FEDERAL COURT OF AUSTRALIA

Fitzgibbon v Turnbull [2017] FCA 968

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is granted leave to rely on his Second Amended Notice of Appeal and Originating Application dated 11 August 2017.

2.    That application is dismissed.

3.    The applicant is to pay the costs of the first respondent, as agreed or as taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This application is for judicial review of an interlocutory decision of the Administrative Appeals Tribunal that it did not have the power under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) in conjunction with the Freedom of Information Act 1982 (Cth) (the FOI Act) to make an order that the applicant’s legal representatives be allowed to inspect the document in dispute. The interlocutory decision was dated 23 March 2017 and written reasons were provided by the Tribunal on 13 April 2017.

2    In the substantive proceedings in the Tribunal the applicant seeks access to “a copy of the agreement between the Liberal and National Parties to form a Coalition Government” dated 15 September 2015 (the Coalition Agreement). The original decision-maker refused the request for access to the document on the basis that the document sought was not an “official document of a Minister” and, therefore, was not a document to which the FOI Act applied. The Information Commissioner, on review, affirmed that decision.

3    The applicant contends that the Tribunal erred by failing to exercise what he submits is its power under s 39 of the AAT Act which required, or alternatively permitted, the Tribunal to order that the applicant’s legal representatives inspect the relevant document, absent engagement of s 64 of the FOI Act.

4    There is also a notice of contention on behalf of the first respondent, in the following terms:

1.    Section 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) did not authorise or require the making of an order allowing a party access to a document that was not in the custody, possession or control of the Tribunal.

2.    Unless and until the Tribunal determined that the document, the subject of the Applicant’s request for access, was an official document of a Minister the Applicant was not a “party to a proceeding” within the meaning of section 39 of the AAT Act; and consequently that section had no application to the proceeding at the date of the Tribunal decision.

The statutory provisions

5    Section 39 of the AAT Act is relevantly as follows:

39    Submissions—Divisions other than Security Division and Social Services and Child Support Division

(1)    Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

6    Section 35 relevantly provides:

35    Public hearings and orders for private hearings, non-publication and non-disclosure

Public hearing

(1)    Subject to this section, the hearing of a proceeding before the Tribunal must be in public.

Private hearing

(2)    The Tribunal may, by order:

(a)    direct that a hearing or part of a hearing is to take place in private; and

(b)    give directions in relation to the persons who may be present.

Orders for non-publication or non-disclosure

(3)    The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:

(a)    information tending to reveal the identity of:

(i)    a party to or witness in a proceeding before the Tribunal; or

(ii)    any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or

(b)    information otherwise concerning a person referred to in paragraph (a).

(4)    The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

(a)    relates to a proceeding; and

(b)    is any of the following:

(i)    information that comprises evidence or information about evidence;

(ii)    information lodged with or otherwise given to the Tribunal.

(5)    In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:

(a)    that hearings of proceedings before the Tribunal should be held in public; and

(b)    that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

(c)    that the contents of documents lodged with the Tribunal should be made available to all the parties.

However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

…

7    Section 37(1) of the AAT Act provides, broadly, that a person who has made a decision that is the subject of an application for review by the Tribunal must lodge with the Tribunal a copy of, amongst other things, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal. By s 37(1AE), a person who is required under s 37(1) to lodge a copy of a statement or document with the Tribunal within a particular period must, unless the Tribunal directs otherwise, also give a copy of the statement or document to each other party to the proceeding, within the same period. This provision is modified by s 64 of the FOI Act which I set out below.

8    Section 2A of the AAT Act provides:

2A Tribunal’s objective

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a)    is accessible; and

(b)    is fair, just, economical, informal and quick; and

(c)    is proportionate to the importance and complexity of the matter; and

(d)    promotes public trust and confidence in the decision-making of the Tribunal.

9    Sections 63 and 64 of the FOI Act relevantly provide:

63 Tribunal to ensure non-disclosure of certain matters

(1)    In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975, the Tribunal must:

(a)    have regard to:

(i)    the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate; and

(ii)    …; and

(b)    …

(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 paragraph (1)(a); 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 referred to in paragraph (1)(a).

64    Production of exempt documents

(1)    Sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 do not apply in relation to a document that is claimed to be an exempt document, but in proceedings before the Tribunal in relation to such a document, the Tribunal may, for the purpose of deciding whether the document is an exempt document, require the document to be produced for inspection by members of the Tribunal only.

(1AA)    If, upon the inspection, the Tribunal is satisfied that the document is an exempt document, the Tribunal must return the document to the person by whom it was produced without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is:

(a)    a member of the Tribunal as constituted for the purposes of the proceeding; or

(b)    a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or

(c)    in the circumstances permitted under paragraph 60A(6)(a)—the Inspector-General of Intelligence and Security.

(1A)    If, for the purposes of proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document, the document is voluntarily produced to the Tribunal, then only:

(a)    the members of the Tribunal as constituted for the purposes of the review; or

(b)    a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; may inspect, or have access to, the document.

(2)    The Tribunal may require the production, for inspection by members of the Tribunal only, 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 and, where an exempt document is produced by reason of such a requirement, the Tribunal shall, after inspection of the document by the members of the Tribunal as constituted for the purposes of the proceeding, return the document to the person by whom it was produced without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is:

(a)    a member of the Tribunal as constituted for the purposes of the proceeding; or

(b)    a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or

(c)    in the circumstances permitted under paragraph 60A(6)(a)—the Inspector-General of Intelligence and Security.

Note:    The Tribunal is not entitled, under this section, to require production of documents that are exempt under section 33, 34 or 45A, but is entitled to do so under section 58E if the Tribunal is not satisfied by evidence on affidavit or otherwise that the document is an exempt document.

(4A)    In making an order for the purposes of subsection (1) or (2), the Tribunal may require the relevant document to be produced at any time later than 28 days after the decision-maker was given notice of the application, even if that time is before the Tribunal has begun to hear argument or otherwise deal with the matter.

(5)    Subsections (1), (1A) and (2) apply in relation to a document in the possession of a Minister that is claimed by the Minister not to be an official document of the Minister as if references in those subsections to an exempt document were references to a document in the possession of a Minister that is not an official document of the Minister.

(6)    Subsection (1), (1A) or (2) does not operate so as to prevent the Tribunal from causing a document produced in accordance with that subsection to be sent to the Federal Court of Australia in accordance with section 46 of the Administrative Appeals Tribunal Act 1975, but, where such a document is so sent to the Court, the Court shall do all things necessary to ensure that the contents of the document are not disclosed (otherwise than in accordance with this Act) to any person other than a member of the Court as constituted for the purpose of the proceeding before the Court or a member of the staff of the Court in the course of the performance of his or her duties as a member of that staff.

(7)    Subsection (6) does not prevent the Federal Court of Australia from causing the document concerned to be sent to the Federal Circuit Court of Australia as mentioned in subparagraph 46(1)(c)(i) of the Administrative Appeals Tribunal Act 1975.

(8)    If a document produced in accordance with subsection (1), (1A) or (2) is sent to the Federal Circuit Court of Australia as mentioned in subparagraph 46(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Federal Circuit Court of Australia must do all things necessary to ensure that the contents of the document are not disclosed (otherwise than in accordance with this Act) to any person other than:

(a)    the Judge who constitutes the Federal Circuit Court of Australia for the purposes of the proceeding before the Federal Circuit Court of Australia; or

(b)    a member of the staff of the Federal Circuit Court of Australia in the course of the performance of his or her duties as a member of that staff.

The Tribunal’s decision

10    As indicated above, the applicant applied to the Tribunal for an interlocutory order that his legal representatives be allowed to inspect the disputed document, the Coalition Agreement.

11    The Tribunal concluded, at [3] of its reasons, that it did not have the power to make the inspection order that the applicant sought and, if the Tribunal did have that power, the Tribunal would decline to exercise it.

12    In its reasons, the Tribunal referred to ss 35, 37 and 39 of the AAT Act. The Tribunal set out the relevant provisions of ss 63 and 64 of the FOI Act. It noted, at [17], that there is no provision with the corresponding effect on s 63 that s 64(5) has on s 64.

13    At [20], the Tribunal said that in this review, the Prime Minister claimed that the document in issue (the Coalition Agreement) was not an official document of a Minister. Because of s 64(5), s 64(1) applied as if references in that provision to an exempt document were references to a document in the possession of a Minister that is not an official document of the Minister. So, the Tribunal said, it was open to the Tribunal to make an order under s 64(1) requiring the production of the disputed document. It said it had not done so.

14    At [21], the Tribunal said that the present applicant, Mr Fitzgibbon, submitted that, because no order had been made under s 64(1), the effect of the Court’s decision in Day v Collector of Customs [1995] FCA 1245; 57 FCR 176 was that s 39(1) of the AAT Act applied, and that he would be denied “a reasonable opportunity to present his … case” if he was not allowed “to inspect any documents to which the Tribunal proposes to have regard in reaching a decision”, specifically the Coalition Agreement.

15    At [22], the Tribunal disagreed with this submission and said it did not think that the decision in Day applied in the way that Mr Fitzgibbon said it did, because of the subsequent insertion of s 64(1A) in the FOI Act. In any event, the Tribunal added, it do not think that s 39(1) of the AAT Act applied in the way that Mr Fitzgibbon submitted that it did, because the Coalition Agreement was not (currently) a document to which the Tribunal proposed to have regard in reaching a decision in the review. And, even if s 39(1) did apply, the Tribunal said it did not think that it should exercise its discretion to order that Mr Fitzgibbon’s legal representatives be allowed to inspect the Coalition Agreement.

16    At [25], the Tribunal set out the relevant parts of the explanatory memorandum to the Bill that became the Act that inserted s 64(1A) of the FOI Act.

17    At [27], the Tribunal said that Mr Fitzgibbon submitted that s 39(1) applied in this review because the Coalition Agreement had not been produced to the Tribunal, compulsorily or voluntarily. He submitted, effectively, that the Tribunal could—indeed, should—order that a party be allowed to inspect a document that the Tribunal does not propose to inspect itself. The Tribunal disagreed because of its view about the meaning of “documents to which the Tribunal proposes to have regard” for the purposes of s 39(1). Furthermore, the Tribunal considered that the Tribunal having the power to make such an order was inconsistent with the fact that an agency or Minister could avoid complying with that order simply by voluntarily providing the document to the Tribunal.

18    Having considered the expression “documents to which the Tribunal proposes to have regard”, at [30] the Tribunal concluded that where the Tribunal makes a decision on review without inspecting the documents in dispute it did not think that it could be said to have “had regard” to the document.

19    At [32], the Tribunal said that if it was wrong and it did have a discretion under s 39(1) of the AAT Act to order that Mr Fitzgibbon’s legal representatives be allowed to inspect the Coalition Agreement, the Tribunal did not think that it should exercise that discretion.

20    At [33], the Tribunal did not accept the submission that it would be procedurally unfair for the review to continue without the Tribunal making such an order because, without such an order, Mr Fitzgibbon would be denied a reasonable opportunity to present his case. The Tribunal said:

Mr Fitzgibbon… points out that the Federal Court in Day said that “[i]t is generally undesirable that independent arbitrators make crucial decisions through self or unilateral instruction”. But, if the Tribunal does not inspect a document, it cannot be said that the Tribunal was self- or unilaterally-instructed. And if the Tribunal does inspect a document (whether produced compulsorily or voluntarily), ss 64(1AA) or s 64(1A) requires that people other than Tribunal members and staff must not be given access to the document—effectively requiring that the Tribunal be unilaterally instructed. In those circumstances, I do not think that it can be said that procedural fairness requires that Mr Fitzgibbon (or his legal advisors) be allowed to inspect the Coalition Agreement.

21    At [34], the Tribunal considered submissions involving ss 2A and 33(1AB) of the AAT Act. It referred to the submission on behalf of Mr Fitzgibbon that, if his legal representatives were to inspect the Coalition Agreement, they would be better placed to advise him how to proceed, and better placed to assist the Tribunal to meet its obligations under s 2A. The Tribunal said that may be true, but the Tribunal’s obligations under s 2A must be considered in light of the mechanism set out in ss 64(1AA) and (1A) of the FOI Act. Those provisions were clearly intended to restrict access to documents in dispute in FOI matters. The Tribunal’s mechanism of review must operate within those restrictions.

22    At [35], the Tribunal concluded that it did not have the power to order that Mr Fitzgibbon’s legal representatives be allowed to inspect the Coalition Agreement and, if the Tribunal did have that power, it would decline to exercise that power.

23    I should add that although the papers refer not only to the Coalition Agreement but also to additional documents, no issue was raised in this Court in relation to any additional documents.

The submissions of the parties

24    The applicant before the Court, Mr Fitzgibbon, submitted that the Tribunal erred in both respects in that s 39 of the AAT Act required that his lawyers be allowed to inspect a copy of the disputed document in order for him to have a “reasonable opportunity to present his … case” to the Tribunal. It was submitted that nothing in s 64 of the FOI Act prevented this, especially in circumstances where s 64 had not been engaged by the first respondent providing, nor the Tribunal seeking, the relevant document.

25    It was submitted that s 39 of the AAT Act operated unless, and at least until, s 64 of the FOI Act was engaged by actual production of the relevant document to the Tribunal, and that s 39 of the AAT Act required that Mr Fitzgibbon’s lawyers be given access to a copy of the document.

26    The applicant submitted that existing case law was clear and that the Tribunal erred when it concluded that it did not have the power to order inspection of the Coalition Agreement by his lawyers or, if it did have such power, it would decline to exercise its discretion under s 39 of the AAT Act. It was submitted that the Tribunal had such a power and, in the circumstances, it was required to exercise it to allow Mr Fitzgibbon’s lawyers to inspect the Coalition Agreement. The case law on which the applicant relied was Day, State Electricity Commission of Victoria v Wright & Administrative Appeals Tribunal (Supreme Court of Victoria, 20 November 1997, unreported); News Corporation Limited v National Companies & Securities Commission [1984] FCA 446; 5 FCR 88; Trkulja v Google Inc (No 3) [2011] VSC 503; and two Tribunal decisions being Re Witheford and Department of Foreign Affairs [1983] AATA 283; 5 ALD 534 and Re Dunn and Department of Defence [2004] AATA 1040; 84 ALD 419.

27    The applicant submitted that s 64 of the FOI Act was a production regime concerning the Tribunal. Section 39 of the AAT Act was a procedural fairness regime concerning the disputing parties. The applicant relied on the principle in Potter v Minahan [1908] HCA 63; 7 CLR 277 and submitted that Parliament needed to be clear in s 64 of the FOI Act in order for s 39 of the AAT Act to be rendered inoperative. Since Parliament did not do so, s 39 continued to operate even when s 64 might later be engaged. In relation to the amendment to s 64 to add s 64(1A), the applicant submitted that the relevant principle was that in the absence of an order under s 64(1) or voluntary production under s 64(1A) there was no express exclusion of s 39 of the AAT Act. The mere possibility of voluntary production was not enough to render s 39 of the AAT Act inoperative, contrary to what the Tribunal effectively concluded.

28    The applicant also relied on what Sackville J had said in O’Sullivan v Repatriation Commission [2003] FCA 387; 128 FCR 590 at [45] and submitted that whether or not the Tribunal proposed to have regard to a document, the Tribunal was still under an obligation to provide access to a document where that access ensured a party had a reasonable opportunity to present their case. The applicant also drew attention to the difference between the use of the term “shall” in s 39 of the AAT Act and the use of the word “may” in s 64 of the FOI Act. The applicant submitted that s 39 operated to mandate the provision of a reasonable opportunity which, in this case, required that the critical document be accessible to his lawyers.

29    The applicant also submitted that the context of s 39 meant that it was the statutory means to ensure that parties have an equal opportunity to prepare and present their case. This objective could not be divorced from the overarching objective for both the Tribunal and legal practitioners in it, as set out in ss 2A and 33(1AB). The applicant referred to principles of efficient case management and resolution and submitted that by denying the lawyers an opportunity to see the document, the Tribunal had denied Mr Fitzgibbon the opportunity to be advised as to whether the application was substantively worth pursuing. In respect of the purpose of s 39, the applicant submitted that the construction for which he contended best accorded with the principle of interpretation set out in s 15AA of the Acts Interpretation Act 1901 (Cth). The objective found in s 2A was achieved by transparency and fairness, not unilateral instruction of an otherwise uninformed Tribunal by the party seeking to keep secret a document it claimed to be exempt. It was submitted that if the current situation prevailed, the first respondent would be free to describe the contents of the Coalition Agreement without scrutiny and in a way which neither the applicant’s lawyers nor the Tribunal would be in a position to contradict or challenge.

30    The first respondent submitted that s 64(1), read with s 64(5), of the FOI Act provided that s 37 of the AAT Act does not apply in relation to a document that is claimed to be a document in the possession of a Minister that is not an official document of a Minister. It followed, the first respondent submitted, that because the applicant’s FOI request was refused on the basis that the document sought was not an “official document of a Minister”, that the document in issue was a document as described in s 64(5) and s 64(1) applied with respect to it. Consequently, the first respondent submitted, the ground of appeal was misconceived. Section 64(1) operated to exclude the obligations that would otherwise be imposed by s 37(1)(b) and s 37(1AE) of the AAT Act upon the first respondent to produce the Coalition Agreement to the Tribunal and, subject to any direction of the Tribunal, give a copy to the applicant. That was the present operation of s 64(1), the first respondent submitted, which had the direct result that the applicant or the applicant’s lawyers were not presently entitled to be provided with a copy of the document under s 37(1AE). The Tribunal’s conclusion at [26] and [27] was correct for that reason.

31    The Tribunal correctly reasoned at [28] that s 39(1) of the AAT Act is not presently engaged. The first respondent submitted a document is not a document “to which the Tribunal proposes to have regard in reaching a decision in the proceeding” unless and until the member or members constituting the Tribunal to hear that proceeding propose so to have regard to the document.

32    The first respondent also drew attention to the Tribunal’s finding that it was not established that the document was (presently) a document to which the Tribunal proposed to have regard in reaching its decision. The first respondent described that finding as unimpeachable.

33    The first respondent submitted that the means by which the Tribunal complied with the norm of procedural fairness in s 39 must yield to the express terms of ss 63 and 64 of the FOI Act in circumstances where those provisions of the FOI Act applied. Section 39 did not confer power or impose a duty to require the provision of a document to a party. Those powers were relevantly conferred by s 33(1)(a) of the AAT Act, read with s 35, s 33(2)(a), s 37(1AE) and s 40B.

34    The first respondent submitted that if he ultimately elected to run his case without adducing the Coalition Agreement in evidence, the order that the applicant sought would result in access which may be wholly otiose to either party’s participation in the proceedings.

35    The first respondent took issue with the submission, said by the first respondent to be made without any evidence, that the applicant’s legal advisers would be better placed to advise him how to proceed if they were to have access to the document

36    The first respondent submitted that the applicant pointed to no misapprehension of the facts or principle in the Tribunal’s exercise of discretion. Absent such error, the Court would not interfere with that exercise of discretion.

37    The first respondent submitted that the authorities upon which the applicant relied took the matter no further.

38    As to ground 2 of the first respondent’s notice of contention, he submitted that the primary decision was an “IC reviewable decision” only if it was an access refusal decision within the meaning of s 54L(2) of the FOI Act. Unless the “Coalition Agreement” document was in fact an official document of a Minister, the request was not a request within the meaning of s 15(1), and s 57A(1)(a) of the FOI Act did not provide for review of the decision refusing access to the document. The first respondent submitted that the Tribunal was enquiring into whether the document was an official document of a Minister and exercising its preliminary jurisdiction in determining whether the application made to it was within its jurisdiction.

39    The first respondent submitted that if the Coalition Agreement is not an official document of a Minister, there was no request within the meaning of s 15(1) of the FOI Act with the result that there has not been a decision of the Information Commissioner under s 55K and the Tribunal did not have jurisdiction. In that event, the first respondent submitted, the applicant was not a person who has applied to the Tribunal within the meaning of s 60(3)(a) of the FOI Act and therefore was not a party to a proceeding before the Tribunal within the meaning of s 60(3) of the FOI Act or s 30 of the AAT Act. The norm prescribed by s 39(1) of the AAT Act was for the benefit of a party to a proceeding and did not operate for the benefit of a party to a non-proceeding. It could not be shown that the Tribunal had failed to comply with that norm without first showing that the Coalition Agreement was an official document of a Minister and s 39 would only be engaged upon completion of the exercise of the preliminary jurisdiction with a determination that jurisdiction was in fact engaged.

Consideration

40    The necessary starting point is the terms of the FOI Act: the Tribunal was dealing with an application under s 57A of that Act. By s 15, a person who wishes to obtain access to an official document of the Minister may request access to the document. The phrase “official document of a Minister” is defined in s 4(1) by reference to whether a document that is in the possession of the Minister is in the Minister’s possession in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State.

41    By s 26, where a decision is made refusing to grant access to a document in accordance with the request, the decision-maker is to cause the applicant to be given notice in writing of the decision.

42    In the present case, as found by the Tribunal at [5], a decision to refuse the request on the grounds that the document was not an official document of the Minister and was therefore not a document to which the applicant had a right of access under the FOI Act was made on 8 December 2015.

43    On 13 January 2016, the applicant sought review of that decision under s 54L of the FOI Act by making an application to the Information Commissioner. On 7 December 2016, the Information Commissioner affirmed the decision of 8 December 2015, acting under s 55K of the FOI Act.

44    Under s 57A of the FOI Act, an application may be made to the Tribunal for review of the decision of the Information Commissioner under s 55K on an IC review, as defined in s 4(1) by reference to s 54G.

45    Such an application was made to the Tribunal on 23 December 2016.

46    Section 60 of the FOI Act sets out who are the parties to a proceeding before the Tribunal for a review of the decision.

47    Section 61A sets out modifications to various provisions of the AAT Act.

48    Section 63 of the FOI Act makes provision for the determination by the Tribunal as to whether it is desirable to make an order or orders under ss 35(2), (3) or (4) of the AAT Act and requiring the Tribunal to have regard to the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate. It was common ground that s 63 did not apply in terms to a document in the possession of the Minister that is claimed by the Minister not to be an official document of the Minister.

49    The analysis then turns to s 64. Reading subsections (1) and (5) together, s 37 of the AAT Act does not apply in relation to a document in the possession of the Minister that is claimed by the Minister not to be an official document of the Minister as if the references to an exempt document were references to a document in the possession of the Minister that is not an official document of the Minister. Thus s 37 does not apply in relation to a document that is claimed not to be an official document, but in proceedings before the Tribunal in relation to such a document, the Tribunal may, for the purpose of deciding whether the document is not an official document of a Minister, require the document to be produced for inspection by members of the Tribunal only. If upon the inspection the Tribunal is satisfied that the document is not an official document of the Minister, the Tribunal must return the document without permitting a person in the position of the applicant to have access to the document or disclosing the contents of the document to such a person. In the present case the applicant does not contend that the Coalition Agreement should have been produced under s 37 of the AAT Act. That must be because of the operation of s 64 of the FOI Act.

50    If the document is voluntarily produced to the Tribunal, by s 64(1A), only the members of the Tribunal as constituted for the purposes of the review or a member of the staff of the Tribunal may inspect, or have access to, the document.

51    By s 64(2), the Tribunal may require the production, for inspection by members of the Tribunal only, of a document for the purpose of determining whether it is practicable for the Minister to grant access to a copy of the document with deletions, and where such a document is produced by reason of such a requirement the Tribunal shall, after inspection of the document by the members of the Tribunal as constituted for the purposes of the proceeding, return the document to the person by whom it was produced without permitting a person to have access to the document or disclosing the contents of the document to a person such as the applicant.

52    Subsections 64(6)-(8) make provision for the contents of the document not being disclosed where a document produced under s 64 is sent to the Federal Court or the Federal Circuit Court in accordance with s 46 of the AAT Act.

53    Turning to the AAT Act, the provisions affected by the operation of s 63 of the FOI Act, which does not in terms apply to a document in the possession of the Minister that is claimed by the Minister not to be an official document of the Minister, are those in s 35, as follows. First, there is the provision in s 35(2) that the Tribunal may direct that a hearing or part of a hearing is to take place in private and give directions in relation to the persons who may be present. Second, there is the power of the Tribunal in s 35(3) to give directions prohibiting or restricting the publication or other disclosure of information concerning a person. Third, there is the power of the Tribunal in s 35(4) to give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that relates to a proceeding and is information that comprises evidence or information about evidence or information lodged with or otherwise given to the Tribunal.

54    As set out at [7] above, s 37 of the AAT Act deals, speaking generally, with the lodging of material documents with the Tribunal. The obligation on the person who has made a decision that is the subject of an application for review is to lodge with the Tribunal a copy of, relevantly, “every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal” does not apply to a document claimed to be an official document of the Minister.

55    As set out at [5] above, s 39 provides that subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

56    This provision is not said expressly to be subject to s 37 but the obligation on the Tribunal to ensure that a party is given a reasonable opportunity to inspect any documents to which the Tribunal proposes to have regard in reaching a decision is necessarily affected by the operation on ss 37 and 64 of the FOI Act.

57    The Coalition Agreement has not been lodged with the Tribunal and the Tribunal has not required the document to be produced for inspection by members of the Tribunal.

58    In the present case the Tribunal has stated that it does not propose presently to have regard to the Coalition Agreement in reaching a decision in the proceeding so that s 39 of the AAT Act is not directly engaged. I consider at [63] below the applicant’s submission that the Tribunal misconstrued the words “proposes to have regard” in s 39.

59    In my opinion, reading the sets of provisions in the AAT Act and the FOI Act together, including s 2A of the AAT Act, it is clear from the use of the terms of s 64 of the FOI Act, such as “members of the Tribunal only” and “without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is … a member of the Tribunal … ”, that it would be contrary to the legislative scheme for the Tribunal to permit access to an applicant party in the present circumstances.

60    Those circumstances are that the Tribunal does not at this point propose to have regard to the contents of the Coalition Agreement in reaching a decision in the proceeding; the Tribunal has not required the document to be produced for inspection “by members of the Tribunal only”, and the document has not been voluntarily produced to the Tribunal, giving rise to the obligation that only the members of the Tribunal constituted for the purposes of the review may inspect, or have access to, the document. In short, the Tribunal does not have the document and it appears the applicant has in mind that either the Tribunal should be required to obtain the document or the Tribunal should make an order directed to the first respondent to supply the document or access to the document to the applicant’s legal representatives. The applicant emphasised the second of these alternatives in his submissions.

61    In my opinion the legal representatives of a party are in no different position to a party: see News Corporation Limited at 96 (per Fox J) and 103 (per Woodward J) which I set out at [70] below.

62    I do not accept the applicant’s submission that s 39 of the AAT Act operates unless, and at least until, s 64 of the FOI Act is engaged by actual production of the relevant document to the Tribunal, and that s 39 of the AAT Act required that his lawyers be given access to a copy of the document. That construction would pluck s 39 out of its statutory context, in particular s 64 of the FOI Act.

63    Neither do I accept the submission that, as matters presently stand, the Coalition Agreement is a document “to which the Tribunal proposes to have regard in reaching a decision in the proceeding” within the meaning of s 39(1) of the AAT Act. In my opinion, in the present circumstances, having regard to the mere existence of a document, rather than to its contents, does not establish that the Tribunal proposes to have regard to the document. No different conclusion follows from the fact that the document is the subject-matter of the request under the FOI Act.

64    I do not accept the submission that the Tribunal erred in concluding that it did not have the power to order that the legal representatives of the applicant have access to the document in the possession not of the Tribunal but of the first respondent party.

65    I turn to consider the authorities on which the applicant relies.

66    Day, on which the applicant principally relied, appears to involve two stages of reasoning. First, at 182G, the Court accepted that the application of s 39 of the AAT Act was restricted by the procedure contained in s 64(1) of the FOI Act as it then stood and in such a case the Tribunal had no discretion to make the documents available to the applicant’s counsel. The balance of the judgment concerns the possibility that the Tribunal can obtain the documents by some means other than an order, for example, by voluntary production. In that case, it was said, s 64(1) as it then stood would have no application and the operative sections would be s 39 of the AAT Act and s 63(1) of the FOI Act.

67    In my opinion this decision does not assist the applicant as the facts stand. I also note that s 64(1A) of the FOI Act now expressly deals with the position of such a document being voluntarily produced to the Tribunal and expressly provides that only the members of the Tribunal as constituted for the purposes of the review of a member of the staff of the Tribunal in the course of the performance of their duties may inspect or have access to the document. I do not accept the applicant’s submission that Day is conclusive of the present application to the Court. I also do not accept the applicant’s submission that s 39 of the AAT Act operates in the circumstances of this case where the Tribunal does not have the document. It is to be recalled that the second stage of the reasoning in Day proceeded by reference to “if the Tribunal can obtain the documents by some means other an order” (emphasis added).

68    As to State Electricity Commission of Victoria v Wright, it concerned the Freedom of Information Act 1982 (Vic) and the Administrative Appeals Tribunal Act 1984 (Vic). Applications for prerogative relief and for relief under the Administrative Law Act 1978 (Vic) failed in relation to orders of the Tribunal that “… the Applicant by its counsel be granted access at the premises of the Tribunal on and after 3 November 1997 to the documents in dispute and the documents provided to the Tribunal for the purpose of an inspection, upon the usual undertaking by counsel given in relation to such an application.” In my view this decision is of no present assistance. Not only were the facts different in that the documents in dispute had been delivered to the Tribunal, but also s 56(3) of the Freedom of Information Act of the State of Victoria made express provision that the Tribunal may make an order that the contents of a document produced to the Tribunal under s 56(1) be disclosed to a qualified legal practitioner representing the applicant. As noted by Byrne J at page 20 of the report, the question before that Court “must be determined upon a proper construction of the Victorian statutes.”

69    News Corporation Limited relevantly concerned the validity of orders made by the Tribunal under s 35 of the AAT Act. Counsel for the applicants had sought access to the schedules which had been prepared and presented by the respondent setting up lists of the documents sought to be exempted, a short description of the contents of each sufficient to provide a prima facie justification for the ground or grounds exemption relied on, and a statement of the provisions of the FOI Act relied upon to support the claim for exemption. There was an order for non-disclosure of the schedule or schedules. Further, access was not given to the documents to which the lists related. There was some oral evidence given in the absence of the applicants.

70    At 96 of the report, Fox J referred to ss 35 and 39 of the AAT Act and ss 63 and 64 of the FOI Act. His Honour noted that an application had been made to the Tribunal for access to be granted to counsel, on the footing that he, or he and his solicitor, were the only persons to see the document and that that application was rejected by the Tribunal. His Honour said, at 96-97:

In the light of the statutory provisions, I doubt whether the Tribunal had power to act in any such way, but it would in any event be a matter for its discretion, and its failure to exercise the discretion in favour of the applicant is not a matter which would by itself involve an appealable error of law. I should add in this regard that the submission of the applicants depended at several points in drawing a distinction between “party” and the legal representative of a party, when considering the statutory language, but in my opinion the distinction is not sustainable.

…

Section 35(2) of the AAT Act is conditioned by the state of satisfaction of the Tribunal. It seems plain, and must have been the intent of s 63(1), that subs (2) applies, among other situations, to the maintenance of privacy in relation to an exempt document. To that end it can exercise the powers in that subsection (see also s 64(1) of the Act). The particular documents to which access was sought were the schedules produced by way of evidence before the Tribunal, for they contained a description of the documents, one by one. It is apparent from the evidence that to disclose the schedules would disclose the existence of the documents and their nature, would go a long way towards giving access to them (cf s 63(2) of the Act) and might well convey to the applicants, in relation to most documents, all they wished to know. It is not necessary to consider whether the schedules became exempt documents themselves (see s 25(1)).

I am of the view that s 35(2) provided a power which was available to be used, and am not satisfied that there was any error of law affecting its exercise. Section 39, which was relied on, is expressly made subject to s 35. The claim based on denial of natural justice must therefore fail.

Woodward J, at 103 said:

They challenged the order on a number of grounds, but in my view only two had any substance. The first was that it was beyond power because it was expressed in terms which extended to the legal representatives of the applicants in addition to the applicants themselves.

…

I think the reference to “parties” in s 35(2)(c) must be taken to include any persons representing those parties pursuant to s 32 of the Act, which is not confined to lawyers. It would be ridiculous if the Tribunal had power in a proper case to deny access to a company or organisation but not to the officer who happened to be representing it. And in my view even lawyers retained for a particular case should not be put in the invidious position of having to conceal important information from their clients, unless the proper trial of an action admits of no reasonable alternative. However, the reference to “restricting the disclosure” indicates that (among other possible conditions) disclosure may, in a proper case, be confined to certain named persons connected with a party.

71    I do not accept the submission on behalf of the present applicant that what Beaumont J said, in dissent, at pages 120-122 of the report provides support for his submission that the present Tribunal erred in law. Not only was Beaumont J in dissent but his Honour was concerned with the question of summaries rather than with the documents for which exemption was claimed. In addition, s 64 of the FOI Act was not then in its present form.

72    Trkulja v Google Inc concerned a dispute about discovery in the context of claims for damages for defamation. In my opinion the decision does not assist on the present question of statutory construction.

73    Re Witheford contains an observation by the Tribunal (constituted by Davies J (President), RK Todd (Deputy President) and GD Grant (Member)) as to the procedure adopted in that case. As appears at pages 541-542, an order was made under s 35 of the AAT Act prohibiting disclosure to the applicant, who appeared in person, of the documents remaining in dispute. The Tribunal said that the applicant was not excluded from the hearing while the particular documents were dealt with but the effect of the order under s 35 was that the documents were produced, evidence was taken and submissions made in relation to those documents without the applicant having the documents before him. It was in that context, and without reference to s 64 of the FOI Act, that the Tribunal said:

Where an applicant is represented by counsel it may be that in appropriate circumstances the Tribunal may feel justified in permitting the documents to be seen by counsel subject to the making of an order under s 35.

74    In my opinion the Tribunal was expressing a tentative view as to a potential practice and was not intending to construe s 64 of the FOI Act. In any event, as noted in Re Dunn, at [92]:

Contrary to the view expressed by Davies J, other cases have considered that the Tribunal does not have the power to give counsel access to documents on the basis of their giving undertakings. These include Re Arnold Bloch, Liebler & Co and Commissioner of Taxation (1984) 6 ALD 62 (Deputy President Todd), Re Kim Yee Chan and Department of Immigration and Ethnic Affairs (1985) 8 ALN N48 (Deputy President Thompson) and Re Carver and Department of the Prime Minister and Cabinet (1987) 6 AAR 317 (Deputy President Hall, Senior Member Renouf and Mr Taylor, Member).

75    As stated in Re Carver and Department of the Prime Minister and Cabinet [1987] AATA 50; 6 AAR 317 at [18] and in Re Arnold Bloch, Liebler & Co and Commissioner of Taxation [1984] AATA 123; 6 ALD 62, the Tribunal, after fuller consideration of the question, concluded that it was not open to the Tribunal to direct that access to the exempt documents be granted to counsel for the applicant. The Tribunal in Re Carver said at [18]:

… it is our view that to grant such access would fly in the face of the express provisions of s.63(1)(a) of the Act and the clear implication to the contrary arising from the provisions of s.64(1). Without repeating the reasoning set out most succinctly by Deputy President Todd in Re Arnold Bloch Liebler & Company, we are content, as we said at the hearing, to adopt that reasoning as our own and to find accordingly that access to the exempt documents cannot be granted to the applicant’s Counsel.

76    In Re Dunn the Tribunal followed Day in deciding, at [99], that as it had required the documents in issue to be produced to it under s 64(1) of the FOI Act, it was precluded by the terms of that provision from permitting the applicant or his legal representatives to be given access to the documents for the purposes of the proceedings. At [91] and following, as I have said, the Tribunal discussed the practice adopted in Re Witheford.

77    O’Sullivan did not concern the FOI Act or its interrelationship with the AAT Act. It concerned the unfairness of an individual being cross-examined on the false assumption that a key document was a complete copy. The fault was not either the applicant’s or the applicant’s advisers. Insofar as Sackville J referred, at [45] to the second part of s 39 of the AAT Act reflecting a clear statutory policy that a party should have an opportunity of inspecting documents that may play a part in the AAT reaching a decision and should also have the opportunity to make submissions on those documents, it is answered in the present case by the circumstance that the present case does concern the FOI Act and its interrelationship with the AAT Act and, further, that point has not been reached in the present case and may not be reached.

78    Potter v Minahan, in my opinion, does not assist in the present question of statutory interpretation. It concerns the improbability “that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness …” per O’Connor J at 304. In my opinion, s 64 of the FOI Act shows the necessary clearness in relation to the application of s 39 of the AAT Act to a document that is claimed to be an official document of a Minister.

79    I do not accept the applicant’s submission that s 2A of the AAT Act or case management principles operate to show that in the present circumstances the Tribunal misconstrued s 39 or erred in the exercise of its discretion. Those are general principles and must yield to the clear terms of the operative provisions of the legislation.

80    It is not necessary to consider further ground 1 of the first respondent’s notice of contention to the effect that s 39 of the AAT Act does not authorise or require the making of an order allowing a party access to a document that is not in the custody, possession or control of the Tribunal. I have rejected the applicant’s submission that s 39 operates in the present case where the Tribunal does not have the document.

81    It is not necessary to deal with ground 2 of the first respondent’s notice of contention. My preliminary view is that the Tribunal had authority to decide whether or not the document is an official document of the Minister, pursuant to s 58 of the FOI Act: see for example s 64(1) read with s 64(5). A request under s 15 of the FOI Act may be unsuccessful, but my tentative view is that the character of the document is a matter for the Tribunal to decide. Counsel for the first respondent accepted that the Tribunal was obliged to decide whether the Coalition Agreement is or is not an official document of the Minister. In my opinion, it is not apposite to describe that duty as the exercise of no more than a preliminary decision as to the Tribunal’s jurisdiction. I do not accept the first respondent’s submission that whether or not the document is an official document of a Minister is a jurisdictional fact.

Conclusion and orders

82    For these reasons I do not accept that s 39 of the AAT Act requires that the applicant’s legal representatives be given access to the Coalition Agreement at this stage of the proceedings in the Tribunal.

83    In my opinion the Tribunal did not err in concluding, at [35], that it did not have the power to order that Mr Fitzgibbon’s legal representatives be allowed to inspect the Coalition Agreement and that if the Tribunal did have that power, it would decline to exercise it, reading what the Tribunal said at [32]-[34] as to how it would exercise its discretion if it had one as referable to the stage of the proceedings reached in the Tribunal. The Tribunal took into account s 64 of the FOI Act as informing its discretion and I have concluded that it did not err in its construction of s 64 read with s 39 of the AAT Act.

84    Indeed the Tribunal’s view about s 39 of the AAT Act was also referable to the stage of the proceedings reached in the Tribunal. There is much force in the first respondent’s submission that this application is premature in the sense that the applicant cannot successfully contend that at this stage of the Tribunal’s proceedings he has been denied procedural fairness. I do not accept the applicant’s submission that I should proceed on the basis that there will be no further steps before the final hearing in the Tribunal.

85    The applicant’s second amended notice of appeal and originating application is dismissed. Counsel for the applicant accepted that in those circumstances costs should follow the event and I therefore order that the applicant pay the first respondent’s costs, as agreed or as taxed.

Associate:

Dated:    17 August 2017