC regarding Unbundled Local Loop Services and Pricing Parity
The letter, which is addressed to Mr Samuel, is dated 22 December 2005. It begins by advising him that the Minister is requesting advice from the ACCC to give effect to the then Government’s recent consideration of matters relating to the pricing of the ULLS and to advise him of the Government’s decisions regarding price control compliance and retail price parity. The Minister summarised Telstra’s request to her asking for Ministerial Pricing Determination and the Government’s consideration of a report of the IDC. She acknowledged that the interaction between wholesale access pricing decisions and retail pricing regulation is complex before setting out details of the content from the Draft Report and a discussion of that content. The Department claimed that the Draft Report is partially exempt under ss 36 and 43 of the FOI Act.
T14: Department’s minute to the Minister (No. M2006/0316) of March 2006
T14 contains details of the content of the Draft Report, which is one of the documents which the Department has claimed to be exempt from disclosure under the FOI Act. The minute also contains discussion of that content.
T17, T18 and T19: Letters sent by the Department to third parties regarding Telstra’s request on basis that their affairs were referred to in Report on ULLS Pricing and Retail Price Parity dated March 2006
The third parties to which the letters were sent were SingTel Optus Pty Ltd (T15), Primus Telecommunications Pty Ltd (T16) and iiNet Ltd (T17). Each contains information set out in the Draft Report about the business, commercial or financial affairs of the third party to whom the particular letter was addressed.
T31: Email from Department of Prime Minister and Cabinet to Department
T 32: File note of conversation between PM&C to Department document recording an opinion of Cabinet and the “PM”
T31 is an email from an officer in the Department of Prime Minister and Cabinet (PM&C) to an officer of the Department. It contains a description of a decision of a group of Ministers described as Senior Ministers.
T32 is a handwritten note by an officer of the Department with an officer of PM&C. On its face, it records an opinion of Cabinet and of the Prime Minister.
At the hearing, the Department will contend that the group described as “Senior Ministers” is “equivalent to or forms part of the Cabinet”.[7] In light of s 34(6) of the FOI Act, the submission would extend to the Senior Ministers’ being the equivalent to or forming part of a committee of Cabinet. On the basis that the group of Senior Ministers is part of Cabinet, documents recording their decisions are exempt from disclosure under s 34. Quite apart from the FOI Act and relying on the judgment of the majority in The Commonwealth v Northern Land Council,[8] it was submitted, there is a public interest in not disclosing Cabinet deliberations. The production to the court of documents recording Cabinet deliberations should only be ordered in exceptional circumstances.[9]
[7] Submissions of the Department dated 18 June 2007 at [24.1]
[8] (1993) 176 CLR 604; 112 ALR 409 at 619; 412
[9] The Commonwealth v Northern Land Council (1993) 176 CLR 604; 112 ALR 409 at 619; 415
T43 and T44: Letters sent by the Department to third parties regarding Telstra’s request
On 7 February 2007, the Department wrote to PowerTel Ltd (T43) and SingTel Optus Pty Ltd (T44). The letter addressed to PowerTel Ltd contained a passage from the Daft Report about its, and/or that of its related companies, business, commercial or financial affairs. That addressed to SingTel Optus Pty Ltd contained a passage drawn from the raft Report and from the DOFA Report regarding that company’s business, commercial or financial affairs and/or those of its related companies.
LEGISLATIVE BACKGROUND
Both the AAT Act and the FOI Act have provisions relating to confidentiality of proceedings in the Tribunal. Those in s 35 of the AAT Act apply to all proceedings of the Tribunal. As provided in s 25(6), however, s 35 may be excluded or modified by an enactment that provides for the Tribunal to review decisions made in the exercise of powers under that enactment. The FOI Act is such an enactment.
Administrative Appeals Tribunal Act
In broad terms, ss 35(2)(b) and (c) of the AAT Act permit the Tribunal to prohibit or restrict the publication of evidence received by it or of matters in documents lodged with it. They must be seen in their context. That context begins with the general proposition in s 35(1) that, subject to the section itself, “… the hearing of a proceeding before the Tribunal shall be in public.”[10] The public nature of the hearing is emphasised by the provisions of s 35(1A), which makes provision for those persons appearing at a hearing of a proceeding held in public by means of a telephone, closed-circuit television or any other means of communication.[11] In those circumstances, the Tribunal is required to take those steps that are reasonably necessary to ensure that the public nature of the hearing is preserved.
[10] Section 35 does not apply to a proceeding in the Security Appeals Division: AAT Act, s 35(1AA)
[11] AAT Act, s 35A
The Tribunal is also able to direct that a hearing or part of a hearing is held in private. That is provided for in s 35(2):
“Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a)…
(aa)…
(b)give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.”
In deciding whether an order is desirable under s 35(2), the Tribunal must have regard to the matters set out in s 35(3):
“In considering:
(a)whether the hearing of a proceeding should be held in private; or
(b)whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.”
Freedom of Information Act
The object of the FOI Act “… is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth …” by requiring agencies to publish certain information about their functions and decision-making and by creating a right of access to information.[12] The right of access that is created by the FOI Act is not unlimited. It is limited by “… exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities”.[13] The exceptions are found in Parts III and IV of the legislation. Part III is concerned with qualifications that are concerned more with workload and procedural considerations and not with the subject matter of the documents requested. Part IV is concerned with qualifications that are concerned with the subject matter of the documents requested. It describes those qualifications in terms of exemptions and the right that every person has under the FOI Act does not extend to documents that are exempt documents.
[12] FOI Act, ss 3(1)(a) and (b)
[13] FOI Act, s 3(1)(b) and see also s 11(1) which provides that “Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: (a) a document of an agency other than an exempt document; and (b) an official document of a Minister, other than an exempt document.”
Part VI provides for internal review of decisions by the agency or Minister to whom the request was made and for review of decisions by the Tribunal.[14] Where an application is made to the Tribunal, the review is generally governed by the AAT Act but the operation of some of its provisions may be added to, excluded or modified by the enactment giving the Tribunal power to review the decision. Among those provisions is s 35 of the AAT Act.[15] The FOI Act has modified s 35 by restricting the scope of the discretion that it gives the Tribunal. The modification is found in s 63 of the FOI Act, which provides:
[14] FOI Act, ss 54 and 55 and see also AAT Act, s 25(4)
[15] AAT Act, s 25(6)(a)
“(1) In proceedings under this Part, the Tribunal shall made such order or orders under subsection 35(2) of the Administrative Appeals Tribunal Act 1975 as it thinks necessary having regard to the nature of the proceedings and, in particular, to the necessity of avoiding the disclosure to the applicant of:
(a)exempt matter contained in a document to which the proceedings relate; or
(b)information of the kind referred to in subsection 25(1).
(2)Notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975:
(a)the Tribunal shall not, in its decision, or reasons for a decision, in a matter arising under this Act, include any matter or information of a kind referred to in subsection (1); and
(b)the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind to in subsection (1).”
The term “exempt matter” used in s 63(1)(a) is defined in s 4(1) to mean:
“… matter the inclusion of which in a document causes the document to be an exempt document.”
An “exempt document” is defined to mean:
“(a) a document which, by virtue of a provision of Part IV, is an
exempt document;
(b) a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act; or
(c) an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.”
In broad terms, a document is exempt under Part IV of the FOI Act if it comes within one of the categories of documents described in certain sections in that Part (e.g. ss 33, 34 and 42), if disclosure of it under the Act would have one or more of the outcomes described in other sections (e.g. ss 33, 33A, 41 and 43) or if it disclosure is prohibited by other legislation (s 38). The exemptions in s 7 are also framed in terms of documents meeting certain descriptions and so too does the exemption described in (c) of the definition of “exempt matter”. .
Section 64 of the FOI Act, is concerned with the production of an exempt document in proceedings under the FOI Act in relation to a document claimed to be an exempt document. Section 64(1) provides that, where there are proceedings before the Tribunal under the FOI Act in relation to a document that is claimed to be an exempt document, s 37 of the AAT Act does not apply in relation to that document. That means that it need not be produced under s 37 as part of what are referred to as the T documents or referred to in the statement of reasons produced under that section and given to the applicant and the Tribunal.
Section 64(1) of the FOI Act goes on to provide that the Tribunal may require a document to be produced for inspection for the purpose of deciding whether the document is an exempt document. Only members of the constituted to hear the proceeding may inspect the document. If, having inspected it, the Tribunal is satisfied that the document is an exempt document, it must return it to the person producing it without permitting any person other than a staff member carrying out duties as a Tribunal staff member to have access to the document or to see its contents.[16] Similar restrictions on access to the document apply if the Tribunal requires the production of an exempt document for the purpose of determining whether it is practicable for an agency or a Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document.[17]
[16] FOI Act, s 64(1)
[17] FOI Act, s 64(2)
It may be that a Minister or agency voluntarily produces a document to the Tribunal. In that case, only the members as constituted for the review or a staff member carrying out duties as a Tribunal staff member may inspect or have access to the document.[18]
[18] FOI Act, s 64(1A)
Despite these provisions, the Tribunal’s powers to require production of a document are more curtailed when a certificate has been issued under ss 33, 33A, 34, 35 or 36. The Tribunal may not require the production of a document claimed to be exempt and subject to a certificate except in proceedings to determine a question referred to in ss 58(4), (5) or (5A).[19]
[19] FOI Act, ss 64(3) and (4)
THE SUBMISSIONS
Ms Mortimer SC with Mr Niall of counsel submitted on behalf of the applicant that an order should be made under s 35(2) of the AAT Act on the basis that T14, T17, T18, T19, T31, T32, T43 and T44 reproduce, in part and in substance, matter that is exempt matter. Even then, they fall into two sub-categories. The first comprises those parts of the documents - T14, T17, T18, T19, T43 and T44 – that reflect the substance of the exempt documents. The second comprises those parts of the documents – T31 and T32 – that, in part, record decisions of Cabinet or of the then Prime Minister. Ms Mortimer submitted that an order under s 35(2) is necessary in order to avoid disclosing matter to Telstra that is claimed to be exempt matter and that is contained in one or other of the six documents to which one or other of the three proceedings relates.
Disclosure of the relevant passages of the eight documents to Telstra’s counsel and solicitors, on the basis of their undertaking not to disclose them to their client would not be appropriate in this case. In this regard, Ms Mortimer distinguished my earlier decision in Re Dunn and Department of Defence,[20] which I heard with Mr Ermert. In summary, she did so on the basis that the documents in Re Dunn did not reproduce exempt matter and because to refuse access to Mr Dunn’s legal representatives would have been to deny him procedural fairness. It was a decision consistent with the principles in Re Pochi and Minister for Immigration and Ethnic Affairs.[21] in which the Minister had sought a confidentiality order over material adduced to support his case against Mr Pochi. That is not the position in this case as it is the FOI Act, rather than the Department, which requires an applicant to put a case to the Tribunal without seeing the documents. Unless Telstra can point to some other forensic disadvantage and/or to some other forensic use to which the passages in the eight documents will be put, an order that it be permitted to see the material would be to frustrate the purpose of ss 63 and 64.
[20] (2004) 84 ALD 419
[21] (1979) 26 ALR 247; 2 ALD 33; 36 FLR 482
If Telstra’s legal representatives were to be given access to the passages in the documents in circumstances that prevail in this case, Ms Mortimer continued, a legally represented applicant would have an advantage not enjoyed by an applicant without legal representation. That would be an odd result.
There is nothing to suggest that the delegate making the original decision or the delegate on review had regard to the substance of the passages. They need not have made any reference to them.
On behalf of Telstra, Mr Hanks QC with Mr Pizer of counsel submitted that T14, T17, T18, T19, T31, T32, T43 and T44 were not lodged by accident in the Tribunal. Rather, they were lodged by the decision-maker in compliance with his obligation under s 37 of the AAT Act. They were lodged and received by the Tribunal on the basis that they were relevant to the review of the decision.
Section 64 of the FOI Act does not require orders to be made under s 35 of the AAT Act and the operation of s 35 is not affected, limited or reduced by ss 64(1) or 64(1A). Section 63(1)(a) is different. It imposes an obligation on the Tribunal in one sense but it is an obligation that is limited to making only those orders it thinks necessary to avoid the disclosure of “exempt matter contained in a document to which the proceedings relate” to the applicant. In Mr Hanks’ submission, “a document to which the proceedings relate” is not a reference to a document lodged in the Tribunal under s 37 of the AAT Act and so one of the T documents. He acknowledged, however, that the presence of the matter claimed to be exempt would itself be exempt matter and the documents would themselves be claimed to be exempt under the FOI Act. In any event, the obligation imposed by s 63(1) is an obligation to keep the exempt matter from the applicant, and so from Telstra, but not from its legal representatives.
In considering the Tribunal’s powers under s 35(2) of the AAT Act, regard needs to be had to the requirement to ensure that each party has a reasonable opportunity to present its case. As recognised in Re Dunn, the FOI Act has not excluded the procedural fairness requirements of s 39 of the AAT Act.
CONSIDERATION
AAT Act: s 35
I must start any consideration of whether or not to make an order restricting access to evidence from the principle that it is desirable that hearings of proceedings should be held in public. That is expressly stated in s 35(3) and it is a provision merely underlining the requirement in s 35(1) that, subject to the section itself, the hearing of a proceeding shall be in public. That would ordinarily mean that the evidence given to the Tribunal would also be made available to the public and to all parties. Section 35(3) makes it clear that this is indeed the case and the Tribunal must take that as part of the basis of its consideration.
The reasons behind the principles set out in ss 35(1) and (3) have been expressed in various ways over the years. Sir Jack IH Jacob QC, for example, expressed them this way:
“ The need for public justice … is that it removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of ‘judging the judges’: by sitting in public, the judges are themselves accountable and on trial. This was powerfully expressed in the great aphorism that, ‘It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.’ …”[22]
[22] Hamlyn Lectures (38th series) The Fabric of English Justice at 22 quoted by Lord Woolf MR in Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673 at 685
In Russell v Russell; Farrelly v Farrelly,[23] Gibbs J said:
“It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted ‘publicly and in open view’ (Scott v Scott [1913] AC 417 at 441 [1911-13] All Er Rep 1 at 11). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ (McPherson v McPherson [1936] AC 177 at 200; [1935] All Er Rep 105 at 109). To require a court invariably to sit in closed court is to alter the nature of the court. …”[24]
[23] (1976) 134 CLR 495; 9 ALR 103
[24] (1976) 134 CLR 495; 9 ALR 103 at 520; 122-123
The principle of an open hearing does not, however, mean that a public hearing requires the disclosure of every document put before the court or, if its existence is disclosed, its contents. This aspect was considered by the New South Wales Court of Appeal in John Fairfax Publications Pty Ltd v Ryde Local Court.[25] Spigelman CJ said:
“… It is entirely appropriate for the court to ensure that the public is fully informed of the actual proceedings in court even though, perhaps by reason of efficient procedure or the application of particular rules of practice, the matter is not read out in open court, but is either taken as read or otherwise deployed in a manner which influences the actions of the judicial officer.
…
[68] It is unnecessary to determine a single test applicable in all situations to identify when a document has been put before the court in such a manner that it ought be made public. A useful test was proposed by Lord Clyde in Cunningham v The Scotsman Publications Ltd [1987] SLT 698 at 706:
‘The test in my view is not what is actually read out – although all that is read out is published – but what is in the presentation of the case intended to be published and so put in the same position as if it had been read out. If it is referred to and founded upon before the court with a view to advancing the submission which is being made, it is taken as published.’
[69] The underlying principle is as stated by Byrne J in Smith v Harris [1996] 2 VR 335 at 350:
‘... [T]he policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself.’”[26]
[25] [2005] NSWCA 101; (2005) 220 ALR 248
[26] [2005] NSWCA 101; (2005) 220 ALR 248 at [67]-[69]; 260
There are numerous examples of confidentiality orders. In Hodgson v Imperial Tobacco Ltd,[27] for example, Lord Woolf argued for an open system of justice in but recognised that there may be compelling reasons for secrecy in some instances. There are legislative provisions of which ss 63 and 64 of the FOI Act are an example. In the absence of that legislative provision, the House of Lords in Scott v Scott has long since recognised the need to protect certain persons when a court is exercising its parental jurisdiction[28] and is in truth concerned with private domestic affairs.[29] It also recognised that there are cases in which the secrecy of a process or manufacture or discovery or invention – trade secrets – is the very matter in contention. As Lord Shaw said: “… the rights of the subject are bound up with the preservation of the secret. To divulge it to the world, under the excuse of a report of proceedings in a court of law, would be to destroy that very protection which the subject seeks at the court’s hands. …”[30]
[27] [1998] 2 All ER 673
[28] [1911-13] All ER 1 at 13 per Earl Loreburn
[29] Scott v Scott [1911-13] All ER 1 at 33 per Lord Shaw
[30] Scott v Scott [1911-13] All ER 1 at 33 per Lord Shaw
The reasons for these exceptions are found in a second principle that must at least stand with that of openness if not underpin it. That is the principle that “… the chief object of courts of justice must be to secure that justice is done.[31]In Scott v Scott, Earl Loreburn expressed it in this way:
“… It would be impossible to enumerate or anticipate all possible contingencies, but in all cases where the public has been excluded with admitted propriety, the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or because the parties entitled to justice would be reasonably deterred from seeking it at the hands of the court.”[32]
[31] Scott v Scott [1911-13] All ER 1 at 9 per Viscount Haldane LC
[32] Scott v Scott [1911-13] All ER 1 at 14
The High Court has also recognised that there are exceptions that are consistent with those to which we have already referred. Gibbs J in Russell v Russell; Farrelly v Farrelly said of them:
“… Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court. …”[33]
Other exceptions are found in cases such as Australian Broadcasting Commission v Parish,[34] Deane J said:
“The provisions of s 50 neither require nor warrant the court’s abandoning, as its prima facie approach, the ordinary common law rule that justice should be administered in public and that there should be public access to the evidence placed before the court in public hearing. What the section … recognises is that there are occasions where the administrative or interests of justice will make it desirable that there be a departure from the ordinary principle of the public administration of justice in open court.”[35]
[33] (1976) 134 CLR 495; 9 ALR 103 at 520; 123
[34] (1980) 43 FLR 129; 29 ALR 228
[35] (1980) 43 FLR 129 29 ALR 228 at 155; 253
The concept that not all need be disclosed to the public also finds expression in s 35(3). That provision acknowledges that there may be reasons why openness may not necessarily be appropriate in a particular case. It requires the Tribunal to pay due regard to any reasons given to it why a hearing should be held or evidence given in private or why the publication or disclosure of matter in a document should be restricted or prohibited. Some of those reasons will be found in the modifications to s 35 found in the modifications made by a particular enactment. In others, they may be found in what is relevant to the resolution of the issues that need to be decided and the nature of the evidence and the effect that its disclosure may have on persons connected or unconnected with the hearing.
FOI Act: ss 63 and 64
Sections 63 and 64 of the FOI Act modify the operation of s 35 of the AAT Act by removing the Tribunal’s discretion to decide whether the publication disclosure of some evidence or matter is restricted to certain persons or whether it will be available to the public.
On the face of ss 63 and 64, it is clear that there is no need for any order under s 35 of the AAT Act in order to protect the documents claimed to be exempt from disclosure. That is because the circumstances in which the Tribunal may require their production is confined to the circumstances set out in those sections as are the persons to whom the document may be disclosed. So too are the persons to whom the document may be disclosed if the document is voluntarily produced to the Tribunal.
Despite this, s 63(1) of the FOI Act requires the Tribunal to make any order under s 35(2) of the AAT Act that it “thinks necessary” having regard to the three considerations set out in s 63(1). The considerations are: the “nature of the proceedings” and the “necessity of avoiding the disclosure to the applicant” of “exempt matter contained in a document to which the proceedings relate” and/or “information of the kind referred to in s 25(1)”. It is clear from these considerations that the Tribunal must have regard to the fact that the proceedings are concerned with whether an applicant may have access to particular documents in so far as they contain matter claimed to be exempt from disclosure. To give an applicant access to that matter for the purpose of arguing whether access should be given is to destroy the whole point of the exemption’s being claimed and of the proceeding’s being held. The same applies if an applicant were given access during the proceedings in the Tribunal to information as to the existence or non-existence of a document in circumstances in which the presence of that information in a document would cause the document to be exempt under ss 33, 33A or 37 and s 25(1) does not require the agency or Minister to give it.
Section 63(2)(a) of the FOI Act also imposes restrictions upon what the Tribunal may say in its decision or reasons for decision. That becomes part of the context in which s 35(2) of the AAT Act must be considered. The restriction is not worded in terms of preventing it from including “exempt matter contained in a document to which the proceedings relate”. Instead, it is worded in terms of preventing it from including “any matter or information of a kind referred to in subsection (1)”. The reference to its being “of a kind” referred to in s 63(1) raises the question of just what is matter or information that is “of a kind”?
The expression has been considered in the context of laws relating to taxation, trade practices and customs and excise. Bunnings Group Ltd v Laminex Group Ltd[36] was a case concerned with the fitness for purpose and merchantable quality of goods in the context of Part V of the Trade Practices Act 1974 (TP Act). Section 74(2)(a) of the TP Act provides that a reference to goods should, unless a contrary intention appeared, be read as a reference to goods “of a kind ordinarily acquired for personal, domestic or household use or consumption.” Young J referred at one stage to a passage from the judgment of Tamberlin J in Air International Pty Ltd v Chief Executive Officer of Customs[37] in which his Honour had considered whether, for the purposes of the Customs Tariff Act 1995, certain goods were of a kind used as replacement components in passenger vehicles. Tamberlin J had said:
“It is helpful to look at actual use, if any, when deciding whether goods are of a kind used as replacement components. When they are so used, then that points to a conclusion that they are ‘of a kind’ so used. The words “of a kind” add a further level of generality to the expression ‘used’ so that even if … the goods are not so used but are within a range of goods of a type which are used, then they satisfy the required description.”[38]
[36] (2006) 153 FCR 479; 230 ALR 269
[37] (2002) 121 FCR 149
[38] (2002) 121 FCR 149 at 160 [53]
Having analysed the approaches taken by other cases considering the words “of a kind”, Young J accepted that a broad range of evidence might be relevant in answering the statutory question. At the same time, he underlined the need to keep the statutory question in mind to ensure that the evidence does not blur the question or distract a court from it:
“… It would, for example, be a mistake to become so focused on the properties, attributes and intended and advertised uses of the particular goods that the Court fails to address the statutory question. This risk would materialise if the kind of goods were to be identified so narrowly that it amounted to little more than a description of the particular goods.”[39]
[39] (2006) 153 FCR 479; 230 ALR 269 at 505; 293
Although considered in a very different context, Young J’s observations regarding the interpretation of the words “of a kind” are equally applicable to them when they are used in s 63(2). The obligation on the Tribunal not to refer in its decision or reasons for decision to any “matter or information of a kind referred to in subsection (1)” is an obligation that extends beyond referring to the exempt matter contained in a document to which the proceedings relate and so to the matter claimed to be exempt in the document to which the applicant has sought access. It extends to information or matter that is “of the same sort”[40] as that in the document for which exemption is claimed and so to information or matter that paraphrases or summarises it. Except in situations in which s 25(1) applies, the obligation would not seem to extend to a mere reference to the document in which the exempt matter appears. I have considered whether it extends to matter that would be exempt from disclosure under the FOI Act if a request for it had been made. This would engage the parties and the Tribunal in a hypothetical exercise in relation to each piece of evidence put forward and considered. I do not think that the obligation extends that far. The reference in s 63(2) to matter or information of a kind referred to in s 63(1) focuses attention not only on the exempt matter contained in a document but to a document “to which the proceedings relate”. Only a document for which exemption has been claimed as a result of a particular applicant’s request will come within that description.
[40] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
AAT Act: s 37
Section 37 of the AAT Act is also relevant. It is relevant in that the documents over which the confidentiality orders were sought were lodged under that section. Section 37 also has a wider relevance as part of the framework within which evidence in some form or other is given to the Tribunal and within which the Tribunal conducts merits review. An examination of its terms shows that it is concerned with providing the Tribunal with a statement of why the decision was made and the material that is relevant to the review of the decision. The obligations that it imposes on the decision-maker in that regard fit neatly with those of the Tribunal to give reasons generally[41] and, when given in writing, to include its findings of fact on material questions of fact and to refer to the evidence or other material on which those findings were based.[42] Relevance is as much an issue for the Tribunal as it is for the decision-maker. I will now consider the decision-maker’s obligation in a little more detail.
[41] AAT Act, s 43(2)
[42] AAT Act, s 43(2B)
The obligation under s 37(1)(b) requires the decision-maker to lodge, among other things, “every other document” or part of a document that is in that person’s possession or under that person’s control and is relevant to the review by the Tribunal. The reference to “every other document” must be read as an acknowledgement of the application referred to in the opening words of s 37(1) and of the statement referred to in s 37(1)(a). Given that the Tribunal’s review is de novo” and that it is not engaged in any quasi judicial review of the decision-maker’s decision, the reference to “every other document” should not be read as raising the status of the application and of the statement so that they are regarded as “relevant to the review of the decision by the Tribunal. The application is a condition precedent to the Tribunal’s having jurisdiction. The statement under s 37(1)(a) is a portrayal of what has gone before and a foundation on which the parties initially assess their positions and on which the Tribunal may encourage informal discussions between them or on which preliminary procedural matters are decided. As a foundation, it quickly becomes irrelevant as the matter moves through the Tribunal’s various proceedings and it is overtaken by later documents such as Statements of Facts and Contentions and, even later if it proceeds to hearing, submissions.
The “every other document” to which s 37(1)(b) refers, then, is a reference to every other document other than the application and the statement under s 37(1)(a) in the decision-maker’s possession or control provided that it is “relevant to the review of the decision by the Tribunal”. In Schiffer v Pattison[43], Kenny J considered the obligation when s 37(1)(b) required the decision-maker to lodge “every other document … that is … considered by the person to be relevant to the review of the decision by the Tribunal”. It now requires the person to lodge every other document that “… is relevant to the review”. Given the obligations upon a decision-maker to act in good faith, according to law and without taking it irrelevancies into account and without acting arbitrarily or capriciously,[44] it is open to wonder whether there is any practical difference between the two formulations. Whether there are or not, there is no difference between the two in so far as both formulations of s 37(1)(b) are not on-going obligations for the course of the Tribunal’s proceedings.[45] There are, however, other obligations cast upon the Department in its role as a model litigant to assist the Tribunal to carry out its duty to conduct a de novo review the decision.[46]
[43] [2001] FCA 1094
[44] Buck v Bavone (1976) 135 CLR 110 at 118-119 per Gibbs J cited with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276 per Brennan CJ, Toohey, McHugh and Gummow JJ
[45] [2001] FCA 1094 at [52]
[46] I discussed this in Re Specifix Fasteners Pty Ltd and Secretary, Department of Industry Tourism and Resources and Specifix Holdings Pty Ltd (party joined) [2007] AATA 1247 at [69]
FOI proceedings in the Tribunal: access to documents by legal representatives
The submission in this case is not that Telstra have access to the documents in question but that its legal representatives do. This is a question that was raised in Re Dunn.[47]It was a case in which Mr Ermert, Member, and I had to consider a similar question. We decided that we could not order the production of the documents that were claimed to be exempt to any person other than those referred to in s 64(1).[48]
[47] (2004) 84 ALD 419
[48] (2004) 84 ALD 419 at 447
We came to a different view regarding certain evidence given by Commodore Coates. That was evidence given in support of the claim for exemption that was given in a closed session. The remainder of the evidence was given in open session which the public could attend. We concluded:
“100. Access to that part of the proceedings in which Commodore Coates gave further evidence is a different matter. That is not the subject of s 64(1) but our decision must have regard to s 63(1) of the FOI Act. There are two things to notice about s 63(1). First, it is clear from the FOI Act that Parliament had the AAT Act in its mind when it enacted it. Parliament specifically directed the Tribunal to exercise its powers under s 35(2) of the AAT Act. In s 64(1), it restricted the application of s 37 of the AAT Act. Other examples are found elsewhere in the AAT Act. Despite its mind being upon the AAT Act, Parliament did not choose to exclude the application of the procedural fairness provisions in s 39 of the AAT Act. That rather suggests that regard should be had to s 39 in the ordinary way in which regard is had to it when considering whether to make an order under s 35 of the AAT Act. The second matter to notice is the emphasis of s 63(1) upon the ‘necessity of avoiding the disclosure to the applicant’ (emphasis added). It makes no reference to the legal representatives of the applicant. That same emphasis is made in s 63(2)(b). It may hear evidence in the absence of the applicant and the applicant’s legal representative but only ‘where it is necessary to do so to prevent the disclosure to the applicant of matter or information …’ (emphasis added) that the Tribunal regards as exempt (s 63(2)(b)).
101. Taking these matters into account, the whole framework of the FOI Act and the AAT Act as well as the authorities to which we have referred, it seems to us that, with one exception, we are required to balance the need to ensure that every party is given a reasonable opportunity to present its case and to inspect documents against the reasons for confidentiality just as we would in any other case. The one exception is that we consider that a reading of ss 63 and 64(1) requires us to exclude the applicant, and so Mr Dunn, from the proceedings where it is reasonably likely that there will be disclosure of ‘exempt matter’. That is ‘ …matter the inclusion of which in a document causes the document to be an exempt document’ (s 4(1)). That is consistent with the fact that the documents claimed to be exempt are at the very heart of these proceedings. To reveal them at the hearing would be to undermine them. It is not to the point to say that Mr Dunn will not be able to use what he learns. Parts III and IV of the FOI Act are concerned with access to documents. The use a person intends to make of those documents is irrelevant. If a person were to be given access to documents for the purpose of presenting a case, the protections that Parliament has put in place would count for nothing. It may be that an agency may choose not to claim an exemption but, by virtue of s 58(2) of the FOI Act, the Tribunal does not have that choice.
102. It could be said that there was no finding at that stage that the documents for which exemption is claimed do in fact cause them to be exempt documents. The same can be said of any evidence that is given. Until it is given, there can be no certainty whether it will disclose exempt matter. When we made our orders under s 35(2) of the AAT Act, it was on the basis of our expectation that evidence amounting to exempt matter would be given. Should that not have proved to be the case, we have given the parties liberty to apply.”[49]
[49] (2004) 84 ALD 419 at 447-448
Mr Ermert and I examined the authorities that have considered whether the Tribunal can accept an undertaking from a party’s legal representatives requiring them to keep certain information from their clients. [50] We concluded that they can. Our reasons for that decision were, in part:
“103. … We do not consider that it is against any public policy to accept an undertaking in these proceedings. Mr Dunn has specifically instructed Mr Pizer and Mr Quill to give undertakings. The emphasis of the FOI Act is upon shielding exempt matter from disclosure to the applicant but no mention is made of legal representatives. The philosophical basis of the FOI Act is not being circumvented for Mr Pizer and Mr Quill cannot disseminate the information they gain from the closed session.
104. The balance that must be struck is clear. On the one hand is the undeniable desirability of the Tribunal’s conducting its proceedings in public and the Tribunal’s obligation to accord procedural fairness in accordance with s 39 of the AAT Act. On the other is the need to maintain the confidentiality of the documents claimed to be exempt while the very issue of their status as exempt documents is considered and to maintain the confidentiality of information that is classified by the Department and the ADF as secret. In our view, the balance in this case lay in our permitting Mr Pizer and Mr Quill to take part in the closed session. By doing so, they could not only hear Commodore Coates’s further evidence but Mr Pizer could cross-examine him. At the same time, account was taken of the Department’s interest in maintaining the confidentiality of the information given in that closed session. Mr Pizer and Mr Quill are bound by their undertaking with regard to it. Furthermore, for the reasons we have set out above, Mr Pizer and Mr Quill were not permitted to see the documents claimed to be exempt. The information that was contained in them was referred to by category rather than by reference to the specific detail contained in the documents.”[51]
[50] (2004) 84 ALD 419 at 445-447
[51] (2004) 84 ALD 419 at 448-449
A central role played by relevance of evidentiary material
Having set out the general principles, it seems to me that relevance plays a central role in any consideration of whether or not evidence should be given or received in a public hearing and so available to the public. After all, a hearing in a court or tribunal is not to be used as an opportunity to explore issues that have no relevance in the review of the merits of the decision. Justice does not require it. To adopt the notions addressed by Byrne J said in Smith v Harris,[52] the public need only have access to as much of the process as is necessary for the public to scrutinise it. That is all that the policy of openness requires. It does not require that the public have access to the entire proceeding. In the vast majority of cases in the tribunal, though, that will be the case.
[52] See [44] above
Procedural fairness requires that a court or tribunal should not determine an issue on the basis of evidence or even on the basis of lack of evidence unless they have been given fair notice that it intends to take that course.[53] It is a principle whose focus is upon the parties. In that, it differs from the principles behind an open hearing for the focus of that is primarily upon the public. Despite their differences, both procedural fairness and public hearings are directed to:
“… securing ‘good administration’. While the respective emphases in, and understandings of, this may differ on occasion, the concern itself is a manifestly desirable and proper one. In the law, securing good administration can properly be said to be an organising idea for a group of principles which, in exacting procedural fairness, are designed to maintain public confidence in the integrity of administrative government …”[54]
[53] Jackamarra v Krakouer (1998) 195 CLR 516; 153 ALR 276 at 521-522; 279-280 (omitting footnotes)
[54] Kelson v Forward (1995) 60 FCR 39; 39 ALD 303 at 66; 326. An analysis of cases considering the model litigant obligation are found on the Attorney-General’s Department website at type="1">
The need for the parties to have a reasonable opportunity to address evidence and issues that will be considered by a court or tribunal does not translate to a need for them to have access to everything that the tribunal will see. It translates only to their having a reasonable opportunity to have access to evidence and to know the issues that a court or tribunal will consider relevant to its consideration. What is a reasonable opportunity is influenced by factors extending beyond the parties but I do not need to consider them in this case. More importantly in this case is the fact that the need to consider procedural fairness does not arise at all if the evidence is not relevant to the issues to be decided at all. There are occasions on which procedural fairness requires that the parties be given a reasonable opportunity to examine evidentiary material in order to decide whether it is relevant or not.
Interesting though some irrelevant issues may be, courts and tribunals would be misusing their powers were they to require the production of evidentiary material whether in oral form through witnesses or in documentary form in relation to them. To permit the parties to give such evidence could be seen as misleading the parties to think that the court or tribunal regarded, or might regard, such material as relevant in some way. In some circumstances, it might also be regarded as unnecessarily extending the hearing and so adding to the costs incurred by the parties and increasing the resources of the court or tribunal to the resolution of that particular matter.
Are the portions of the six documents relevant to the resolution of the issues?
The six documents are found in T documents lodged under s 37 of the AAT Act. I have set out the basis on which the T documents are identified. The fact that a document has been included in the T documents does not necessarily mean that a document is relevant to the review of the decision. Whether worded as it is now or as it was previously, the practical outcome is the same. They reflect what the decision-maker thought would be relevant to the Tribunal’s review of the decision. The decision-maker’s view of relevancy must be focused on the Tribunal’s review and not on what the decision-maker considered relevant to the initial decision. It must be a view formed in good faith. In the absence of any challenge to them, the Tribunal will accept the T documents as having been prepared on that basis but the decision-maker’s view cannot bind the Tribunal as to what it considers relevant or not relevant in conducting its review.
I have looked at the passages sought to be excluded from the documents. It is apparent from the text in the redacted version of the documents in the T documents that the material copies, paraphrases or summarises that in one or more of the documents sought to be exempt. Its place in those documents is known. Therefore, if the fact that the material has been used in that way is relevant to the parties, it is a fact known to them already.
The material in the six documents would certainly be relevant to Telstra and to its legal representatives in another way. Knowledge of its contents would be equivalent to knowing a part of the material claimed to be exempt and the subject of these proceedings. Such knowledge would no doubt assist them in framing their arguments as to whether that material is indeed exempt.
Should access to the documents be restricted?
In Re Dunn, access to such material was potentially given to Mr Dunn’s legal representatives. I say “potentially” because, on their giving an undertaking that they would not, among other matters, disclose evidence given during the closed session, the order enabled his legal representatives, to take part in the closed session when evidence was given by Commodore Coates in support of the claims for exemption made by the Department of Defence under ss 33(1) and 36(1) of the FOI Act. Mr Dunn had sought access to documents assessing the casualties that might face the Australian Defence Force involved in the Gulf deployment and subsequent Operation Falconer, which is also known in the United States of America as Operation Iraqi Freedom. In giving evidence, Commodore Coates might or might not reveal information of the sort referred to in documents requested by Mr Dunn.
A different situation prevails in this case. Access to the material is sought in the knowledge gained from the T documents themselves that it contains reference to material claimed to be exempt. It is not material that might be said to be of the same type as that claimed to be exempt. It is not material that might be revealed incidentally in the course of giving evidence in support of the claims for exemption or in the course of being cross-examined on that evidence. It is material that is substantially the same as the material claimed to be exempt and in issue in these proceedings. Access to the material when claimed to be exempt is carefully protected and access to it limited by ss 63 and 64 of the FOI Act to a small group of persons that includes neither an applicant nor an applicant’s legal representatives.
In view of these matters, it seems to me that I should not permit Telstra or its legal representatives to have access to the material. Sections 63 and 64 modify the general principle that all parties should have access to all material that is available to the Tribunal and on which it will review a decision. Parliament has decided that an applicant must conduct its case without the benefit of seeing the document in issue. To permit an applicant or its legal representatives to have access to the same material but in a document other than that sought and claimed to be exempt would be contrary to the position that Parliament has taken. Furthermore, I do not consider the appearance of that material in the particular T documents will be relevant to my decision. Its repetition does not change its character for the purposes of the FOI Act. It remains exempt or not exempt whether it is repeated in those documents or not. The process in the Tribunal will continue to be open to public scrutiny subject only to the limitations imposed by the FOI Act itself.
For these reasons, I order that:
1.access to those parts of the consolidated documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 and described as:
(1)T12 (page 73) – all of the fourth paragraph;
(2)T14 (pages 102-106) – the whole document;
(3)T17 (pages 111-115) – all of the two dot points in the third paragraph on pages 111-112 and the whole of pages 114 and 115;
(4)T18 (pages 116-118) – all of the dot point in the third paragraph on page 116 and the whole of page 118;
(5)T19 (pages 119-121) – all of the dot point in the third paragraph on page 119 and the whole of page 121;
(6)T31 (pages 178-183) – on page 179, in the paragraph beginning ‘The ACCC’s report was requested’, all the words after ‘Senior Minister’s decision’ and before ‘The decision was minuted as follows:’ and before the next paragraph commencing ‘According to the first paragraph of the Minute to the Minister’; and
(7)T32 (page 184) – on the first page, in the fourth dash point, all of the second sentence.
2.be restricted to:
(1)the member or members of the Tribunal constituted for the purpose of any proceeding in relation to this matter;
(2)staff of the Tribunal in the course of performing duties as a member of staff; and
(3)officers of the respondent, the respondent’s legal representatives and those persons whom the respondent involves in the preparation and conduct of proceedings on its behalf.
I certify that the seventy-two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Jayne Haydon Associate
Date of Directions Hearing 27 November 2007
Date of Decision 21 December 2007
Counsel for the Applicant Mr P J Hanks QC with Mr J D PizerSolicitor for the Applicant Mr M Batskos
FOI SolutionsCounsel for the Respondent Ms D Mortimer SC with Mr R M Niall
Solicitor for the Respondent Mr J Hyland
Australian Government Solicitor
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