FEDERAL COURT OF AUSTRALIA

McKinnon v Secretary, Department of Treasury

[2005] FCAFC 142

FREEDOM OF INFORMATION – decision to refuse access to documents - whether ‘internal working document’ – whether disclosure contrary to the public interest – conclusive certificate

ADMINISTRATIVE LAW - review of the decision to refuse access to documents - role of Administrative Appeals Tribunal (“Tribunal”) limited by s 58(5) of FOI Act - whether reasonable grounds exist for decision to refuse access – whether Tribunal applied wrong test of ‘public interest’ -whether Tribunal erred in excluding the appellant from attending the proceeding when oral evidence given by certain witnesses for the respondent

APPEAL – question of law

WORDS AND PHRASES - “reasonable grounds”

Administrative Appeals Tribunal Act 1975 (Cth) - s 44(1)

Broadcasting Act 1942 (Cth)

Freedom of Information Act 1982 (Cth) - ss 36, Part IV

Public Service Act 1999 (Cth)

Scientific Societies Act 1843 (UK)

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 referred to

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Australian Capital Territory Pty Limited v The Commonwealth (No 2) (1992) 177 CLR 106 referred to

Australian Doctors’ Fund Limited v Commonwealth of Australia (1994) 49 FCR 478 referred to

Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 referred to

Australian Securities and Investment Commission v Saxby Bridge Pty Limited (2003) 133 FCR 290 referred to

Battalis v Secretary, Department of Health, Housing and Community Services (1994) 34 ALD 483 cited

Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 referred to

Botany City Counsel v Minister for Transport and Regional Development (1996) 137 ALR 281 referred to

Centrelink v Dylestra [2002] FCA 1442 cited

Chief Executive Officer of Customs v AMI Toyota Ltd [2000] 102 FCR 578 referred to

Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 referred to

Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 referred to

Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 referred to

Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 referred to

Department of Industrial Relations v Burchill (1991) 33 FCR 122 referred to

Department of Industrial Relations v Forrest (1990) 21 FCR 93 referred to

Director of Public Prosecutions v Smith [1991] 1 VR 63 referred to

Dwyer and Department of Finance (1985) 8 ALD 474 referred to

Egan v Willis (1998) 195 CLR 424 referred to

Federal Commissioner of Taxation v Broken Hill South Limited (1941) 65 CLR 150 referred to

Fewster and Department of Prime Minister and Cabinet (1986) 11 ALN N266 referred to

George v Rockett (1990) 170 CLR 104 applied

Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 referred to

Inland Revenue Commissioners v Rossminster [1980] AC 952 referred to

In re Thompson (1964) Tas SR 129 cited

Liversidge v Anderson (1942) AC 206 referred to

Metropolitan Borough of Battersea v The British Iron and Steel Research Association [1949] 1 KB 434 referred to

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited

News Corp Limited v National Companies and Securities Commission (No 4) (1984) 1 FCR 64 cited

O’Sullivan v Farrer (1989) 168 CLR 210 cited

Re Actors’ Equity Association of Australia and Australian Broadcasting Tribunal (No 2) (1985) 7 ALD 584 referred to

Re Aldred and Department of the Treasurer (1994) 35 ALD 685 cited

Re Cleary and Department of the Treasury (1993) 31 ALD 214 referred to

Re Eccleston and Dept of Family Services and Aboriginal and Islander Affairs [1993] 1 QAR 60 referred to

Re Howard and Treasurer of the Commonwealth (1985) 7 ALD 626 referred to

Re McGarvin and Australian Prudential Regulatory Authority (1998) 53 ALD 161 referred to

Re MacPhee and the Department of the Treasury (1989) 11 AAR 166 referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 referred to

Re Peters and Department of the Prime Minister and Cabinet (No 2) (1983) 5 ALN N306 referred to

Re Porter and Department of Community Services and Health (1988) 8 AAR 335 referred to

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 referred to

Re Rae and Department of the Prime Minister and Cabinet (1986) 12 ALD 589 referred to

Re Reith and Minister for State for Aboriginal Affairs (1988) 16 ALD 709 referred to

Re Subramanian and Refugee Review Tribunal (1997) 44 ALD 435 referred to

Re Waterford and Treasurer of the Commonwealth of Australia (No 1) (1984) 6 ALN N347 referred to

Re Waterford and Treasurer of the Commonwealth of Australia (No 2) (1985) 8 ALN N37 referred to

Re Waterford and Department of the Treasury (No 2) (1984) 1 AAR 1 referred to

Reg v Tillett; ex parte Newton (1969) 14 FLR 101 cited

Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health (1995) 56 FCR 50 cited

Sankey v Whitlam (1978) 142 CLR 1 referred to

Sean Investments Pty Limited v McKellar (1981) 38 ALR 363 referred to

Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 36 FCR 111 referred to

Vetter v Lake Macquarie City Council (2001) 202 CLR 439 referred to

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 referred to

Waterford v Commonwealth (1986) 163 CLR 54 referred to

Australian Law Reform Commission Report No 77, ‘Open Government: Review of the Federal Freedom of Information Act 1982’ (1995)

MICHAEL MCKINNON v SECRETARY, DEPARTMENT OF TREASURY

NSD 70 of 2005

TAMBERLIN, CONTI AND JACOBSON JJ

2 AUGUST 2005

SYDNEY

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant is to pay the costs of the respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

TAMBERLIN J:

1                     I agree with the reasons and orders proposed by Jacobson J in this matter. As the Court is divided in this matter, I will add some observations as to the construction and application of s 58(5) of the Freedom of Information Act 1982 (Cth) (“the FOI Act”).

2                     In my opinion, the correct approach to a consideration of the application of the “public interest” is that taken by Beazley J in Australian Doctors’ Fund Ltd v Commonwealth of Australia (1994) 49 FCR 478 at 489-490, and applied in those authorities to which her Honour refers in support of her approach.

3                     It is necessary to be precise about the narrow question posed by s 58(5). The starting point must be the language of that section. Section 58(5) raises for determination by the Administrative Appeals Tribunal (‘the Tribunal’) the question:

“whether there exist reasonable grounds for the claim that the disclosure … would be contrary to the public interest.” (Emphasis added)

In terms, this is a narrowly confined question.

4                     It is settled law that the words “reasonable grounds”, in this context, denote grounds which are not irrational, absurd or ridiculous: Attorney-General v Cockroft (1986) 10 FCR 180 at 190 per Bowen CJ and Beaumont J; Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 32 FCR 111; Battalis v Secretary, Department of Health, Housing and Community Services & Ors (1994) 34 ALD 483 at 496-497 per Carr J; Centrelink v Dylestra [2002] FCA 1442 at [24] per Mansfield J. The expression “exist” can properly be read to mean whether there are any rational or non-absurd grounds in existence: see George v Rockett (1991) 170 CLR 104 at 116.

5                     The question posed in s 58(5) is quite distinct from the question whether the non-disclosure is properly and finally determined to be in the public interest. It is important to focus on the consideration that the subsection is concerned with the existence of reasonable grounds for a claim and not with the answer that should be given to the question whether the non-disclosure was correctly considered to be in the public interest after a weighing of all the grounds and reasons. This distinction can be illustrated by s 36, to which s 58(5) makes express reference. Section 36 refers to a subsequent, and different, question to that posed in s 58, namely, whether the Minister is satisfied that the disclosure would be contrary to the public interest. Section 36 is not concerned with whether there exists one or more reasonable grounds warranting the making of a claim to that effect. The two questions are distinct and discrete.

6                     In my view, s 58(5) of the FOI Act, in terms, is concerned with the threshold issue whether there is any non-absurd or rational ground for a claim that the disclosure of the material is contrary to the public interest. Of course, it is necessary to keep in mind that the subsection must be read as a whole and that it is artificial to analyse each term out of context. The combined effect of the language of the section must be read in a reasonable manner in order to determine the true purpose of the subsection, as opposed to artificially dissecting the components of the language in question, which may destroy the sense that is sought to be conveyed. Reading the subsection as a whole, the focus is on whether there are grounds for a claim. The focus is not on whether there are grounds that require or justify the conclusion that the non-disclosure is contrary to the public interest. The existence of grounds for a reasonable claim that a conclusion should be reached addresses a different issue from whether the grounds, when finely balanced against all other relevant considerations, warrant the ultimate conclusion as to the public interest being reached.

7                     The task assigned by s 58(5), according to the natural and ordinary meaning of the language of that subsection, is the determination of a specific defined question. This, in turn, involves the consideration of arguments for and against that question. However, the question is confined, by the terms of the section, to the issue whether there is any non-absurd basis for a claim that disclosure is contrary to the public interest. The Tribunal is not charged under this subsection with making any final determination as to where the public interest lies. The question posed is anterior to that ultimate determination.

8                     The reference to “thepublic interest” appears in an extensive range of legislative provisions upon which tribunals and courts are required to make determinations as to what decision will be in the public interest. This expression is, on the authorities, one that does not have any fixed meaning. It is of the widest import and is generally not defined or described in the legislative framework, nor, generally speaking, can it be defined. It is not desirable that the courts or tribunals, in an attempt to prescribe some generally applicable rule, should give a description of the public interest that confines this expression.

9                     The expression “in thepublic interest” directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances. There will, as in the present case, often be competing facets of the public interest that call for consideration when making a final determination as to where the public interest lies and these are sometimes loosely referred to, in my view, as opposing public interests. In the present case, broadly speaking, the competing aspects of the public interest include the benefits conferred on the public by the transparency of government processes and the need for confidentiality in certain circumstances.

10                  The expression “the public interest” is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination. In other instances, it appears in the form of a list of considerations to be taken into account as factors for evaluation when making a determination. By way of example, town planning legislation frequently lists a number of factors that a local council or planning body is required to take into account when making a determination, with a concluding consideration being a generalised reference to the public interest and the circumstances of the case.

11                  The indeterminate nature of the concept of “the public interest” means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination. In this respect, the well-known observations of Deane J in Sean Investments Pty Limited v McKellar (1981) 38 ALR 363 at 375 are apposite. In that case, his Honour was considering the different process of determining the relevant considerations to take into account in the exercise of a broad statutory discretion, however, the approach is relevant in the present case. His Honour said:

“In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.”

12                  The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that “thepublic interest” can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.

13                  In the context of freedom of information, the notion of the public interest was helpfully considered by the Appeal Division of the Supreme Court of Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63 at [75], where Kaye, Fullagar and Ormiston JJ said:

“The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 480, per Barwick CJ. There are … several and different features and facets of interest which form the public interest.”

14                  The expression “the public interest” was also the subject of consideration by Lehane J in Botany City Counsel v Minister for Transport and Regional Development (1996) 137 ALR 281 at 308, again in an administrative law context, where his Honour said:

“I think it is clear that the principal public interest to which the second respondent was giving expression was an interest in … the equitable or fair distribution of the noise necessarily associated with an airport close to the centre of a large city; and his view was that that public interest required dispersal of the noise rather than its concentration in a narrow corridor. … Others might … take a different view of what the public interest required. A decision between competing views is not, however, a matter for the court. What the court has to decide is whether the second respondent’s reasons disclose reviewable error, particularly, a misconstruction on his part of the expression ‘the public interest’. In my view they do not.”

15                  His Honour also referred to the statement by Mason CJ, Brennan, Dawson and Gaudron JJ in O’Sullivan v Farrer (1989) 168 CLR 210 at 216 that:

“Indeed, the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable …’”

See also Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492 at 505 and In re Thompson (1964) Tas SR 129 at 143-144.

16                  Applying the above principles to the present case, one example of a facet of the public interest that is relevant is the desirability of preserving confidentiality of intra-governmental communications prior to making a decision. Another, and obviously competing, facet of the public interest is the desirability of transparency in public administration. If there is a ground that is not irrational, absurd or ridiculous for a claim that the first-mentioned facet of the public interest would not be served by disclosure, then that alone is sufficient to satisfy the requirements of s 58(5). It is not necessary in order to decide that limited question that the decision-maker should consider and weigh all the other facets, and the grounds which may reasonably support each of those facets, in order for s 58(5) to be satisfied.

17                  In other words, it is not necessary at the s 58(5) stage of consideration to evaluate anything beyond the question whether the ground raised to support the particular facet of the public interest is irrational, absurd or patently untenable. There is a clear distinction drawn in the FOI Act between the question raised in s 58(5) and this subsequent question to be determined. In my view, the appellant’s submissions blur this distinction and seek to elide the latter issue into the question posed by s 58(5).

18                  I have had the benefit of considering the detailed reasons of Conti J in his dissenting judgment in this matter. His Honour makes reference to the decision in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393. In my view, that case does not assist the appellant in the present proceeding because the question that the Conciliation and Arbitration Commission was required to address was the final issue whether “further proceedings are not necessary or desirable in the public interest”. This is made clear at 395, where Mason CJ, Wilson and Dawson JJ state:

“In this case the Commission was called upon to weigh in the balance two competing public interests. One was the importance of settling in its entirety the dispute … The other was the importance of leaving the dispute to be resolved by the State tribunal despite the limitations on its jurisdiction.”

It was in that context that their Honours stated that a determination of where the public interest lies depends on a balancing of competing public interests, which is a question of fact and degree. This is distinguishable from the present case in an essential respect, as the question with which s 58(5) is concerned is the anterior and distinct question whether reasonable grounds exist for a claim that disclosure is contrary to the public interest.

19                  Justice Conti also refers to the generalised observation of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 381-382 that:

“Even so, the nature of commercial broadcasting and the grant of power … on the basis that ‘it appears … that it is advisable in the public interest’ indicate that the considerations which may be taken into account in determining whether a licensee is not or is no longer fit and proper are not closely confined.”

There can be no argument with this generalised observation, however, all it says is that the concept of the public interest allows a wide range of factors to be taken into account in circumstances where they are necessary to determine the ultimate question of what decision is in the public interest. It is not concerned with the question whether there is any basis for a claim that something is contrary to the public interest.

20                  In my view, in the present case, there has been no error of law by the Tribunal in approaching the matter on the basis that it is not necessary when considering s 58(5) of the FOI Act to carry out the process of balancing or weighing all aspects of the public interest or indeed to decide whether or not that ground will ultimately prevail.

Associate:

Dated: 2 August 2005

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

CONTI J

Introduction

21                  I acknowledge the assistance provided by Jacobson J in his Honour’s analysis of the circumstances and legal principles giving rise to the issues submitted for determination on this appeal, in relation to which Tamberlin J has signified his concurrence. The conclusions which I have reached would have required the remission of the proceedings to the Administrative Appeals Tribunal for redetermination according to law. The submissions presented to the Court on behalf of the appellant (in his capacity as Freedom of Information Editor of The Australian newspaper), both orally and in writing, were more lengthy and comprehensive than those of the Treasurer (represented of course for the purpose of the litigation by the respondent Secretary), and I have found it to be both necessary and appropriate to reproduce the substance thereof in detail in order to explain the basis for the dissenting views which I have reached. I should record that an amended notice of appeal was presented to the Court at the commencement of the hearing of the appeal without objection, which has contributed to the framework of the issues of construction arising at the instance of the appellant, each issue involving the operation of the Freedom of Information Act 1982 (Cth) (‘the FOI Act’). Jacobson J has framed six issues as arising on the appeal and has presented the same in terms of five questions which his Honour has derived from the appellant’s extensive written submissions. I will address essentially the same questions and answers in sequence, but will adopt perhaps more closely the framework of the headings to the appellant’s submissions.

The first purported question of law framed by the appellant – whether the Tribunal misdirected itself concerning the test of s 58(5) of the FOI Act as to whether there existed reasonable grounds for the claim that disclosure of the subject information would be contrary to the public interest

22                  By way of elaboration of this first and most critical question arising on the appeal, the submissions of the appellant framed three issues arising as to the operation of s 58(5) of the FOI Act, in or to the following effect:

(i) whether s 58(5) of the FOI Act required the Administrative Appeals Tribunal (‘the Tribunal’), in the course of its determination of the questions the subject of the appellant’s challenge, to balance the material aspects of the public interest postulated in the proceedings, and hence to mandate the balancing of the evidence tendered by the Treasurer relating to the public interest that the disclosure of confidential information adduced by the Treasurer would be contrary to the public interest within s 58(5), against the evidence tendered by the appellant, effectively on the behalf of The Australian daily newspaper, that such disclosure to the public would be in the public interest;

(ii) whether s 58(5) of the FOI Act required the Tribunal to undertake a so-called ‘2-stage approach’, comprising a threshold test of rationality in relation to each of the ‘generic’ reasons or grounds for non-disclosure propounded by the Secretary, followed by an examination of the documentation tendered in evidence, in order to determine whether those reasons or grounds could be linked to material aspects of the public interest; and

(iii) whether in any consideration of issues arising before the Tribunal as to the existence of reasonable grounds under s 58(5) the FOI Act, the evidence of a qualified expert witness on behalf of the Treasurer, whose opinion is not demonstrated to be unreasonable, operates to satisfy in favour of the Treasurer the statutory test, without any requirement for the balancing of that evidence against the countervailing evidence adduced adversely to the existence of any such reasonable grounds.

23                  The Treasurer is of course a Minister within the purview of the FOI Act and s 58 in particular. An affirmative answer to the question so framed in (i) above reflects the thrust of the appellant’s principal submissions on the appeal. Resolution of the issue raised in (i) above in favour of the appellant would effectively resolve the issues raised in (ii) and (iii) above adversely to the Treasurer. Those issues, if resolved in favour of the appellant raise questions of law concerning the true construction of the FOI Act, and s 58(5) in particular, and the operation of the FOI Act upon the undisputed facts and circumstances which have relevantly occurred, and which I will recount in the course of these reasons. The resolution of those issues does not involve the making of an evaluation comprising ‘… essentially one of fact or degree, and by its very nature it will be something that is not easily susceptible to judicial review’ (Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 at 124).

24                  The notion of balancing of varying considerations, points of view and interests bearing upon the resolution of an issue normally involves or requires a function or exercise of weighing or adjusting differences. It is reflected largely by the appellant’s framework for instance of the issue appearing in the first paragraph (numbered 1A) of the amended notice of appeal, reading as follows:

‘Whether, on its proper construction, the duty in s 58(5) of the Act that the Tribunal determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest requires the Tribunal to:

a. address and give proper and genuine consideration to all the relevant evidence or other material before it bearing upon the question whether such reasonable grounds exist, and not rely merely on past decisions of the Tribunal and/or an opinion of one witness not demonstrated to be unreasonable; and

b. address and give proper and genuine consideration to competing aspects of the public interest as raised in the evidence or arguments before it.’

25                  The appellant’s primary case on the appeal involves and relates to the omission of the Tribunal to undertake the exercise of balancing of the competing aspects of the public interest adduced in evidence at the Tribunal hearing, being an exercise said to be inherent in and intrinsic to the operation of s 58(5) of the FOI Act. In any evaluation of the appellant’s case, and of the authorities to which the Court was referred in the course of counsels’ respective submissions, it is to be borne in mind that the issues presented on the appeal do not arise directly in relation to what may be described as a document the subject of any one or more of ss 33 to 35 of Part IV of the FOI Act, being provisions which relate successively to matters or subjects, first as to national security, defence, international relations, secondly as to relations of the Commonwealth with the States, thirdly as to Cabinet documents and fourthly as to Executive Council documents. The issues here arising relate solely to so-called Internal working documents the subject of s 36 of Part IV of the FOI Act. That last statutory category here arising for consideration concerns a document which would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth, disclosure of which would be contrary to the public interest. Some reported decisions relating to ss 33 to 35 of the FOI Act were cited as bearing upon the operation of s 36. Differences in the language used in the various sub-sections of s 36 need nevertheless to be kept in mind.

26                  The respective submissions of the parties upon the first question of lawhere arising are described in summary in the reasons of Jacobson Jasreferrable to ‘[t]he proper construction of s 58(5)’. I have had the benefit of those reasons before writing this dissenting judgment. The operation of s 58(5) was described by the appellant as necessarily falling to be addressed by the Tribunal, not by any process involving so-called ‘one dimensional considerations’, but rather by way of a comprehensive analysis in the nature of a weighing or balancing exercise, said by the appellant to be necessarily required as part of the Tribunal’s statutory function of review. That weighing or balancing exercise, so the appellant contended, if it had been implemented by the Tribunal, would have necessarily and intrinsically involved the Tribunal in the deliberative task of evaluating the competing facets of the public interest involved in any consideration of issues as to non-government access to information in the possession of ministers, departments and public authorities, being here of course information bearing upon the two subjects of so-called income tax bracket creep and the first home owner’s scheme. Both subjects have apparently occupied at least the financial and political segments of the media for some time. The need for adoption of that weighing or balancing approach was contended by the appellant to inhere in the nature and extent of the process of determination of the existence or otherwise of reasonable grounds for resolution of the certified claim of the Treasurer that the disclosure of the document would be contrary to the public interest, within the scope of operation of s 58(5) of the FOI Act.

27                  The operation of s 58(5) for which the Treasurer contended, and which the Tribunal upheld, would confine the scope of the Tribunal’s role under the FOI Act to the determination of the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest to a basis or notion of public interest supportive of the Treasurer’s decision adverse to disclosure of a document, irrespective of the existence of competing grounds that disclosure of the document would not be contrary to the public interest, but instead would advance the public interest. The competing operation of s 58(5) for which the appellant hence contended was that the Tribunal’s obligation of determination the subject of s 58(5) inherently requires the Tribunal, in any competing evidentiary context such as here existed of substantial competing and conflicting expert testimony, to weigh and balance those competing theses as to rationality in order to reach the determination for which s 58(5) stipulates. Put another way, the appellant contended that the notion of reasonable grounds inherent in s 58(5) was not here to be determined in the vacuum of the Treasurer’s evidence adduced as to rationality, irrespective of the rationality of evidence tendered to the Tribunal in denial of the Treasurer’s evidence as to reasonable grounds. Thus the appellant’s contention was that the existence or otherwise of reasonable grounds is not to be determined by the Tribunal a vacuum of ministerial evidence of rational grounds.

28                  I find myself unable to accept, as an exercise of statutory interpretation, the viability of what I would describe as the Treasurer’s confined approach to decision-making by the Tribunal purportedly pursuant to s 58(5) of the FOI Act. In the present case, that approach was afforded expression by the Tribunal’s dismissal from ultimate consideration any balancing of the rationality of the grounds established by the Treasurer’s evidence from the rationality of the grounds established by the appellant’s evidence, in order to arrive at the statutory determination dictated by the subsection. By reason of the course which the Tribunal took in its approach to the Tribunal’s decision-making, the Treasurer paid no ultimate regard of significance to the evidentiary expert testimonies adduced by the appellant before the Tribunal, once his Honour had determined that the Treasurer’s testimonial evidence was sustainable and rational per se, and thus in an evidentiary vacuum.

29                  In the proceedings before the Tribunal, the appellant tendered an impressive array of testimony, including testimony of an expert nature, directed to ground(s) of public interest. That evidence was largely and essentially inconsistent with the Departmental evidence adduced by the Treasurer per medium of officers of the public service, being principally that of Mr Murray, the Executive Director, Fiscal and Corporate, of the Treasury. The two broadly based subjects which I have identified, and which were addressed by the contentious testimonial evidence placed before the Tribunal, unquestionably comprised and involved matters the subject of public interest. The testimonial evidence adduced by the Treasurer, in relation to those two issues, was shown by the appellant not to have been weighed or tested by the Tribunal in the course of its decision-making by reference to and against the countervailing expert evidence tendered by the appellant upon those two issues, at least for the purpose of or as a step in or aspect of the Tribunal’s determination on review of the Treasurer’s s 36(3) decision. The different and opposing ground of public interest to which the Treasurer’s s 36(3) certificate gave expression was thus held by the Tribunal to satisfy the description reasonable… for the claim that the disclosure of the document would be contrary to the public interest prescribed by s 58(5) of the FOI Act. That decision was accordingly made by the Tribunal upon the footing of the departmental testimonies alone, irrespective of the cogency of the competing testimonies of the appellant’s highly qualified witnesses, did without first undertaking any weighing or balancing exercise in order to resolve which testimonies most appropriately reflected the existence of reasonable grounds, or the rationality of groundsfor non-disclosure of the documents in the public interest.

30                  Keys to the operation of s 58(5) of the FOI Act lie in the framework of the preceding subsecs (1) and (3) of s 36, both of those subsections referring of course to the public interest. Moreover s 36(3) contains the expression subject to the operation of Part VI, which Part of the FOI Act contains the critical reasonable grounds provisions of s 58(5). It is thus subject to the operation of Part VI that the disclosure of a document covered by a certificate signed by a Minister purportedly in conformity with s 36(3) is conclusively… contrary to the public interest, and hence an exempt document (that is exempt from public disclosure) within the purview of s 36(1). A Minister’s satisfaction formed pursuant to s 36(3) is rendered subject to the Tribunal’s review of that satisfaction under the auspices of s 58(5), if the review is requested by an applicant. Hence, if an applicant for review so requests, the Tribunal must determine the question whether there exist reasonable grounds within the scope of s 58(5). The Treasurer acknowledged that the onus of establishing whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest is placed upon the holder of the office of Secretary (see in that regard s 61 of the FOI Act), being an onus found by the Tribunal below to have been duly discharged by the Treasurer. It would be of little comfort to a s 58(5) applicant to be afforded the benefit of the statutory onus cast on a Minister in circumstances where the Minister’s decision cannot be subjected to any balancing process of the kind for which the appellant contends.

31                  The text of the decision of the President of the Tribunal the subject of the present appeal at [77] was therefore that ‘… without determining whether it is my opinion or not, applying the approach I have stated that I will adopt, I conclude that reasonable grounds exist for the claim that the disclosure of each of the documents would be contrary to the public interest’. In my opinion, and as the appellant has duly submitted, that conclusion was not open to have been reached, according to the true construction of s 58(5), without his Honour having undertaken the task of determining whatever grounds existed, being not just those advanced by the Treasurer to the Tribunal in support of the proposition that the disclosure of the document would be contrary to the public interest within the purview of s 58(5), and which his Honour found to be the case per se and standing alone, but also those grounds advanced to the contrary of or at variance with that proposition, and without having weighed and balanced those respective grounds in relation to and against each other in order to determine whether reasonable grounds existed in favour of the claim for non-disclosure. In short, the appellant’s case was that the Tribunal erred in law by not implementing what it contended were the dictates of s 58(5). The President eschewed however the need for undertaking that deliberative function of weighing and balancing, in light of the evidence placed before him by the Treasurer, and did so irrespective of and notwithstanding the nature and force of the countervailing evidence provided by the appellant to the Tribunal. His Honour gave reasons for adopting that approach to his decision-making pursuant to s 58(5). The Treasurer articulated and supported that approach of the Tribunal in the course of submissions of his senior counsel made to the Full Federal Court on the present appeal.

32                  The task of resolving competing interests in relation to freedom of access to information upon subjects of public interest, such as was here involved at the Tribunal hearing, would doubtless have been a formidable one for the Tribunal to undertake, given the conflict of public interest in relation to any entitlement to such access by the media (such as The Australian national dailynewspaper standing behind the challenge below and on this appeal), and the extent of opposing expert testimony adduced by the respective parties upon the issue whether there exist(ed) reasonable grounds for the claim [of the Treasurer] that the disclosure would be contrary to the public interest. It was information concerning prospective legislative or regulatory reforms of established interest and concern to members of the public, on the one hand, and concerning preservation of the confidentiality of that information within government until its manifestation in any subsequent Government executive decision-making, on the other hand. There could be no issue in principle that media operations undertaken and media services provided in a free and democratic society have an inherent entitlement of access to information of public interest and concern, subject only to such lawful legislative, regulatory and common law constraints to the contrary as are delineated with clarity and certainty. The framework of ss 36 and 58 of the FOI Act, and the statutory context in which they appear, reflect a complex task of interpretation of potential, if not inevitable, controversy. It is understandable that the operation of Parts IV and VI of the FOI Act, and ss 36(3) and 58(5) respectively thereof in particular, would have the potential for controversy of the scope and dimension such as here arose before the Tribunal, both in terms of evidence and legal principle. So much is testified by the length and complexity of the Tribunal’s reasons for decision.

33                  The operation of s 58(5) of the FOI Act for which the appellant contended, and which falls for reconsideration on this appeal, was submitted by the appellant to be relevantly analogous to search warrant provisions of criminal legislation the subject of scrutiny for instance in George v Rockett (1990) 170 CLR 104. In unanimous reasons for judgment, the High Court there referred at 112-113 with evident approval to the observations of Fox J of this Court in Reg v Tillett; ex parte Newton (1969) 14 FLR 101 at 106, where his Honour adopted the following observation appearing in the reasons for judgment of Edwards J in Bowden v Box [1916] GLR (NZ) 443 at 444 in respect of a similarly worded provision:

‘… It is impossible to construe this enactment as an authority to a justice to issue a search warrant upon the oath alone of a constable or of any other person that “there is reasonable ground to believe that liquor is sold”, etc. So to hold would be to hold that the justice may discharge the judicial duty cast upon him by acting, parrot-like, upon the bald assertion of the informant.’

Hence the enunciation by the High Court at 112 in George v Rockett of its interpretation of the operation of legislation in that field of the general law, involving as it did the determination as to the existence or otherwise of a reasonable ground, to the effect that ‘… it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist’. Their Honours concludedat 113 that ‘[i]t follows that the issuing justice needs to be satisfied that these are sufficient grounds reasonably to induce that state of mind’.

34                  The present Full Court was reminded of the traditional approach of the general law, in the context of susceptibility to curial review of the exercise of statutory power conferred upon the executive, as to the operation of statutory expressions such as or similar to ‘has reasonable cause to believe’. Despite the purported degree of subjectivity involved in such contexts of statutory conferral of power or authority, there is an established principle, common ground in the present appeal, that ‘[t]he existence of this reasonable cause and of the belief founded upon it is ultimately a question of fact to be tried on evidence’ (Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1000 per Lord Wilberforce). Necessary for operation or application of that principle is however the need for determination of the correct construction of the relevant statute or regulation concerning its application to particular circumstances and governing the nature and scope of the decision-maker’s function. Counsel for the respondent Secretary submitted nevertheless that no question of law was here relevantly involved for resolution by the Full Court. The Full Court’s attention was drawn to dicta in Birdseye v Australian Securities and Investments Commission (2004) 76 ALD 321 at 325, to the effect that a question of law to be raised on an appeal from the Tribunal ‘should be stated with precision as a pure question of law’ (per Branson and Stone JJ at [18]), and to the well known dictum of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40. It is not however in my opinion reasonably to be disputed that critical questions of law here arise as to the true construction of the provisions of the FOI Act I have already identified, and their application and operation in relation to the controversial circumstances here involved.

35                  The appellant submitted that the Tribunal did not pursue the requisite comprehensive approach, reflected in the authority to which I have referred, to what the appellant described as the ultimate conclusions that were involved below. That shortcoming was said to be initially reflected in the Tribunal’s incorrect paraphrase of an aspect of the ratio of George v Rockett, that purported paraphrase being that ‘a person whose state of mind was reasonable even though other persons might come to different states of mind which were also reasonable’, and further because of the Tribunal’s incorrect description of the Legislature’s ‘… reduced role for the Administrative Appeals Tribunal when acting under subsec 58(5)’, which was described by the appellant as misconceived. Those misconceptions were said to have underpinned the President’s ensuing explanation at [23] of the task which confronted him being that ‘[i]n accordance with the above I propose to approach my task by asking whether the facts established before me are sufficient to support the claim that disclosure would be contrary to the public interest in the mind of a person guided by reason’, the latter expression originating also in George v Rockett. The hypothetical ‘person guided by reason’ whom his Honour exemplified, was at least principally the Treasurer’s leading witness Mr Murray, whose testimony in its essence was adopted to the exclusion of the appellant’s expert witnesses whom I will later identify, though not by reason of any weighing or balancing of Mr Murray’s testimony with the contrary testimonies of those expert witnesses. The basis for the principle explained by the President of the Tribunal in his reasons below was further submitted by the appellant to be incorrect, notwithstanding the same having been formulated by reference to at least two earlier Tribunal authorities identified in the following further passage of his Honour’s reasons for decision at [22]:

‘The way in which the test has been applied in practice can be seen in some lines of reasoning of Tribunal members. President O’Connor J included this statement in dealing with one document in Cleary at 222: “…[I]t is difficult to conclude that there is no reasonable basis for relying on this ground or that it is irrational, absurd or ridiculous...”

His Honour then cited Deputy President McMahon’s decision in Aldred and Department of the Treasurer (1994) 35 ALD 685 at 691:

‘It is, as Deputy President Todd observed, a “heavy thing for the tribunal to reject a certified claim”.’

The President’s above observation thus also included reference to re Cleary and Department of the Treasury (1993) 31 ALD 214, and additionally to re Porter and Community Services and Health (1988) 8 AAR 335, both being Tribunal decisions, the former of O’Connor J as President and the latter of Deputy President Todd. It is appropriate that I refer in temporal sequence to those as well as other mainly Tribunal decisions cited in the course of the submissions of the parties on the controversial issue as to the applicable test, and extract what appear to me to be relevant passages in those decisions.

36                  A convenient starting point for consideration of authorities, inclusive of the Tribunal decisions discussed or referred to by the parties, bearing upon the critical controversy arising on the appeal, that being the need or otherwise for the balancing of reasonable grounds for the claim that the disclosure is in the public interest in performing the review function enshrined in s 58(5), is that of re Waterford and Treasurer of Commonwealth of Australia (No 2) (1985) 8 ALN N37 at N44, where Deputy President Todd observed relevantly as follows:

‘… Nor does s 58(5) require a balancing between the grounds for a claim that disclosure would be contrary to the public interest and the grounds for a claim that disclosure would be in the public interest: All that s 58(5) requires is that there exist reasonable grounds for the claim that disclosure would be contrary to the public interest. The balancing aspect of s 58(5) only enters at the stage of assessing whether or not something is in the public interest. Having found that some of the respondent’s arguments support the claim that disclosure would be contrary to the public interest, and that those arguments taken together are weighty enough to constitute reasonable grounds for the claim to that effect, it follows that the document is an exempt document.’

It is difficult conceptually to rationalise and in practice to apply the distinction, in terms of ‘balancing’, which the above passage postulates.

37                  Incidentally, the Deputy President cited with approval in Waterford what Morling J had earlier said in re Peters and Department of Prime Minister and Cabinet (No 2) (1983) 5 ALN N306 at N307, as follows:

‘… the question is not whether this Tribunal holds that opinion. Rather the question is whether reasonable grounds exist for the claim that disclosure would be contrary to the public interest.’

That dictum is not however foreign to the notion of balancing of differing expert opinions for which the appellant here contended. Indeed, earlier in his reasons for decision, Morling J said ‘[i]n my opinion the public interest in grating Dr Peters access to the documents which have so far not been disclosed to him is far outweighed by the public interest in preserving confidentiality to the advance tendered to the Minister as to the manner in which the Senate question should be answered’, being language tending to reflect the appellant’s advocacy of the notion of balancing. That principle of construction which the appellant so advanced may be restated to a more explicative extent as follows: whether an assessment as to the existence or otherwise of reasonable grounds for a claim that disclosure of a document would be contrary to the public interest implicitly or inherently requires the giving by the decision-maker of proper and genuine consideration to all relevant material bearing upon the existence or otherwise of any such reasonable grounds, and to that end the adoption, where reasonably open or appropriate so to do, of a balancing exercise on the part of the decision-maker of or in relation to any differing propositions of the private litigant and the Minister.

38                  The issue of the construction of s 58(5) adopted by Deputy President Todd in Waterford was addressed in his subsequent reasons for decision in re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589 at 594-595. Though he there referred to an argument supporting non-disclosure in the public interest ‘weighing enough’, and as appearing ‘reasonable standing on its own’, he eschewed ‘simply introduc[ing] by the back door the balancing exercise which applies in relation to s 36(1)(b) in a case where no certificate has been issued’. Subsequently again in Porter at 338, Deputy President Todd made the following observation, to which reference appears in the passage of President Downes’ reasons above extracted:

‘To be “reasonable”, it is requisite only that they be not fanciful, imaginary or contrived, but rather that they be reasonable; that is to say based on reason, namely agreeable to reason, not irrational absurd or ridiculous… It follows that it is a heavy thing for the Tribunal to reject a certified claim.’

Downes J cited in purported support of Deputy President Dodd’s approach the dictum of Morling J in re Peters (ante).

39                  The approach of Mr Todd as to rejection of the requirement for balancing was purportedly adopted by the President of the Tribunal (Hartigan J) in re MacPhee and the Department of the Treasury (1989) 11 AAR 166, in a context where the Secretary of the Treasury had certified, pursuant to s 36(3) of the FOI Act, that the release of certain documents would be contrary to the public interest. After referring at 173 to Mr Todd’s statements relevantly in Rae, Hartigan J thereafter concluded as follows (at 173-174):

‘I have come to the view that in approaching cases where the applicant requests a review of a decision to issue a conclusive certificate the question for the Tribunal is whether reasonable grounds exist to support the certificate. If reasonable grounds do exist to support the claim then that is the end of the matter despite the fact that there may be other grounds relied upon, the reasonableness of which may be doubtful. Reasonable grounds are those based on reason…It is not enough to show that some other reasonable person could have concluded that other grounds could not have supported the issue of the certificate. What may be the conclusion of one reasonable person does not of itself exclude all other conclusions from the realms of reasonable possibilities…

It follows from what I have said that the Tribunal should not attempt to balance the grounds supporting the certificate against grounds supporting the contention that the issue of the certificate is unreasonable. This style of approach is akin to full merits review. Neither should the Tribunal approach the issue of whether there are reasonable grounds for the issuing of a certificate on the basis that such grounds can be presumed to be in existence unless it can be shown that they are in fact grounds no reasonable man could consider reasonable or they are grounds no reasonable man could rely on in reaching a decision to issue a certificate. The words of s 58(5) are clear – the Tribunal must simply determine if reasonable grounds exist. As I have said reasonable grounds are those based on reason.

…

To adopt an interpretation of s 58(5) that allows the Tribunal to enter into an examination of all the grounds, pro and con, is necessarily contrary to the clear intent of the legislation both in setting up the process under which persons may make application for access to documents that might otherwise be not possible or ignored and in providing a system, subject to review, for the grant or refusal of access to documents and for the certification of some documents such that the national interest is protected by refusing persons access. The Tribunal’s function under s 58 once called upon to review a decision to refuse access to a document in respect of which a certificate has been issued pursuant to s 36(3) is simply to determine one question. That is, do reasonable grounds exist for the claim that disclosure would be contrary to the public interest…’

I have difficulty in rationalising Hartigan J’s notion to the effect of ‘reason’ standing on its own or in a vacuum, without being susceptible to correction, modification or qualification when balanced against other competing or putative reasons for a proposition, a finding, a conclusion or a deduction. It is I think foreign to and at odds with the s 58(5) expression determine the question whether…’.

40                  I have already drawn attention to the present Tribunal’s reference to the decision of a former President of the Tribunal (O’Connor J) in Cleary, which is the next Tribunal decision in sequence. At 216, the following appears:

‘For par (b) [of s 36(1)] to apply, it is generally necessary for the tribunal to find that disclosure would be contrary to the public interest. In the absence of a conclusive certificate, this requires a balancing of competing interests including the public interest in the right to know… With the issuing of a conclusive certificate, the decision that disclosure is contrary to the public interest has been pre-determined by the minister. However, as the tribunal has before it an application for review of the decision refusing to grant access to the documents, the tribunal is required by s 58(5) to determine whether there exist reasonable grounds for the minister’s decision that disclosure of the documents is contrary to public interest.’

Why, it may fairly be asked, is the so described pre-determination of the Minister circumscribed to the extent postulated by O’Connor J when he or she undertakes his or her s 36(3) function. Her Honour said further at 220 that ‘[t]he test to be applied, once a conclusive certificate exists, is clear’, and reference was thereupon made to dictum of Davies J in the leading judgment of the Full Federal Court in Department of Industrial Relations v Burchill (1991) 33 FCR 122 at 126, where his Honour described the passage appearing at page 338 of the reasons for decision of Deputy President Todd in Porter which I extracted above at [38] as ‘adequately convey[ing] the concept’.

41                  The Treasurer adopted on the present appeal the view of the Tribunal, appearing at [21] of its reasons for decision below, that where the High Court referred in George v Rockett at 112 (infra) to the requirement for ‘… the existence of facts which are sufficient to induce that state of mind in a reasonable person’, it thereby postulated ‘a person whose state of mind was reasonable, even though other persons might come to different states of mind which were also reasonable’, and that so much reflected the meaning which the President thought the phrase ‘reasonable grounds’ has in s 58(5). It is however of importance to an appreciation of the appellant’s submissions on the present appeal that the appellant offered no quarrel with that postulation per se, so long as the original decision-maker engaged in the forensic exercise of balancing the competing views in evidence as to the existence or otherwise of reasonable grounds, and did so in a meaningful way before concluding upon his or her decision-making. The Treasurer sought to support the view of the Tribunal expressed at [21] to the effect that ‘[t]he form of s 58 shows that the legislature intended a reduced role for the Administrative Appeals Tribunal when acting under subs 58(5)’, being a role which apparently would not require the balancing of competing views as to reasonable grounds, once the decision of the Minister under s 36(3) was assessed to be reasonable per se. One difficulty which the President’s approach encounters is identification of the benchmark for the process or objective determination as to the existence of reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest, being an identification or process falling to be made, upon the Treasurer’s thesis, notwithstanding the existence of other grounds of public interest (or for that matter a single ground of public interest) available to be weighed by way of a forensic balancing exercise. Rationality or the quality of being rational, the possession of reason, or the reaching of a rational or reasonable view, in accordance with the George v Rockett thesis, is not to be objectively attained or achieved, according to the submissions of the appellant which I would favour, by a decision-maker exercising a statutory function of review in the absence of his or her balancing (or weighing) objectively differing and competing views not unreasonably open to be adopted.

42                  The Treasurer submitted that the approach taken by the President of the Tribunal below adversely to the appellant was further supported at least implicitly by the decisions of this Court, not only in Burchill, but also subsequently in Australian Doctors’ Fund Ltd v Commonwealth of Australia (1994) 49 FCR 478(Beazley J). I will address that submission shortly. Incidentally, as a result of research undertaken subsequent to the hearing by senior counsel for the respondent Secretary, it was stated that the judgment in Burchill having been delivered on 11 December 1991, the same could not have influenced the drafting of the amendments made subsequently to Part VI of the FOI Act, including those made in particular to s 58(5) by Act No 4 of 1992, which substituted a new paragraph (b) of sub-section (5A) of s 58 reading as follows:

‘(b) in a case where the certificate was given under subsection 33A(4):

(i) cause that document of an agency to be an exempt document for a reason referred to in subsection 33A(1); and

(ii) not cause that document of an agency to be a document containing matter the disclosure of which under this Act would be, on balance, in the public interest.’

I would observe that subparagraph (ii) above contains the words the disclosure of which under this Act would be, on balance, in the public interest. Neither party seemingly attributed any significance, one way or the other, to the inclusion of the words on balance in that amended section.

43                  The issue arising in Burchill concerned the operation of s 58(4) of the FOI Act in relation to Cabinet documents exempt from disclosure under pars (c) and (d) of s 34(1). As the presiding judge of the Full Federal Court in Burchill, Davies Jreferred with approval to the test framed by Deputy President Todd in Porter, and observed at 125 that s 58(4) posed for the Tribunal the question ‘whether there are reasonable grounds for the claim that the document meets the criteria for exemption’. At 126, his Honour cited the dictum of Starke J in Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155 that ‘[the Administrative Appeals Tribunal] has no authority to decide whether the finding [certificate] is correct, but only whether there is any material upon which the tribunal [certifier] could reasonably so find…’. In that regard, the relevant words of s 58(4) are the Tribunal shall… determine the question whether there exist reasonable grounds for that claim; perhaps significantly, no reference appears in s 58(4) to the public interest, in contrast to the case of s 58(5). Jenkinson J focused his concurring reasons at 127 to the effect that ‘… on the findings of the [AAT]… the only conclusion legally open to the Tribunal was that reasonable grounds existed at the date of its determination for the claim that the document in question was an exempt document by virtue of the operation of s 34(1)(c) of the [FOI Act]’. Ryan J rejected what he described at 133 as ‘the attractively presented argument… that s 58(4) of the FOI Act is concerned with a claim to be entitled to rely on the provisions of the FOI Act which exclude or limit rights of access to exempt documents; in other words, that it erects a test of whether it is reasonable in all the circumstances to maintain that claim’. It is I think apparent that any requirement for adoption by the Tribunal of a balancing exercise, prior to determining whether there exist reasonable grounds for the claim within s 58(4), as here advanced by the appellant in relation to the operation of s 58(5), was not presented for debate, and thus was not considered, in Burchill, though as I have said, the two subsections do not impose the same test for the Tribunal’s determination, thereby rendering Burchill distinguishable at least for that reason.

44                  The issue in Australian Doctors’ Fund arose in the context of a conclusive certificate signed by the Minister for Health under the auspices of s 36(1)(a) of the FOI Act, and involved the requirements of s 58(5) thereof which the Tribunal there below had found to have been satisfied. The applicant for relief had been refused access under the FOI Act to certain correspondence between the Minister for Community Services and Health and the Treasurer concerning the ruling of the Deputy Commissioner of Taxation that contributions to the medical practitioners’ fund there involved were tax deductible, being a ruling which had later been reversed. Beazley J (presiding as a single justice of the Federal Court) observed at 484 that ‘[i]n undertaking a review under s 58(5), the Tribunal is not concerned with balancing differing facets of the public interest’, and further at 489 that ‘[t]he Tribunal was saying no more in par 24 than it was not its function under s 58(5) to determine or to balance different aspects of the public interest, a task which the section does not permit’. Under the heading ‘[f]ailure to have regard to all the evidence’, her Honour referred at 492 to the limited scope of the applicant’s submissions in that case, in the following context:

‘Counsel for the applicant further submitted that the Tribunal failed to have regard to all of the evidence before it which strongly suggested that the documents in question had influenced the decision of the Deputy Commissioner of Taxation…

The manner in which the Tribunal fulfils this obligation depends upon the circumstances of each case. A mere failure to refer to a particular matter or document does not of itself amount to an error of law… there is no reference in the Tribunal’s reasons to the other four documents referred to in support of this ground… [t]he material in the documents is clearly relevant to the background of the matter… None of the matters contained in the documents in question were material facts upon which the Tribunal was required to make a finding as to whether there exist “reasonable grounds” for the claim that disclosure of the documents subject of the Minister’s certificate was contrary to the public interest. Accordingly I am of the opinion that the failure of the Tribunal to make any reference to them in its Reasons for Decision does not involve an error of law.’

45                  It was submitted by the appellant in the present appeal that ‘in so far as that decision stands contrary to what is put by the appellant here, namely as to the need for the decision-maker under s 58(5) of the FOI Act to undertake a form of balancing exercise as an essential part of the reasoning for his or her decision, the authority relevantly of Australian Doctors’ Fund should be overruled’. It is evident that her Honour was not afforded the benefit of carefully framed and extensive submissions concerning the operation of s 58(5) which have been provided to the Full Court in the context of the present appeal, and that her Honour was referred by counsel essentially to earlier Tribunal decisions which I have already identified. From my review of the authorities thus far undertaken, I think that there is sufficient force in the submission of the appellant that the authority of Australian Doctors’ Fund should be formally overruled, to the extent that it may be taken, irrespective of the observations I have just made, to have rejected the principle that the decision-making of the Tribunal should involve, in circumstances such as the present involving the operation of s 58(5), the implementation of a form of balancing exercise in terms of the public interest.

46                  Consistently in any event with the principle inherent in the appellant’s submission as to the need for undertaking a balancing exercise in the course of decision-making pursuant to legislative provisions such as s 58(5), the appellant invoked as here operative and prevailing as a principle of statutory construction the following dicta of the majority judgment of the High Court (Mason CJ, Wilson and Dawson JJ) in re Queensland Electricity Commission; ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, albeit stated in the context of industrial legislation:

‘Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. In this case the Commission was called upon to weigh in the balance two competing public interests. One was the importance of settling in its entirety the dispute initiated by the E.T.U’s log of claims. The other was the importance of leaving the dispute to be resolved by the State tribunal despite the limitations on its jurisdiction…’

Of course the majority judgment used above the word often, and not always, but the dicta reflects a reasonably analogous approach to the implications of legislation focused upon the public interest. I should add for completeness that Deane J uses (at 400) the not dissimilar description of ‘weighing process’ in the course of his dissenting reasons, as may be seen below:

‘Their ultimate decision [that is, of the Conciliation and Arbitration Commission] to refrain from a further hearing of that part of the dispute was reached as a result of a weighing process involving a number of identified public interest considerations. The starting point of that weighing process was not, however, either the prima facie right of the E.T.U. to insist upon the hearing of its application or the broad considerations of public interest…’

The provision with which their Honours in Queensland Electricity Commission were concerned with was s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth), which reads as follows:

‘s 41(1) The Commission may, in relation to an industrial dispute:

…

(d) dismiss a matter or part of a matter or refrain from further hearing or from determining the dispute or part of the dispute if it appears –

(i)                 that the dispute or part is trivial;

(ii)               that the dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State Industrial Authority; or

(iii)             that further proceedings are not necessary or desirable in the public interest…’

47                  The foregoing dicta in Queensland Electricity Commission does not appear to have been cited or referred to in the course of any subsequent FOI Act Part VI proceedings which have taken place since delivery of that High Court judgment. Nor does it appear to have been cited in any of the Tribunal or Federal Court cases to which I have referred to above, and it was not cited to the Tribunal below. However that dicta has been cited in various authorities involving statutory use of the expression ‘public interest’. Thus in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, it was observed by Toohey and Gaudron JJ at 381-382 that a reference to the public interest in s 88(2) of the Broadcasting Act 1942 (Cth) indicated that considerations to be taken into account were not to be ‘closely confined’.

48                  I find myself unable to agree with the majority reasons of the present Full Court concerning the scope of operation relevantly of s 58(5) of the FOI Act, and I would uphold the appellant’s submissions as to error of law on the Tribunal’s part in withholding from implementation of a balancing or weighing process in the course of its decision-making as to whether there existed before the Tribunal reasonable grounds for the claim that the disclosure of the [relevant documents] would be contrary to the public interest. In that regard the appellant did cause to be placed before the Tribunal a wealth of expert testimony in support of the appellant’s contention to the Tribunal that reasonable grounds existed for his claim that disclosure of the evidentiary material adduced by him before the Tribunal was not only not contrary to the public interest but in support and in favour of the public interest. I am therefore of the view that upon the true construction of that subsection, in its context relevantly with the other provisions of the FOI Act which I have addressed, the Tribunal was obliged in principle to weigh and balance the respective testimonies of the witnesses of the appellant with those of the respondent Secretary, in particular his principal witness Mr Murray, before determining the critical s 58(5) question arising as to whether there exist reasonable grounds for the claim that the disclosure of the relevant documentary material would be contrary to the public interest. I am unable to accept that the Legislature evinced the intention that the principal issue arising for resolution by the Tribunal, pursuant to s 58(5), is to be concluded upon the footing of the Treasurer’s satisfaction and of his consequential signing of a certificate pursuant to s 36(3) of the FOI Act, and of the testimony of the Treasurer’s witnesses presented to the Tribunal, for instance here comprising principally the Treasurer’s witness Mr Murray, without the need for balancing that evidence tendered by the Treasurer against the testimonial evidence adduced by an applicant in the position for instance of the present appellant.

49                  It is contemplated by s 36(3) that the conclusive certificate provisions therein stipulated take effect subject to the operation of Part VI of the FOI Act, and the duty and function relevantly of the Tribunal under s 58(5) of Part VI is that once satisfied that the document is of the kind to which paragraph 36(1)(a) applies, and if so requested by a person seeking disclosure of a document, to thereupon determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest. Hence if I may be repetitive, the existence of any such reasonable grounds would not be appropriately or effectively determined, according to the general law which I have sought to review, in the absence of an adequate exercise being first undertaken by way of the weighing and balancing of the evidence of the public interest relevantly to the contrary of the decision of the Minister the subject of review with the Minister’s evidence supportive of his or her decision. The circumstance that s 58(5) requires the Tribunal, on an applicant’s request, to determine the question whether there exists reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest, requires inherently for the Tribunal to undertake a balancing exercise in relation to and as part of its determination of the competing claims relating to the advancement and maintenance of the public interest in the course of deciding whether or not to make that determination. Or as I have earlier suggested, a determination as to the existence of reasonable grounds inherently requires not just a proper and genuine consideration of all relevant material bearing upon the existence or otherwise of reasonable grounds, but also the adoption, where reasonably open or appropriate so to do, of a balancing exercise of and in relation to any differing proposition of the private litigant and the Minister.

50                  I therefore think that the process of determination of the question whether there exist reasonable grounds for the claim for non-disclosure, in circumstances where the Tribunal is confronted with opposition to non-disclosure, requires the weighing and balancing of the grounds for non-disclosure as allegedly in the public interest with those grounds propounded by members of the public to the contrary, in order for the Tribunal to determine the reasonableness of those grounds for non-disclosure. The existence of reasonable grounds is thus not to be resolved or identified in the vacuum of an isolated field of consideration articulated by a Minister, untested by reasonable postulations of views and opinions available to the contrary for the purpose of the inherently requisite balancing exercise. To contend otherwise, as the Treasurer has done in lending support for the Tribunal’s decision below, would operate to deny to the statutory context and objective of s 58(5) the extent of effective operation which I think the legislation relevantly implies and indeed, requires. Rationality does not exist in a metaphysical vacuum, especially in the context of the elusive notion of the public interest, in the absence of a weighting exercise being undertaken by the decision-maker, as the test enunciated by the High Court in the context of the legislation involved in Queensland Electricity Commission which I have extracted above. Section 58(5) postulates the explicit notion of ‘determin[ing] [a] question’, not merely adopting one side or point of view where reasonable conflicting sides or views are propounded for similar resolution.

51                  Accordingly I am of the view, in conformity with the submissions of the appellant, that the Tribunal misdirected itself as to the test, as prescribed by and otherwise inherent in s 58(5) of the FOI Act, as to whether there exist reasonable grounds for the claim that the disclosure would be contrary to the public interest, by withholding from its reasoning exercise a balancing or weighing of the evidence of the appellant’s expert witnesses purportedly directed to the issues of public interest arising with the evidence adduced by the Treasurer and in particular from the Treasurer’s principal witness Mr Murray. That misdirection of the governing test constituted in my opinion an error of law, and did so contrary to the submission of the Treasurer that the grounds of the subject notice of appeal did not identify any question of law, being a submission I would therefore also reject. The earlier authorities which I have cited in relation to the operation of Part VI of the Act, mainly in Tribunal contexts, fall short in their rationalisation, directly or indirectly, of the operation of s 58(5) of the FOI Act in particular. The principal issue here raised by the appellant is one

of statutory construction, relating as it does to the correct test inherently required for the operation of s 58(5). It was not an error ‘… simply in making a wrong finding of fact’ (Waterford v Commonwealth (1986) 163 CLR 54 at 77 (per Brennan J)). I would observe in that regard that senior counsel for the Treasurer made reference in his written submissions to the circumstance that ‘ultimately [the Tribunal had] to be satisfied with respect to each document’ that reasonable grounds existed for the claims ‘… that the disclosure of the document would be contrary to the public interest’.

52                  I would therefore answer in the affirmative (and thus in favour of the appellant) the first and most critical question of law framed by the appellant for resolution by the Full Court, being that appearing in subpar (i) of [22] above, and upon that basis, I would have ordered that the proceedings be remitted to the Tribunal for re-determination of that question upon the basis and in the context of the evidence already tendered to the Tribunal, and otherwise according to law.

53                  There remains for completeness the resolution, within the scope of this first and principal question arising, the related issues of statutory construction the subject of subpars (ii) and (iii) set out in [22] above. They are issues which I think are merely supplementary to that the subject of par (i) which I have sought above to resolve. As to the so-called ‘2-stage’ approach the subject of subpar (ii), said by the appellant to have been wrongly adopted by the Tribunal in its approach to decision-making, the same was described by the appellant in the following terms:

‘The first stage involved the question whether, as a threshold matter, the [Treasurer’s] seven claims in the certificates were rational or logical. In determining that question, the Tribunal considered that it was relevant to have regard to prior Tribunal or Court decisions to see whether similar claims had been upheld. Likewise, it was relevant to have regard to opinion evidence adduced by the [Treasurer] as to whether such claims were rational or logical. If the threshold issue was determined favourably to the [Treasurer], the second stage of the test involved the Tribunal examining the documents in question to see if they could be linked to one or more of the 7 claims.’

54                  I have already identified the Tribunal and Court decisions to which the Full Court’s attention was drawn in the course of the present appeal, in particular by senior counsel for the respondent Secretary representing of course the Treasurer. The appellant submitted that the language of s 58(5) does not indicate that any two stage test is appropriate or otherwise required for the operation of that subsection’s review process, but rather that what is to be put in place is ‘simple and straightforward’, by merely directing the Tribunal to determine the question whether there exist reasonable grounds for the claim that the disclosure of the particular document would be contrary to the public interest. Moreover, so the appellant’s submission continued, the Treasurer’s analysis would introduce an unnecessarily complicated and unwarranted gloss on what was said to be clear statutory language. The second difficulty with the Tribunal’s analysis, as submitted by the appellant, was that by introducing in reality a two-stage test of the kind so described, the Tribunal’s review function would be denuded of any effective content. That was said by the appellant to be because, as the present dispute ‘vividly demonstrates’, the two-stage test presented ‘a very low barrier to review of conclusive certificates’. The appellant submitted moreover that it would be a relatively straightforward matter for a Federal government agency, engaged in the defence of a conclusive certificate under s 36, and involving one or more of the seven generic reasons relied upon in the present dispute, to point to earlier Tribunal decisions in which ‘those grounds [had] been upheld and to adduce evidence from serving Government employees in support of those “generic claims”’, if such further evidence would be even necessary at all in the light of existing Tribunal authority.

55                  Having explained that first ‘non-demanding threshold requirement’ (so-called by the appellant), any such second stage of the statutory test asserted by the appellant to arise, namely whether those so-called generic claims were applicable to the documents in question, that is, whether the same were covered by what was further said by the appellant to be effectively class claims, was submitted by the appellant to present ‘little or no challenge for a respondent Minister’. The appellant did not dispute that the Tribunal’s review function under s 58(5) is more restricted than the Tribunal’s normal review function of determining what is the correct or preferable decision on the basis of all of the material placed before it. What the appellant contended in the present context of discussion was that the Tribunal’s two-stage approach effectively reduced its determination function to little more than a formal exercise, notwithstanding, as was said by the appellant to have here occurred, that the appellant had adduced an impressive array of expert evidence which contradicted the claims of the Treasurer, at the very least in their aggregate, the subject of the conclusive certificate and ‘the agency’s evidence’ (that is that of the Treasury) in support. Yet according to the respondent Secretary’s submissions, it was unnecessary for the Tribunal to confront and resolve the viewpoints presented by the appellant’s expert witnesses in opposition to those of the Treasurer, and nothing more was required of the Tribunal than to accept and implement what was the subject essentially of the Treasurer’s principal witness Mr Murray.

56                  As to the first stage identified by the appellant, the Tribunal was said by the appellant to have taken merely the following steps in purported fulfilment of its contentious decision-making process:

(i) the Tribunal reviewed the seven generic reasons or grounds of the Minister appearing in the two conclusive certificates; in so doing, it assessed whether the relevant ground could be shown to be based in reason; the full text of each of those seven reasons or grounds are reproduced in the following principal paragraph of these reasons for judgment;

(ii) the President next considered whether previous Tribunal decisions had accepted any such reasonable grounds as being based on reason, observing in that regard at [52] of his reasons as follows:

‘Where a document genuinely attracts consideration of a claim which has previously been upheld by the Tribunal under s 36, a finding that “there exist reasonable grounds for” [the claim that the disclosure of the document would be contrary to the public interest]may not require a great deal more.’

(iii) on those two footings, the Tribunal accepted the validity of the Treasurer’s claims as to those seven classes of evidentiary disclosure operating in contravention of the public interest; thus for example in [35] the Tribunal’s reasons for decision, the President made the following finding:

‘The claim that there is a need for direct, free and confidential communications with Ministers and their staff is not an irrational claim. Nor is the claim that to defeat this need is against the public interest. A former President of this Tribunal and a current Deputy President have both upheld the claim with respect to communications with Ministers. The present case seeks to include Ministers’ staff. That does not seem to me to involve any extension. A communication with a member of a Minister’s private staff is effectively a communication with the Minister.’

The expression above ‘not an irrational claim’ may be observed. Thereafter at [76]-[77], the President made the following further observations and findings:

‘Each of the documents certainly relates to options not settled, is provisional in nature and contains different versions of estimates, projections, costings and other numerical analysis which are not explained. The documents contain jargon and acronyms which would be meaningless to the average reader. The average reader would have difficulty in understanding the conclusions and even greater difficulty in understanding the reasoning and methodology.

To my mind all of the documents provided a substantial factual basis for concluding that they fall within claims (c), (d), (e) and (g). Those are rational grounds. They have support in the authorities and in the evidence. Accordingly, without determining whether it is my opinion or not, applying the approach I have stated that I will adopt, I conclude that reasonable grounds exist for the claim that the disclosure of each of the documents would be contrary to the public interest.’

The full text of those claims (or what I shall denote as reasons or grounds) above denoted as (c), (d), (e) and (g) are reproduced below within the next main paragraph of these reasons by the classification ‘reasons or grounds’;

(iv) having accepted the reasonableness of those seven reasons or grounds for adoption, the President supported that conclusion by reference to the affidavit evidence of the Treasurer, and in particular, that of its most senior officer Mr Murray; the Tribunal’s findings in that regard were in the following terms at [66]:

‘I can say that the evidence given in private was supportive of the claims made in the conclusive certificates. This was particularly true of the evidence of Mr Murray. Although his evidence did not address the conclusive certificate claims directly it did address the generic grounds… The importance of this evidence is that it supports the existence of an alternative reasonable opinion from the opinions expressed by the applicant’s witnesses. Mr Murray was cross-examined. The cross-examination did not demonstrate the evidence to be unreasonable. It is not for me to decide which of the opinions of the applicant’s and respondent’s witnesses are preferable. That is not the subs 58(5) task. Provided there is a reasonable basis for an opinion and there is evidence to support it the test in subs 58(5) will be satisfied. The evidence of Mr Murray as to the reasonableness of the claims in the conclusive certificates affirms the findings of previous Tribunals that there is a reasonable basis for claims of the kind represented by each of the claims made in the conclusive certificates here.’

As already foreshadowed, the critical issue arising is whether the foregoing approach adopted by his Honour the Tribunal President sufficiently aligns with the s 58(5) description of the determination falling to be made. I observe that the language so adopted by his Honour was at least not strictly in accordance with the precise text of s 58(5).

57                  As foreshadowed, I now reproduce below the seven reasons or grounds purportedly supporting one or more of the Treasurer’s conclusive certificates as they appeared in the President’s reasons for decision at [22]; I will later in these reasons refer to those seven classes or grounds by reference merely to the lettered prefix of the relevant reasons or ground reproduced below:

‘(a) Officers of the Government should be able to communicate directly, freely and confidentially with a responsible Minister and members of the Minister’s office on issues which are considered to have ongoing sensitivity and are controversial and which affect the Minister’s portfolio.

(b) Officers should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of these processes and the public record.

(c) The release of a document that discusses options that were not settled at the time the document was drafted and that recommends or outlines courses of action that were not ultimately taken has the potential to lead to confusion and to mislead the public. The release of such potentially misleading or confusing material would not make a valuable contribution to the public debate and has the potential to undermine the public integrity of the Government’s decision making process by not fairly disclosing reasons for the final position reached. Decision-making processes are multi-layered and the documents reflect partially considered matters and tentative conclusions.

(d) The release of the material would tend to be misleading or confusing in view of its provisional nature, as it may be taken wrongly to represent a final position (which it was not intended to do) and ultimately may not have been used or have been overtaken by subsequent events or further drafts.

(e) The release of documents that contain a different version of estimates, projections, costings and other numerical analysis that cannot be put into context because of the absence of any explanation of the variables used or assumptions relied upon has the potential to lead to confusion and to mislead the public. The release of such potentially misleading or confusing material would not make a valuable contribution to the public debate and has the potential to undermine the public integrity of the Government’s decision-making process by not fairly disclosing reasons for the final position reached.

(f) The preparation of possible responses to questions in Parliament is a very sensitive aspect of the work of departmental officers and it is appropriate that briefing and other material produced on a confidential basis in the preparation of those responses, remain undisclosed. The release of such documents would threaten the protection of the Westminster-based system of Government.

(g) The release of documents that are intended for a specific audience familiar with the technical terms and jargon used, has the potential for public misunderstanding in that the contents of the documents could be misinterpreted. These documents were not intended for publication and publication would be misleading as the documents do not contain sufficient information for an uninformed audience to interpret them correctly and reasonably.’

58                  As to the next or second stage said to have been adopted by the Tribunal by way of its application of the s 58(5) test, the same was described by the appellant as involving the Tribunal’s consideration of the particular documents produced to the Tribunal by the Treasury, the same having emanated originally, and for at least the most part, from the Australian Taxation Office. What was described by the appellant as ‘the high point of this reasoning’ of the Tribunal the subject of the second stage was said by the appellant to be found in the Tribunal’s reasons for decision below at [76]-[77] (already extracted in these reasons), being of course the reasoning of the Tribunal for withholding documents from disclosure upon the footing of the same being contrary to the public interest within s 58(5) of the FOI Act, and being so contrary upon ‘rational grounds having the support of evidence’. That evidence so referred to the Tribunal comprised of course principally Mr Murray’s testimony. His evidence was asserted by senior counsel for the appellant to have been ‘directly contradicted by substantial expert evidence called on behalf of [the appellant]’. Certainly the Tribunal eschewed the function of weighing and balancing Mr Murray’s testimony against the testimonies of the appellant’s expert witnesses. By reason of the Tribunal’s evidentiary approach, the President considered it to be unnecessary to any resolution of the reliability, logic etc of Mr Murray’s evidence the measurement of it against the conflicting expert testimonies of the appellant’s witnesses. Thus the appellant’s summary of contentions was to the effect that the Tribunal having accepted in principle those seven reasons or grounds of public interest as falling within subs 36(1) and (3) the text of which I have extracted, the Tribunal merely reviewed the facts essentially in the form of documentation in order to determine whether those grounds for the Treasurer’s decision-making constituted ‘rational grounds’.

59                  That approach to reasoning and decision-making adopted by the Tribunal was contended by the appellant to reveal four errors as to the nature of the correct statutory test required to be applied.

60                  The first error asserted by the appellant was that the Tribunal below thereby gave recognition to ‘class claims’ of the specification earlier described in the ‘conclusive certificates’ given by the Minister. The Tribunal acknowledged that class claims had been rejected in the context of public immunity claims, and had been criticised in freedom of information contexts, referring to what had been observed by Deputy President Hall in Fewster and Department of Prime Minister and Cabinet (1986) 11 ALN N266 at N267 as follows:

‘The grounds stated in the s 36 certificate did not constitute reasonable grounds for the claim that disclosure of the documents would be contrary to the public interest. Two of the grounds were properly classified as “class” claims (relating to the need for confidentiality in high level communications between Ministers, and for candour and frankness in advice to Ministers). Class claims expressed in those broad terms could not sustain a claim of exemption under s 36(1)(b). Nevertheless, the need to ensure candour and frankness and to maintain confidentiality are relevant facets of the public interest to be considered in an appropriate case.’

The Tribunal below also made reference to criticisms of class claims appearing in Sankey v Whitlam (1978) 142 CLR 1 at 43 (per Gibbs ACJ) and at 62-63 (per Stephen J), and additionally in Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 28-30 (per Black CJ, Gummow and French JJ). The Tribunal made yet further reference to the principle adopted by Deputy President Todd in Rae at 594 (by reference to an earlier Tribunal decision there identified), to the effect that the task of the Tribunal in considering a conclusive certificate (that is a s 36(3) certificate) is to determine whether reasonable grounds for the claimed exemption ‘exist’, and not whether the grounds relied upon by the Minister were reasonable. In that further context, the Tribunal below proceeded to indicate at [29] of its reasons for decision that ‘… the grounds relied upon by the Minister will guide me but they will not necessarily be the only matters I consider’,and further that ‘… it will usually be necessary to know something about each document to enable a judgment to be made.’ It was the appellant’s further contention in that context that ‘… in fact the Tribunal’s approach was to accept the 7 classes, and to simply review the documents to see if they could be characterised as falling within them’, being of course the seven reasons or grounds denoted (a) to (g) that I have above reproduced.

61                  The point sought above to be made by the appellant in submissions was further submitted to be revealed most starkly in relation to the Minister’s reason or ground (f) relating to the release of possible responses to Parliamentary questions. Having accepted the reasonableness of that claim by reference to three earlier Tribunal decisions, the present Tribunal’s subsequent review of the relevant documents was said by the appellant to have been confined to the issue whether they fell within ground (f). Hence having stated at [87] of his reasons that he had read each of the documents carefully, the President concluded below that ‘[i]t seems to me that grounds (a) and (f) are justified with respect to each of them’, and confirmed thereafter at [91] that ‘[f]or reasons I have already given I consider that the test in subs 58(5) is satisfied with respect to such documents…’.

62                  The second alleged error on the part of the Tribunal the subject of the appellant’s contentions on the appeal was that by giving the emphasis that it did to rationality as one of the two main bases of reasoning, the President ‘… failed to grapple with the need for it (that is for the Tribunal) to be satisfied on the facts proved before it that a reasonable person could be satisfied that release of the particular documents would be contrary to the public interest’, the appellant emphasising that ‘rationality is relevant but not sufficient’, and referring again to the passage in Rossminster which I have earlier cited in these reasons.

63                  The third alleged error on the part of the Tribunal, said to be similar to the second above, was said by the appellant to be revealed more clearly in relation to ‘the treatment’ of past Tribunal decisions, which the appellant described as made ‘… on the facts presented in those cases’. It was submitted in that context that ‘… [t]o invoke such decisions as the primary basis for answering the s 58(5) test is to abdicate the Tribunal’s duty to satisfy itself on the material before it that there are reasonable grounds for the claim that disclosure of the particular documents would be contrary to the public interest’, and further that ‘[t]he Tribunal failed to decide for itself the ultimate issue’, citing in that context the following passage in George v Rockett at 113:

‘… the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind.’

The appellant therefore contended that ‘… it was the reviewer applying the test who had to be satisfied that sufficient grounds exist reasonably to induce the state of mind’. The appellant acknowledged that the Tribunal below did say at [52] that ‘… it is ultimately for me to be satisfied with respect to each document before me’, but contended that by the reliance it placed on past decisions, the Tribunal ‘… deviated from this role’. Thus the Tribunal’s acknowledgment, in the passage of its decision where the President concluded that ‘… reasonable grounds exist for the claim that the disclosure of each of the documents would be contrary to the public interest’, there was prefixed the explanation that the President did so ‘… without determining whether it is my opinion or not’ (at [77]).

64                  The appellant next contended that the Tribunal’s reliance on past Tribunal decisions, in resolving the issue whether the claims were rational or reasonable at a generic level, was also ‘objectionable’, because no allowance was made for the circumstance that the concept of the public interest is not rigid or immutable, but ‘may vary from time to time’. So much was said to have been recognised by Davies J, as then President of the Tribunal, in re Howard and Treasurer of the Commonwealth of Australia (1985) 7 ALD 626, where at 635, his Honour observed:

‘Presently, there must often be an element of conjecture in a decision as to the public interest.’

It was in that context that Davies J went on to observe that ‘[t]he disclosure of the documents under the FOI Act could prejudice future frank consultation by the government with outside bodies. And the disclosure of the documents could lead to confusion and debate about taxation proposals which were not in fact adopted by the government.’

65                  The fourth alleged error, being similar to that concerning reliance upon past decisions, was contended by the appellant to be manifest in light of the Tribunal’s confirmation of its conclusion by reference to its ‘blanket’ and uncritical acceptance of the evidence of the Minister’s principal witness Mr Murray. Despite the Tribunal stating at [56] that ‘… the test itself, as I have found it to be, requires a consideration of all the available reasonable opinions’, the appellant submitted that ‘… the Tribunal in fact wholly disregarded that evidence’. The appellant thereafter made the following critical submission:

‘In stating that consideration needed to be given to all available reasonable opinions, the Tribunal was not intending to state that it needed to reconcile or choose between contradictory opinions. Rather, the Tribunal was saying that, as long as there was one witness who was prepared to state that there were reasonable grounds for the claim that disclosure would be contrary to the public interest, the Tribunal was entitled to accept that evidence, as long as it was rational and notwithstanding that that evidence was directly contradicted by other witnesses. In essence, on the Tribunal’s approach, if one witness expressed an opinion in support of the reasonableness of the grounds (generically), and that opinion was not demonstrated in cross-examination to be unreasonable, then that was enough to satisfy the test (or at least to confirm the satisfaction already reached by reference to past Tribunal decisions and rationality).’

66                  Upon that footing the appellant contended that the President again failed to decide the ultimate issue, being an issue which required an evaluation of the relevant evidence. The appellant accepted that ‘[w]hilst it may be that there is some room for some differences of opinion, to regard as acceptable any statement of opinion by a witness is to shirk the task required of the Tribunal’, particularly since ‘… the Tribunal’s approach was essentially to search for the lowest common denominator, in the form of any opinion or past Tribunal decision in support’.

67                  Moreover the appellant further highlighted what it asserted to demonstrate that ‘… the Tribunal’s approach is wrong in law’, namely that ‘[b]y proceeding on the basis that it was sufficient that Mr Murray’s evidence supported the Treasurer’s generic grounds in the conclusive certificate (even though there was persuasive evidence to the contrary before the Tribunal), the Tribunal was effectively denying that the concept of “the public interest” will often involve competing or conflicting elements which have to be confronted and resolved.’ The appellant’s submission continued that ‘[f]ar from grappling with those competing claims, the Tribunal absolved itself of that task by simply focusing on only one side of the equation, namely those matters which were relied upon in support of the claim that disclosure would be contrary to the public interest’, that approach of the Tribunal being described as ‘… inconsistent with the well-established acceptance of the proposition that the public interest invariably involves competing facets’. Reliance was thereby placed on the High Court dicta I have earlier extracted from the reasons for the majority judgment in Queensland Electricity Commission.

68                  The requirement described by the High Court in that passage, which related to the public interest there addressed depending ‘on a balancing of interests, including competing public interests’, and thus involving ‘a question of fact and degree’, was contended by the appellant to be no different in circumstances where the Tribunal is exercising its review function under s 58(5) in order to determine… whether there exist reasonable grounds for the claim that disclosure of the document would be contrary to the public interest. The Tribunal decisions of Waterford and MacPhee were submitted by the appellant to be wrongly decided in appearing to find that no balancing exercise was involved in the very concept of public interest appearing for instance in s 36(3). It was said by the appellant that the more narrow review role carried out by the Tribunal under s 58(5) is sufficiently defined by its phraseology the claim that the disclosure of the document would be contrary to the public interest, and further that there was no warrant for introducing an additional gloss to public interest which might obviate the need for the balancing of the competing aspects of that notion.

69                  Essentially for the reasons I have given for my resolution of the first issue the subject of subpar (i) of [22] above, it would follow that the second and third issues the subject of subpars (ii) and (iii) of [22] above should be answered in favour of the appellant’s primary case raised on the appeal, and thus in the negative. Whether or not it may rightly be said that the Tribunal was entitled to adopt the testimony of Mr Murray, in preference to that of the appellants’ expert witnesses to the extent of inconsistency, it was in my opinion impermissible, upon what I think to be the true construction of s 58(5), for the Tribunal to have concluded upon the reasonableness of Mr Murray’s testimony, and any incidental evidentiary material supplementary thereto, without first undertaking the balancing and weighing exercise for which the appellant has contended to be necessary as well as appropriate in relation to that testimony, and also of course in relation to the opposing testimonies of the appellant’s witnesses, and to do so broadly in line with the approach articulated in the passage cited from Queensland Electricity Commission. I am unable to discern from the language and context of s 58(5) of the FOI Act how the Tribunal could rightly support its restricted approach to the operation thereof, which it implemented below. The statutory expression reasonable grounds is not prefixed by any, yet that is in effect the operation which the Tribunal effectively gave to s 58(5).

70                  Moreover I am of the opinion that the preceding issues I have outlined in [60], [62] and [63] should also be resolved in favour of the appellant and therefore be further remitted to the Tribunal for determination according to law.

71                  I would add that it is with respect understandable that the President of the Tribunal would seek to follow and implement the line of largely Tribunal authority adopted by his predecessors, and which until now may not have been challenged in this Court, at least to the extent and scope of the present litigation, as well as the single justice decision of this Court in Australian Doctors’ Fund (which was not afforded the benefit of the very comprehensive researches and reasoning extended on the present appeal). Moreover as I have already indicated, I do not think that the reasons evident in the Full Court’s decision in Burchill travel the controversial distance adopted by the Tribunal below. The statutory expression reasonable grounds for the claim imports the notion of reason to be determined by the balancing of conflicting contentious claims, being a task which the Tribunal withheld from undertaking for the reasons it gave. I do not think that s 58(5), upon its true construction, reflects a statutory intention to the effect that it is enough for the Tribunal to be satisfied with theevidence adduced by a Minister as to the existence of reasonable grounds, in the absence of weighing that evidence adduced in the same proceedings to the contrary. To hold otherwise would place the statutory notion of reasonable grounds virtually in a vacuum on each litigious dispute. The same observation holds in my opinion in relation to the s 58(5) notion of public interest. I am unable moreover to accept the proposition of statutory interpretation that reasonable grounds may be based on reason, if upon a subjection of the same to a balancing exercise against the hypothesis of other reasonable grounds at variance with the former, the latter may be seen by a decision-maker to prevail, or else to outweigh the former.

The second purported question of law framed by the appellant – whether the Tribunal erroneously failed to deal with the appellant’s evidence and arguments presented to the Tribunal

72                  The appellant’s submissions raised a second principal issue arising in the context of the s 58(5) debate, involving what the appellant described as a further question of law. That issue related to the manner in which the Tribunal dealt with the appellant’s evidence adduced at the Tribunal hearing, and with what were submitted to be the erroneous conclusions to which the Tribunal was led to reach by the nature and process of the presentation of the Treasurer’s case. I preface this segment with the explanation that the appellant adduced evidence from two distinguished former senior public servants, Mr Alan Rose and Mr Anthony Harris. The Tribunal acknowledged their expertise and distinguished careers in the public service. Both testified as to the degree, based upon their experience in Commonwealth public administration which was undeniably extensive, of public detriment which would be sustained if documents of the kind sought by the appellant were to be released by the Treasurer to the public at large. The appellant also adduced evidence from Mr Stutchbury, a distinguished journalist employed by The Australian newspaper as Editor, and from an accomplished economist, Professor Dixon.

73                  In relation to the first of the Minister’s seven alleged reasons or grounds for the issue of the conclusive s 36(3) certificates which I have already reproduced in these reasons, being that relating to the freedom of Government officers to communicate confidentially with the Minister and denoted by the prefix (a) in [57] above, Mr Rose testified that:

‘In my experience release of even very sensitive and controversial documents does not impede public servants’ direct and free communications with Ministers. An effective officer in the modern Public Service understands his or her role is to provide free and frank advice in a properly accountable manner.’

The appellant described that evidence moreover as not opinion but ‘observational’ in character, and observed that Mr Rose was ‘uniquely qualified’ to testify on the subject, since he was the only witness to have attained the position of departmental secretary. Mr Rose was not cross-examined and the Tribunal duly accepted the authenticity of his evidence.

74                  Mr Harris’ evidence spoke of his experience of public disclosure as improving the quality of bureaucratic advice, and as being conducive to a frank and fearless manner of presentation on behalf of government. He said moreover:

‘I have known the majority of senior officers of the Federal Treasury… for over 20 years. I do not believe that group of senior officers would at any time contemplate compromising the integrity of their costing exercises in order to meet some political or other objective.’

Mr Rose and Mr Stutchbury testified to similar effect.

75                  It was therefore contended by the appellant that the Treasurer’s claims to protection of the frankness and candour of public servants in their communications with Ministers served to illustrate the error of what the appellant described as the lowest common denominator approach apparent in past Tribunal decisions, and of the evidence of the Treasurer’s witnesses in the present proceedings. I was referred to the decision in Cleary (ante), being a ‘conclusive certificate’ case involving the consideration of economic forecasts, where at 221, the then President of the Tribunal (O’Connor J) observed that the candour issue had been frequently addressed by the Tribunal, but that presiding members had ‘… equally frequently been unwilling to accept the argument in the absence of compelling evidence’. On the basis of the evidence placed before her Honour, it was held not to have been established that the candour of the advice to the Minister would suffer as a result of the documents being made public. Rather the evidence suggested, according to the appellants’ contention as to the findings in Cleary, that future documents might have to contain additional (the appellant’s emphasis) contextual material, or that the relevant bureaucratic advice could still be conveyed to the Minister, albeit by different means; thus her Honour’s conclusion in Cleary at 221 was in summary:

‘I can see no rational basis for accepting the “candour” argument’

being a conclusion reached in the light of all (the emphasis of the appellant) of the evidence placed before the Tribunal in that case, and not just in the light of a limited scope of evidence, such as was here adduced by the Treasurer alone from members of the public service, and which was considered by the Tribunal to be sufficient and acceptable for resolution of its review of the Treasurer’s s 36(3) certificate. It was therefore contended by the appellant, in the light of the finding in Cleary, that no rational basis for the claims, such as were here advanced by the Treasurer referrable merely to ‘generic assertions of rationality’, was in truth established. Nor was the reliance by the Treasurer on the challenged evidence of government witnesses sufficient, without more, for valid decision-making. It was on that footing that the appellant sought to establish this second segment of submissions as raising a question of law.

76                  Support was sought by the appellant from the speech of Lord Reid in Conway v Rimmer [1968] AC 910 at 952, where the following appears:

‘Virtually everyone agrees that Cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest. But I do not think that many people would give as the reason that premature disclosure would prevent candour in the Cabinet…’

Reference was further made to subsequent dictum in Sankey v Whitlam (1978) 142 CLR 1 at 97, where Mason J (as he then was) referred to the above passage and observed:

‘I agree with his Lordship that the possibility that premature disclosure will result in want of candour in cabinet discussions or in advice given by public servants is so light that it may be ignored…’

I should record that Cabinet documents as such are not apparently the subject of any issue here arising.

77                  The appellant drew attention also to Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 at 563, where in the context of (inter alia)s 36(6)(a) of the FOI Act, which relates to the exception from the operation of s 36 of reports… of scientific or technical experts, Beaumont J referred to Sankey v Whitlam, and made the following determination concerning the notion of contrary to the public interest contained in s 36(1)(b):

‘Given that the public interest is not a static concept, in my opinion, full disclosure of the reports, at this stage, would, on balance, be contrary to the public interest. The unchallenged evidence is that, in submitting her “interim” reports, Miss Pearlman did not seek information or comment from the applicant. No doubt, this course was adopted for sound practical reasons, presumably in the interests of expedition. But an incomplete inquiry conducted on such a limited footing could only lead to the formation, at that point, of views or opinions of a tentative or provisional kind… However, publication of such views or opinions, provisional as they may be, could create a misleading, perhaps unfair, impression in the minds of readers who do not have the benefit, if there be any, of knowing the response of the applicant. The formation of such impressions in the public mind could, in turn, influence the decision-makers in their review of the situation. In my opinion, the provisions of s 36(1) are satisfied in the present case so far as any opinion, advice or recommendation is expressed in the reports.

On the other hand, different considerations apply to any “raw” or purely factual material in the reports. In this respect… the public interest will not, on balance, suffer in the event of the disclosure of such matters. In any event, the provisions of s 36(5) direct their disclosure. In my opinion, s 36 does not exempt from disclosure so much of the reports as consists of purely factual, investigative material.’

His Honour’s above reference to ‘[u]nchallenged evidence’ would not be apposite in the present context of the Tribunal hearing below, in the light of the impressive array of testimonial evidence adduced by the appellant. Moreover his Honour’s qualification as to purely factual, investigative material is to be observed.

78                  Addressing specifically the Treasurer’s second reason or ground for protection the subject of s 36(3) certificates and denoted by the prefix (b) in [57] above, which relates to the necessity for government officers to ‘… be able freely to do in written form what they could otherwise do orally’, the appellant drew attention to the fact that any ‘suggestion’ as to high level public servants engaging in improper disclosure was moreover inconsistent with Australian Public Service Values as set out in s 10 of the Public Service Act 1999 (Cth). Those values provide inter alia that the Australian Public Service is openly accountable for its actions, and further that the Service is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice… and moreover that Service employees are required to behave in a way that upholds the APS values…’ (s 13(11)). Hence the appellant’s contention that it was appropriate, in the present context of discussion, that civil servants should be presumed to adhere scrupulously to their ethical obligations, and in particular would be unlikely to be deterred from communicating their advice in written form.

79                  The appellant provided further evidence from its expert witnesses to the effect that it is not a credible prediction that public servants would cease putting advice in writing for fear of subsequent disclosure, since the reasons which would lead or induce them to put matters in writing would be in reality too strong. Those reasons were said to include the complex and compendious nature of the advice (which was for instance here called for), the need for effective communication with a time-pressured Minister, the input usually or often provided by other senior public servants, the need to inform and obtain approval from other departmental officers, and the legitimate desire of senior public servants to protect their recommendations and other input. So much was said to be supported by the testimonies of Messrs Rose, Harris and Stutchbury. In any event, the appellant pointed out that for both so-called legal and practical reasons, government officers would not be able to assume that even oral communications would remain entirely confidential, even as to matters of the highest political sensitivity or asserted sensitivity, as Mr Harris exemplifiedin his affidavit evidence below concerning the notorious ‘Whiteboard’ affair:

‘53. For that reason neither officers nor Ministers or their officers are able to engage in oral communication on the basis that there would be enduring confidentiality of that communication.

54. As a consequence this ground appears to me to be based upon a fact which does not exist – that fact being that “any oral communication would remain confidential”.

55. A very good example of this in recent years was the Parliamentary Inquiry into an environment grants program which became known as the “Whiteboard” affair.

56. That inquiry related to communications within a Minister’s office and between the Minister, staff in her office and senior officials of her Department, which communications occurred principally orally. The relevant written work was done on a whiteboard.

57. The detail of all of those communications was required to be publicly disclosed before that Parliamentary Inquiry.’

Mr Rose testified that in all of his experience, he never became aware of an occasion where an officer of the public service did not make a record of advice because of the operation of the FOI Act, or because of the prospects of public release. Mr Harris testified moreover that he did not accept that an officer of the Treasury would choose not to write down advice of significance because of a concern that it might become public, and if public disclosure did occur, Mr Harris explained in that event, ‘… it would be a choice [made] by a public servant not to fulfil his or her responsibilities as a public servant’.

80                  In further rejection of the Treasurer’s reasoning that release of certain of the documents subject to his conclusive certificates had ‘… the potential to lead to confusion and to mislead the public’, and ‘… would not make a valuable contribution to the public debate…,’ the appellant submitted that such reasoning underestimated both the intelligence of the community and the ability of government to address those concerns if they arose, and that much of the information freely released by governments is in any event of a technical nature and of great complexity, such as budget papers, and would be confusing to many people, at least if viewed in insolation. Moreover the appellant submitted that the Minister’s claim that the release of such information would not make a valuable contribution to the public debate was said by the appellant to be built on invalid pre-suppositions as to what is ‘a valuable contribution’, and further that what constituted the notion of ‘public integrity’ in the Government’s decision-making process was far from clear in the evidence adduced on the respondent Secretary’s behalf. The appellant suggested that it appeared to refer to the government of the day preferring not to have public discussion of options it did not in fact pursue, and it was therefore contended by the appellant that for the Minister to claim that so much was a reasonable ground for non-release was ‘merely to beg the question’. There is in my opinion force in those contentions of the appellant, supported as they are by the impressive array of qualified witnesses who testified in the appellant’s case

81                  The appellant next asserted that grounds (a) and (b) set out in [57] above, were redolent with the notion that unless material will make a contribution to public debate whereof the Treasury would approve, or was in terms with which the Treasurer would concur, the material must not be released; the appellant submitted that so much ‘may reflect a view of what is in the Treasurer’s political interest, but was ‘… anathema to the free debate, in the marketplace of ideas, which is an essential component of Australia’s democracy’. The appellant further asserted that a consideration of what other options could and should have been pursued is the very essence of what politics and government is about, and that when issues are of such public significance as the present two under consideration (referring to the subjects of the so-called first home owner’s scheme and income tax ‘bracket creep’), the release of information as to other options available is a fortiori in the public interest, and not contrary to it.

82                  I was also referred by the appellant in the above context to the following affidavit evidence of Mr Rose:

‘42 Where a document provides the considered views of a Federal Department on policy options on issues upon which the Government has made and announced decisions, a very useful contribution to the public debate is the disclosure to citizens of a fuller range of options that were considered by Government and the assessment by a responsible and informed Public Service of the impacts of such options.

43. Where a document contains technical analysis by experts most likely to be found within the Federal Public Service a very useful contribution to the public debate is the disclosure to citizens of that analysis thereby enabling interested citizens to develop a fuller and more sophisticated understanding of the questions in issue.

44. Where a document provides an analysis which is based upon data held only within the Federal Government a very useful contribution to the public debate is the disclosure to citizens of that analysis which enables interested citizens to better understand the facts underpinning the matters dealt with in the analysis.’

83                  Similar affidavit testimony was provided by Mr Harris and Mr Stutchbury. Mr Harris observed for his part in his affidavit evidence as follows:

‘72. The finding by the Treasurer that release of the documents has the power to undermine the public integrity of the Government’s decision making process by not fairly disclosing reasons for the final position reached is highly implausible. The documents in question relate to policy options which were not implemented. They are likely to deal with options other than those finally adopted by Government. Release of the documents would enable electors to have regard to options which have not been adopted by Government. They are very unlikely to disclose analysis of the final position reached by Government.

73.              It is unclear to me how the Treasurer’s finding that the documents reflect partially considered matters and tentative conclusions could impact on the public interest. If the documents on their face record that they reflect partially considered matters and tentative conclusions the potential to cause confusion and mislead the public which is a concern to the Treasurer would not appear to arise. In my experience it is highly improbable that the Treasury would have provided advice to the Treasurer or his office on matters which the Treasury had only partially considered or on which the Treasury had only reached tentative conclusions without making it clear to the Treasurer and the Treasurer’s office in the advice provided the limitations on the consideration of the matter to that time.’

84                  Mr Stutchbury in his affidavit evidence pursued a similar theme, as illustrated below:

‘73 The release of the documents on Bracket Creep would make a valuable contribution to the public debate because they would enable members of the public to understand better issues such as:

(a) the Government’s approach to managing for Bracket Creep;

(b) whether the Government chose to incur higher levels of economic risk in order to obtain greater party political opportunity; and

(c) the real value of the tax cuts announced in the last two budgets.

74. The release of the documents on Bracket Creep would also make a valuable contribution to the public debate because it would assist economists and economic modellers working for State Governments, the media, private businesses and Universities better understand and model aspects of the tax system and the economy.

75. The release of the documents on FHOS would make a valuable contribution to the public debate because they would enable members of the public to understand better issues such as:

(a) the Government’s approach to managing the dynamics of the housing industry across the cycle;

(b) the economic risks that the Government was prepared to accept in return for possible benefits;

(c) the effectiveness and efficiency of the expenditure of almost $4 billion of public money on the FHOS; and

(d) the net contribution, if any, which the FHOS made to housing affordability for recipients of assistance.’

(FHOS is an abbreviation for the first home owner’s scheme).

85                  Professor Dixon testified as to what he, and economists such as himself, would be able to make of data as to ‘bracket creep’ of the kind addressed in the proceedings, and concluded that by putting the information to such uses would be ‘… a means of providing independent analysis to the electorate about the Government’s management of the economy’, while Mr Harris further testified that it was ‘… common place, particularly in economic policy, for the public generally to rely on informed experts such as those employed within academia and the media to read and understand documents released from Government and communicate the import of those documents’.

86                  It was in the context of the appellant’s comprehensive evidence adduced from highly qualified and respected experts that I have merely partly summarised or extracted that the appellant made the broad submission that the Tribunal simply failed to address the cogent testimony said to have been adduced and presented by the appellant. Although the President of the Tribunal recorded in his reasons for decision that the expert testimonies of the appellant’s witnesses would be considered (see for instance [57] of his Honour’s reasons below), the appellant submitted that a fair reading of his Honour’s reasons was that ‘… the Tribunal simply failed to address them’ in any meaningful way. That was submitted to be because of his Honour’s perception that the precedents set by earlier authorities, in particular by past Tribunal decisions, to the effect that where there was sufficient evidence tendered by a minister in denial of a claim for disclosure in the public interest, that was enough, irrespective of the extent of the evidence presented to the Tribunal to the contrary of that ministerial position. So much accorded with my reading of his Honour’s reasoning apparent in his judgment below. Those circumstances constituted in the appellant’s submission the omission of the Tribunal below to undertake its appointed task, being a failure to give proper genuine and realistic consideration to the appellant’s evidence adduced below, and which thus amounted to breach of procedural fairness, a failure to exercise jurisdiction in the sense of a failure to address a central question raised by the appellant as applicant and by the material placed before the Tribunal (thereby citing Chief Executive Officer of Customs v AMI Toyota Ltd (2000) 102 FCR 578 at 592-593 per Hill, North and Merkel JJ), a failure to provide reasons in accordance with s 43(2) of the Administrative Appeals Tribunal Act (1975) (Cth) (the ‘AAT Act’), and a failure properly to apply the law to the facts.

87                  The principles thus enunciated by the appellant concern questions or issues of law being principles material to the formation of the Minister’s satisfaction for the purposes of s 36(3), and to the determination of the Tribunal for the purposes of s 58(5). I am unable to accept the Minister’s submission in response that the appellant’s ‘complaint’ was merely that the Tribunal did not rely on evidence submitted by the appellant as compelling his desired conclusion that the Tribunal did not give ‘careful’ consideration to the appellant’s evidence (the Minister referring in that context to [53]-[62] of the Tribunal’s reasons for decision). Nor do I accept the Minister’s submission that it was no part of the Ministerial duty of review under s 58(5) to balance competing interests. Whilst there is arguable force in the Treasurer’s submission that those purported principles constitute no more than factual matters issues propounded for determination, I would prefer the view on balance that the same reflect ultimately an issue of law arising from the controversial construction and operation of the FOI Act and s 58(5) in particular. The issue the subject of this second question involves and reflects the crystallisation and operation of the Tribunal’s erroneous view of the application of s 58(5) of the FOI Act to the circumstances in evidence placed before the Tribunal, and in my opinion should be answered in the affirmative.

The third purported question of law framed by the appellant – whether the Tribunal erred in law in its construction of the public interest appearing in s 36(3) of the FOI Act

88                  The appellant outlined its case for establishing this alleged error upon the footing that in order for the Tribunal to reach a conclusion as to whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest within s 58(5), it would be necessary for the Tribunal to have ‘an appropriate understanding of the notion of public interest in the context of s 36 in particular, and the FOI Act in general.’ The appellant pointed out that the notion of public interest is not at large, because otherwise s 36(1)(b) ‘would be meaningless as a requirement’. The expression public interest appears in the FOI Act in relation to a number of other exemption provisions, and the Full Court was referred to ss 33A, 39, 40 and 44 in particular. Other examples may be found in ss 21(1), 29(5) and 30A(1)(b)(ii). It was thus said by the appellant to be critical to the Tribunal’s assessment of the public interest here material to direct itself to the boundaries of that notion or concept, and thus to be a question of law. That assessment in the appellant’s submission the Tribunal failed to undertake.

89                  The present Full Court was referred to errors allegedly manifested in particular in [59]-[60] of the Tribunal’s reasons, which included in part the following:

‘59.… But there may be another public interest, in permitting confidential communications with Ministers of the Crown and their advisors particularly where release of such documents might have some adverse effect on the ordinary operations of government. This public interest may conflict with a public interest in disclosure of important information available to government. The primary role of government is to govern. Interference with the smooth carrying out of that role will be against the public interest… (the emphasis in non-italics is that of the appellant)

60.… However there remains a legitimate potential public interest in letting government get out with its role without necessary intrusion and distraction. Provided the latter is a reasonable view it will be difficult to upset a conclusive certificate based on it.’

It was submitted by the appellant that the passages extracted above did not reflect legitimate aspects of the public interest for the purposes of that notion in the FOI Act, and s 36(3) and s 58(5) in particular, or if they did, the same were required in any event to be balanced with competing facets of the public interest, and further that it is an intrinsic feature of FOI legislation that its operation by citizens tends to disrupt the smooth functioning ‘behind closed doors’ of bureaucracies and governments. There is I think substance in that submission, so far as it extends.

90                  It was next submitted by the appellant that ‘[t]o accept these matters are legitimate and decisive reasons against disclosure would contradict the purpose and nature of the [FOI] Act [and] would seriously undermine its continued effective operation’. It was said to be one thing to accept that there may be room for reasonably differing opinions, but that those opinions must be consistent with the object pervading the FOI Act as to access to information in the possession of Government (s 3(1)). The appellant contended that regard must be had in particular to s 3(2) of the FOI Act which reads as follows:

‘It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.’

That object extends to creating a general right of access to documents in the possession of Ministers’departments and public authorities (see pars (a) and (b) of s 3(1)). There is also force in that submission, so far as it goes. A Senate Standing Committee said of the FOI Bill in 1978 that there were three justifications for that then proposed legislation, being in summary the rights of individuals, governments being open to public scrutiny, and public participation in the processes of policy making and of government itself.

91                  In his affidavit evidence, Mr Rose made the point that bureaucracies have traditionally opposed FOI legislation and resisted its operation, and he cited passages from the Australian Law Reform Commission Report No 77 headed ‘Open Government: Review of the Federal Freedom of Information Act 1982’ in support of that thesis. Mr Rose was well qualified to testify on the matters he addressed, having been President of the Australian Law Reform Commission for five years commencing from 23 May 1994 (during which time the aforementioned Australian Law Reform Commission review of the FOI Act was undertaken), and prior to that, Secretary to the Attorney General’s Department of the Commonwealth from 1989. Two of those passages which Mr Rose cited merit reproduction in full:

‘Agency culture a factor in the success of FOI

4.12 The culture of an agency and the understanding and acceptance of the philosophy of FOI by individual officers can play a significant part in determining whether the Act achieves its objectives. A negative attitude, particularly on the part of senior management, can influence an agency’s approach to FOI and seriously hinder the success of the Act in that agency.

Still a certain level of discomfort

4.13 There are many officers in the federal public service who have a positive attitude to FOI and work hard to administer the Act in accordance with its spirit. Despite this high level of acceptance by many individual offices there still appears to be a certain level of discomfort within the bureaucracy with the concept of open government. Some observers consider it may well take a generational change before there is a good working relationship with the FOI Act in the public sector generally.

“It can fairly be said that much has been achieved in 12 years by government and bureaucrats in adapting to the new concepts and culture that FOI brought with it. Some areas of controversy still remain, and the balance between providing information and maintaining some secrecy is yet to be struck. As time goes by and a larger number of public servants grow up with FOI, the capacity of the public sector to live and work with FOI will increase.” (J Cain, ‘Some Reflections on FOI’s Early Years’ (1995) 58 FOI Review 54, 58).

Others have a less optimistic view of the progress made to date.

“It is my sad conclusion… that with few exceptions the agencies of government have taken the Act as a guide to where they should dig their trenches and build their ramparts.” (M Paterson, Submission 94).

Whatever the extent of the problem, it is clear that the Act is not yet accepted universally throughout the bureaucracy as an integral part of the way democracy in Australia operates. The continuing resistance may relate to the increasingly direct accountability of public servants and their resultant loss of anonymity…’

92                  The Court was referred by the appellant in the present context to Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 231, where McHugh J made the following observations in the context of his discussion of the implied rights of freedom of communication in relation to elections, and the prohibition on broadcasting political matters during elections:

‘Only by the spread of information, opinions and arguments can electors make an effective and responsible choice in determining whether or not they should vote for a particular candidate or the party which that person represents.’

Moreover the Court was further referred by the appellant to the circumstance that the FOI Act was enacted shortly after the reasons for judgment in Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39, where Mason J (as he then was) said as follows (at 53):

‘… It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.

Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.

The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public’s interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality.’

Those observations are perhaps less directly on point to circumstances such as the present, where public interest concerns included considerations material to Government budgeting strategies for an ensuing fiscal year. However it can scarcely be said that those observations have no bearing at all upon the issues arising at the Tribunal hearing.

93                  The importance of freedom of information legislation in the Australian system of government was highlighted, in the context of ministerial obligations to answer questions in, and to table documents to, the New South Wales Legislative Council, in Egan v Willis (1998) 195 CLR 424 at 451, where the following appears in the joint reasons for judgment of Gaudron, Gummow and Hayne JJ:

‘… It has been said of the contemporary position in Australia that, whilst “the primary role of Parliament is to pass laws, it also has important functions to question and criticise government on behalf of the people” and that “to secure accountability of government activity is the very essence of responsible government”. In Lange v Australian Broadcasting Corporation, reference was made to those provisions of the Commonwealth Constitution which prescribe the system of responsible government as necessarily implying “a limitation on legislative and executive power to deny the electors and their representatives information concerning the conduct of the executive branch of government throughout the life of a federal Parliament”. The Court added [in Lange at 561]:

“Moreover, the conduct of the executive branch is not confined to Ministers and the public service. It includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature.”

In Australia, s 75(v) of the Constitution and judicial review of administrative action under federal and State law, together with freedom of information legislation, supplement the operation of responsible government in this respect.’

It was submitted by the appellant in that context that what is reasonable cannot be divorced from other relevant statutory contexts in which Government for the time being operates, and hence that claims for exemption, including those based upon a certificate have conclusive effect by statute, fall to be understood in the context of the particular statute.

94                  All of those matters and issues were said by the appellant to illustrate that the definition of the boundary of what are reasonably open opinions, concerning when disclosure may be against public interest, cannot be a matter of ‘finding one opinion – especially that of a serving senior bureaucrat – nor can it be a matter of simply assessing what might be said to be plausible, rational or supported by some earlier Tribunal decision’. Moreover it was submitted that boundaries are to a significant extent defined by the legal context containing the reference to the public interest. There is I think cogency in that submission, consistently with the reasoning I have favoured in answer to the first two questions of law raised by the appellant.

95                  It was further submitted by the appellant that the correct approach to be taken, in the context of the statutory expression in the public interest, being an expression used frequently in the FOI Act, including of course in ss 36(3) and 58(5),is reflected in a long line of judicial precedents which have addressed that expression in different statutes. In O’Sullivan v Farrer (1989) 168 CLR 210, which involved the public interest in a liquor licensing context, it was pointed out in the joint judgment of Mason CJ, Brennan, Dawson and Gaudron JJ as follows (at 216):

‘… the [Liquor] Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable… given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”’ (the latter citation being from Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (per Dixon J as he then was).

That dicta was said by the appellant to have similar force in relation to the provisions of the FOI Act. A ‘discretionary value judgment’ tends to imply a context of conflicting interests and claims requiring resolution.

96                  In the present context the dicta I have cited earlier from Queensland Electricity Commission assumes importance in relation to the appellant’s ‘balancing’ thesis of competing claims concerning the public interest. Incidentally, the statutory notion of public interest is usefully described by the following observation of Lockhart J in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 at 245, in the context of legislation empowering the Department there involved to stop clinical trials, once aware that the same were ‘contrary to the public interest’:

‘The public interest is a concept of wide meaning and not readily limited by precise boundaries. Opinions have differed, do differ and doubtless always will differ as to what is or is not in the public interest.’

97                  The appellant contended that the Tribunal below misdirected itself in relation to the significance of confining its ultimate findings substantially to the extensive opinion testimony of the senior bureaucrat Mr Murray, and further misdirected itself and failed to take account of relevant considerations, by not taking into ‘real account’ the significance of disclosure by government agencies to the operation of the Australian system of responsible and representative government. No proper consideration, it was further contended, could have ignored those evidentiary features, at least in the case where the seven classes or grounds of the Treasurer purportedly relied upon in the two conclusive certificates (being the classes earlier extracted in [57] of these reasons) manifested a so-called ‘blurring of the lines between political or bureaucratic self-interest and the public interest’. The notion of public interest, even in s 58(5) cases, was described as ‘not about finding a lowest common denominator’, but involved the confrontation of aspects of the public interest in appropriate cases, such as the present. There is I think clear substance in those contentions of the appellant.

98                  The appellant sought moreover to identify three other errors, of a supplementary nature in its approach to the present statutory notion of public interest, each of which was submitted to be of sufficient significance to require remission to the Tribunal for reconsideration. The first such error was said to be that in considering the Treasurer’s reasons or grounds (c), (d) and (e) earlier extracted, in a context of the potential for certain documents to mislead or cause confusion, the Tribunal stated at [43] that ‘[c]laims such as those raised here will not be available in cases where applicants want to check documents relating to themselves’. The Tribunal nevertheless distinguished that circumstance from the release of ‘… misleading information about a topic of general interest when the purpose of the application is to gain access to general information or to government policy relating to such information’. The appellant pointed out that it has long been accepted that release of a document under the FOI Act amounts to a release ‘to the world’, and that a request for information did not depend upon the particular nature or motivation of the applicant for disclosure, the Tribunal citing in that regard Dwyer and Department of Finance (1985) 8 ALD 474 at 482, where the following appears in the reasons for judgment of a Full Tribunal (Davies J and Messrs Balmford and Craik):

‘…A document released under the FOI Act is made available to the public at large. The only exception is in relation to personal records… The FOI Act is not the appropriate vehicle by which to enforce private rights or compel the performance of private obligations…’

That view was said by the appellant to be based on the stated object of s 3(1)(b) of the FOI Act as to creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities. The appellant submitted that the Tribunal in that case ‘… erred in apparently accepting the legitimacy of disclosure of some documents which had the potential to cause confusion, but not others, depending on these things’. I recognise the existence of some force in this further supplementary submission of the appellant. However I am unable to accept that the procedure the Tribunal adopted, which involved a practical procedural course, can be characterised as involving any error of law, nor incidentally did the same lead to any injustice in any practical sense.

99                  The second alleged error propounded by the appellant in the context of the present question or issue was asserted to be the Tribunal’s misconstruction of the appellant’s argument below that the Treasury had the means to avoid confusion by explaining documents released or by putting the same in context. The Tribunal said in that regard at [49] as follows:

‘This argument wrongly assumes that correcting information will come to the attention of persons reading the documents disclosed. The ability of the Treasury to explain or correct will not adequately correct the problem. In any event, the Act does not provide that an exempt document can cease to be exempt if the Commonwealth or its relevant agency can publish further information which will correct the circumstance which caused the document to be exempt.’

The appellant contended that the Tribunal misconstrued the further issue thus raised by the appellant with the Tribunal, being whether disclosure… would be contrary to the public interest within s 58(5), and that in addressing that issue, ‘… it was appropriate and permissible to consider practical realities and options for the department’, and that there could not be any public interest against disclosure if the asserted potential for detriment could be readily remedied. That factor the Tribunal was said to have omitted to assess, and was submitted to constitute relevant error of law on its part. I am not persuaded that such was the case.

100               The third alleged error propounded by the appellant in the present context was its response to the appellant’s contention below that the claims for exemption should be viewed with deep scepticism, since at the beginning of the Tribunal hearing, the Treasurer released parts of documents to the appellant, albeit that other parts remained nevertheless ‘covered’ by the conclusive certificates. Although the Tribunal acknowledged at [51] of its reasons for decision below that there ‘… is force in this argument’, it nevertheless determined as follows:

‘… However, the witnesses who admit errors in their evidence and correct them, rather than defending earlier evidence which is wrong, are sometimes the most reliable of witnesses. While I will take this criticism into account I am not sure that a respondent in the freedom of information claim which is constantly reviewing its decisions and releasing further matters when that seems to be appropriate should be criticised for this.’

So much was said by the appellant not to address the precise issue so raised with the Tribunal and presently the subject of review. The appellant acknowledged that it was ‘… commonplace and commendable that respondents release further documents during a hearing’, but explained that the issue here raised by the appellant was that the Treasurer ‘made a point of stating that the parts of documents were released outside the [FOI] Act as envisaged by section 14 of that Act, and did so here, even though the conclusive certificates remained in place and covered some of the documents released’. The appellant thus submitted that the Treasurer did not change his mind as to whether or not the documents were exempt, and hence allowed the release of documents outside the operation of the FOI Act, while continuing nevertheless ‘to defend a certificate’, which remained unamended, whereby it was ‘… solemnly certified that release of these documents was contrary to the public interest’. That course of action, termed ‘bizarre’ by the appellant, was contended to ‘cast real doubt on the validity of the claimed public interest against disclosure of those and other documents, and on the Tribunal’s conclusion upholding the conclusive certificate in respect of those and the other documents’. I am not persuaded that the Tribunal thereby committed any error of law. In that regard, the Tribunal’s reasons below at [121] contained the following amongst its concluding paragraphs:

‘I will determine that all other documents covered by the conclusive certificates are within par 36(1)(a), not within subs 36(5) or (6) and that there exist reasonable grounds for the claim that disclosure of each of the documents (not already disclosed) would be contrary to the public interest.’

101               I am therefore of the opinion that although this third question does principally raise a question of law concerning statutory construction, and should be answered in the affirmative, I do not think that any identifiable and sustainable error is exposed in respect of any of the three subsidiary or collateral matters further raised by the appellant.

The fourth alleged question of law framed by the appellant – whether the Tribunal erred in the procedure it adopted during the Tribunal hearing as to the taking of testimonial evidence in private

102               The Tribunal excluded the appellant and his legal advisers from the hearing of the proceedings during part of the time during which it received the testimony of the Treasurer’s witnesses Mr Murray (to whom I have of course already referred) and Mr Gallagher. Thus at [64] the Tribunal recorded as follows:

‘… I permitted Mr Murray and Mr Gallagher to give some oral evidence in a hearing held in private from which the applicant and his legal representatives were excluded.’

In so doing, the appellant submitted that natural justice was denied by the Tribunal.

103               The Tribunal recorded the following in its reasons for decision in relation to its refusal to permit the appellant to cross-examine Mr Murray (the appellant was incidentally represented at the Tribunal hearing by the same counsel who appeared for him on the appeal):

‘65. The most significant evidence given by the respondent’s witnesses I cannot disclose. This seems to me to be required by subs 58C(3) even though much of this evidence was disclosed to the applicant. I can disclose the evidence relating to the internal working documents issue and the relevance issue but that evidence was mostly confined to describing documents and largely does not call for repetition.

66. I can say that the evidence given in private was supportive of the claims made in the conclusive certificates. This was particularly true of the evidence of Mr Murray. Although his evidence did not address the conclusive certificate claims directly it did address the generic grounds I identified in par [58] and provided support for each of the grounds in the conclusive certificate. The importance of this evidence is that it supports the existence of an alternative reasonable opinion from the opinions expressed by the applicant’s witnesses. Mr Murray was cross-examined. The cross-examination did not demonstrate the evidence to be reasonable. It is not for me to decide which of the opinions of the applicant’s and respondent’s witnesses are preferable. That is not the subs 58(5) task. Provided there is a reasonable basis for an opinion and there is evidence to support it the test in subs 58(5) will be satisfied. The evidence of Mr Murray as to the reasonableness of the claims in the conclusive certificates affirms the findings of previous Tribunals that there is a reasonable basis for claims of the kind represented by each of the claims made in the conclusive certificates here.

67. The evidence of the other Treasury witnesses was more directly concerned with each of the documents. This evidence linked the documents with the claims and incidentally provided support for the claims. There is evidence from one or other of the Treasury witnesses other than Mr Murray addressing each document I must consider.’

104               It was submitted by the appellant that the Tribunal was obliged to include within the scope of its reasons, or at least within those aspects of its reasons made available to the appellant, its findings based on the evidence of significance tendered on behalf of the Treasurer, though without disclosing material which was exempt material. In that regard, s 63 of the FOI Act reads as follows:

‘Tribunal to ensure non-disclosure of certain matters

(1) In proceedings under this Part, the Tribunal shall make 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 referred to in subsection (1).’

Section 43(2B) of the AAT Act reads in that regard as follows:

‘Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.’

In omitting to provide reasons relevantly affecting the appellant, the Tribunal was said by the appellant to have been denied natural justice.

105               The appellant explained that the Tribunal’s conduct of the hearing of the appellant’s review application was affected by a misunderstanding of the nature of a private hearing to the extent governed by the FOI Act and s 58C(2) in particular, which requires no more than the ‘exclusion of the public from the hearing’, and neither required nor authorised the exclusion of the appellant and his legal representatives from the hearing. The appellant complained in particular that the Tribunal refused to permit the appellant or his legal representatives to be present when the hearing touched upon the contents of the documents claimed by the Treasurer to be exempt, either directly or indirectly. At [12] of the reasons for his earlier decision of 13 July 2004, the President of the Tribunal recorded the following:

‘I will approach the hearing of this matter on the above basis. Where evidence touches upon the contents of documents which are claimed to be exempt neither the applicant nor his legal representatives will be permitted to be present. Where it does not, although the evidence is still within subs 58C(2), I will determine, as I am bound to do pursuant to subs 58C(3), who should be permitted to be present. In any case where subs 58C(2) applies I will, pursuant to par 58C(3)(b), give directions prohibiting publication.’

Section 58C(2) and (3) relates to the conduct of Tribunal proceedings in private, during which evidence or information is given or documents are produced, and s 58C(3)(b) authorises the Tribunal to give directions concerning the conduct of proceedings in private.

106               The appellant contended that any such exclusion should have been (but was not in the events which happened) limited to preventing the disclosure to the appellant of matter or information which was exempt matter within s 63(2)(b) of the FOI Act, being matter in a document or information as to the existence or non-existence of a document within s 25(1) of the FOI Act. Section 25(1) relates to the giving by a Government agency or Minister of documents exempt by virtue of ss 33, 33A or 37(1) (relating to national security, defence or international relations; documents affecting relations with Australian States; and documents affecting enforcement of law and protection of public safety). I have of course set out already the full text of s 63. It was submitted by the appellant furthermore that the President thereby reasoned that for the purposes of s 58C, an applicant to the Tribunal in the context of a FOI Act matter was in no different position to any member of the public. However an applicant for FOI Act relief, as in any other matter before the Tribunal, was said by the appellant to be a person whose interests are affected by the decision the subject of review. In that regard, the appellant referred to s 27(1) of the AAT Act reads as follows:

‘Where this Act or any other enactment… provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons… whose interests are affected by the decision’.

107               The appellant contended that his interests (or more precisely the interests he represented) were adversely affected by the President’s refusal to allow the presence of the appellant and his legal representatives during certain times when members of the public generally were not permitted to be present, for the reason that neither his legal representatives, nor the appellant himself, was in the same position as any member of the public. Moreover the appellant contended that his interests were affected within the scope of s 27(1) of the AAT Act, by reason of the refusal of what was his request made under the FOI Act, including his request for access to the documents the subject of the two conclusive certificates affirmed by the President. Upon that footing the appellant (and hence his legal representatives) claimed to have been entitled to have been present during the private hearing of the Tribunal, regulated as it was by s 58C(2) of the FOI Act, and to receive a written statement of reasons generally for the Tribunal’s decision, being a statement required to include ‘full reasoning in relation to that private hearing but not so as to disclose exempt matter or information’.

108               The appellant submitted that if the Tribunal’s reasoning on this present issue was nevertheless to stand, the consequences would be as follows:

(i) a Minister (such as the Treasurer) would not be obliged to provide to an applicant for relief, such as the appellant, any of the evidence relevant to the issue whether reasonable grounds existed for the claim in a conclusive certificate affecting directly or indirectly that applicant;

(ii) an applicant for relief (such as the appellant) and his legal advisers might not be permitted to be present when the Minister’s evidence on the issue as to the existence of reasonable grounds is given;

(iii) the only cross-examination in which an applicant (in the position of the appellant) might be permitted to engage in would relate to questions arising out of material which a Minister might voluntarily serve or otherwise provide to the appellant;

(iv) the Tribunal’s reasons for decision need contain no significant findings of fact arising out of the Minister’s evidence, or at least such of the Tribunal’s reasons that affected the appellant, directly or indirectly.

109               The consequence of all that was contended by the appellant to be that a Minister’s claims may be considered and ‘processed’ in private, with no opportunity for a person or entity in the position of the appellant to know of, much less to test, a Minister’s evidence on an issue whether reasonable grounds exist for a claim the basis of a Minister’s conclusive certificate (such as here of course any s 36(3) certificate relating to internal working documents). So much was described by the appellant as a ‘most surprising outcome of a statutory scheme which provides that the Tribunal must be … constituted in a conclusive certificate case by one or more presidential members, one or more of whom may be judges of this Court’, pursuant to s 58B of the FOI Act.

110               A further consequence of any such outcome, the appellant further contended, would be to render ‘somewhat strange’ the mechanism for implementation of a Tribunal decision that reasonable grounds do not exist for a particular claim of a Minister as to non-disclosure, that mechanism being that a Minister may choose to revoke or not to revoke the certificate (pursuant to subsection (1) of s 58A), and thereafter implement (as the case may require) the applicable procedures of subsections (2) to (6) of s 58A of the FOI Act. Yet in the latter circumstance so the submission continued, the Treasurer’s statement need not include material which would render it an exempt document under certain provisions of the FOI Act, but must otherwise include his findings on material questions of fact and the material on which those findings were based, in conformity with sub-sections (3), (4) and (5) of s 58A of the FOI Act. It would be curious moreover, the appellant’s submissions concluded, that an applicant, in a situation such as that pursued by the appellant, would be entitled to receive more information in relation to the reasons for the issue and non-revocation of a conclusive certificate in the Ministerial statement than he would through the conduct of proceedings in the Tribunal and from the Tribunal’s reasons for decision. Section 58A of the FOI Act relates to proceedings upon exercise of powers under subsections 58(4), (5) or (5A).

111               There is something to be said for the view that in the light of longstanding curial traditions of the Australian court practices, it should be taken to be implicit, in the absence of statutory language clearly spelt out, that at least professionally qualified legal representatives of a party otherwise entitled to attend a Tribunal hearing should not be excluded in principle from attendance at a private hearing conducted pursuant to s 58C, and from testing the reliability and credibility of the evidence tendered by the Minister or a Government agency. However I think that it is tolerably clear that s 58C confers upon the Tribunal authority of the width for which the respondent Secretary has here contended. Accordingly I would not uphold the validity of the issue of statutory construction here raised by the appellant. Whilst there is some substance in the concerns underpinning the raising by the appellant of this present question, directed as it is to an issue of statutory construction, I would side with the view of the majority and answer this fourth question in the negative.

The fifth alleged question of law framed by the appellant – the meaning of reports of scientific and technical experts in s 36(6)(a) of the FOI Act

112               Section 36 of the FOI Act relates of course to so-called internal working documents. Under the terms of s 36(1)(a), an exempt document must first contain matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth. Specifically excluded from the operation of s 36 generally, pursuant to s 36(6)(a), are the following of potential significance to the scope of the appeal:

‘reports (including reports concerning the results of studies surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters…’

113               The appellant made the initial observation that the relevant terms appearing in the s 36(6)(a) exception are not defined by the FOI Act, and therefore should be given their ordinary meaning having regard to the context in which they appear. The following Macquarie Dictionary meanings were therefore provided by the appellant, omitting meanings not considered by the appellant to be conceivably proximate to the circumstances here involved:

‘“report” – “1. an account brought back or presented; a statement submitted in reply to inquiry as the result of investigation, or by a person authorised to examine and bring or send information… 5. a statement or announcement… 17. to write an account of (an event, situation, etc), as for publication in a newspaper”.

“scientific” – “1. of or relating to science or the sciences.”.

“technical” – “1. belonging or relating to an art, science, or the like: technical skill 2. peculiar to or characteristic of a particular art, science, profession, trade, etc: technical details… 5. related to or connect with the mechanical or industrial arts and the applied sciences: a technical school…”.

“expert” – “1. a person who has special skill or knowledge in some particular field; a specialist; authority: a language expert; an expert on mining…”.’

The definition of economics in the same Dictionary is as follows:

‘“1. the science that deals with the production, distribution, and consumption of goods and services, or the material welfare of humankind; political economy…”.’

To similar effect is The Concise Oxford Dictionary (‘The New Edition’ for the 1990s), which defines economics firstly, as the science of the production and distribution of wealth.

114               Referring again to Harris, it was pointed out by the appellant that Beaumont J considered at 563-564 the meaning of the s 36(6)(a) exception in the course of rejecting of an argument that two interim reports of an independent review of the Legal Department of the Australian Broadcasting Commission carried out by a qualified legal practitioner constituted reports… of scientific or technical experts within s 36(6)(a):

‘… the reports do not fall within the exception contained in s 36(6)(a), since they cannot properly be treated as reports of a “scientific or technical” expert of the type there described. Whilst Miss Pearlman is an expert in the field of legal professional practice, the reference in s 36(6)(a) to “technical experts” is, I think, intended to describe experts in the mechanical arts and applied sciences generally. This is one of the dictionary meanings of “technical” and such a meaning is suggested by the mention of scientific experts in the same connection. No doubt, Ms Pearlman may be confronted with technical legal questions from time to time in the course of her review, but it does not necessarily follow that she is acting as a “scientific or technical expert” within the meaning of s 36(6)(a) (cf Battersea Borough Council v British Iron and Steel Research Association [1949] 1 KB 434 at 454).’

The President of the Tribunal below observed however at [71] of his reasons for decision that the above dictum of Beaumont J, which represented part of his Honour’s reasoning on the issue raised in Harris, had been approved in re Waterford and Treasurer of the Commonwealth of Australia (No 1) (1984) 6 ALN N347at N349 and Cleary at 216, and that he would follow in line. At [72], the President explained his reasons for so doing:

‘The fact that the draftsman has used a combined phrase, “scientific or technical experts”, seems relevant to me. If both parts of the formulation were intended to have wide application then the other may not have been necessary. “Scientific” in ordinary use of language will usually refer to the natural and physical sciences. This is “Science” as it is used in school and university curricula. Faculties of Science are to be contrasted with Faculties of Arts, Law and Economics. We tend not to use “scientific” with the wider meaning that would cover law and economics in the way that the French “scientifique” is understood. Much the same can be said of “technical”. Here the relevant use is found in references to “Technical Colleges” which stress the mechanical arts and applied sciences…’

115               The appellant provided the following reasons why the observations of Beaumont J in Harris should not be taken to be determinative of the issue here arising:

(i) they are expressed ‘in a tentative fashion’;

(ii) there are broader and apposite meanings of the word technical provided in the Macquarie Dictionary as alternatives to the narrower meaning adopted by the President and Beaumont J; there is no necessary requirement that the meaning of technical should be confined to the mechanical arts or applied sciences;

(iii) in accordance with the Parliament’s expressly stated mandate in s 3(2) of the FOI Act, its provisions should be interpreted so as to further the object of the legislation set out in subsection (1);

(iv) juxtaposition of the words scientific and technical, in reference to experts, does not dictate that the meaning of the word technical in reference to experts must necessarily be constrained by the notion of scientific, and indeed the disjunctive or is used;

(v) the decision of the Court of Appeal in England in Battersea (cited of course in Harris)provides no support for observations of Beaumont J; in the context of defining the meaning of purposes of science, literature or the fine arts exclusively in s 1 of the Scientific Societies Act 1843 (UK), the Court of Appeal there held that two research institutions were not established only for the purposes of science within the meaning of that provision, having regard to their respective memoranda of association; one of the institutions for instance was empowered to carry on ‘all kinds of technical work…’; Jenkins J stated at 454 that the expression technical work… ‘is I think, a phrase of substantially wider import than “scientific work”. No doubt all scientific work may be said to be “technical”, but the converse by no means necessarily applies’;

(vi) there is a ‘world of difference’ between an interim investigative report by a lawyer acting as a management consultant (as was Ms Pearlman identified in the above dictum extracted from Harris) and the highly technical reports produced by costings experts here involved;

(vii) in any event, as the Macquarie Dictionary definition cited above demonstrates, economics is a science, as are its sub-disciplines, econometrics and monetary economies.

116               In the light of the express reference in s 36(6)(a) of the FOI Act to reports concerning the results of studies, surveys or tests, the appellant submitted that the concept of at least technical experts, if not also that of scientific experts,would include such experts as actuaries, statisticians or other experts who specialise in the technical area of producing costings or projections in respect of such matters as indexing the personal tax scales or projecting the number of taxpayers with particular characteristics; the appellant hence submitted that the Tribunal adopted an unduly narrow construction of this statutory exclusion, that shortcoming being said to involve an error of law requiring remitter to the Tribunal for reconsideration of the operation of s 36(6)(a) to circumstances relevant to the review.

117               Moreover by way of examples given by the appellant, at least documents B1-B13 (the costings and projections done by Treasury or the Australian Taxation Office) and B34-B39 (the spreadsheets) were said by the appellant to qualify as reports of at least technical experts, and therefore to fall outside s 36 of the FOI Act by virtue of subs 36(6)(a), as also did B21 and 22, and A3 and A33. The authors of those reports were described as persons who were experts in providing detailed costings and projections and their work as that of econometricians who used mathematical methodology to determine costings and projections based on raw data or statistics, being descriptions which appear to have been appropriate. Furthermore the work of those authors was said by the appellant to be both complex as well as technical, and the so-called ‘fruit of their work’ was further said to be contained in documents which could appropriately be described as reports in the sense that the documents conveyed the results of their expert analyses. The reports were therefore said to have been made by at least technical experts within the ordinary meaning of that phrase. The evidence of Mr Gallagher, adduced by the respondent Secretary, was summarised by the appellant to the effect that the persons within his Modelling Unit, and also within the Australian Taxation Office, who were responsible for producing those reports, were experts within the s 36(6)(a) meaning of that description. Professor Dixon’s evidence, given on behalf of the appellant, was that costing exercises of the kind under consideration, as opposed to any broader macro-economic analysis of the effects of ‘bracket creep’ on economic behaviour, was ‘mainly about data’ and ‘[n]ot much professional judgment is required’. So much was submitted by the appellant to be indicative of a technical process involved in the ‘bracket creep’ material.

118               The contention that the subject exercises and analyses are technical in character within s 36(6)(a) was further described by the appellant as consistent with the very nature of the statutory exception the subject of that paragraph. I was referred to re Eccleston and Dept of Family Services and Aboriginal and Islander Affairs [1993] 1 QAR 60(Queensland Information Commissioner, 30 June 1993, at [31]), where that type of exemption was described as not extending to protection of the ‘raw data or other evidentiary material upon which decisions are made’, the subject exercises and analyses comprising largely or essentially raw data. Hence it was submitted by the appellant that ‘[s]preadsheets, calculations and such like are much more of the character of raw data – the stuff on which policy is later built – than documents of ‘a certain degree of gravity… such as potentially to involve ministerial concern’, the appellant further citing re Subramanian and Refugee Review Tribunal (1997) 44 ALD 435 at [22], where the following appears:

‘In other words, a certain degree of gravity is contemplated in documents aspiring to be internal working documents covered by this section. The gravity must be such as potentially to involve ministerial concern. It is difficult to conceive that the outpourings contained in the two documents under review would excite such considerations.’

and further at [23]:

‘In my view, the documents are neither deliberative in nature, nor do they form part of a deliberative process. They do not demonstrate an agency’s assessment of completing arguments, they do not deal with the development of any policy or with the expediency of any proposal….’

Nor were the documents here subject to focus by the present submissions of the appellant said to involve any ‘highly complex analysis’. Rather it was said that they ‘laid near the bottom’ of the Treasury’s ‘thinking processes’, and were not part of ‘the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision, or a course of action, the appellant citing re Waterford and Department of the Treasury (No 2) (1984) 1 AAR 1 at [58], where the following appears:

‘As a matter of ordinary English the expression “deliberative processes” appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. “Deliberation” means “The action of deliberating: careful consideration with a view to decision” (see The Shorter Oxford English Dictionary). The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing argumentsor considerations that may have a bearing upon one’s course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s 36(1)(a) come into play.’

Such data coupled with spreadsheet analysis were therefore submitted by the appellant to neither constitute, nor relate to, an ‘opinion, advice or recommendation which has been obtained, prepared or recorded in the course of, or for the purposes’ of the deliberative processes of the Treasury, within the scope of operation of s 36(1)(a), in the sense that such terminology or description has come to be understood.

119               For all those foregoing reasons, it was submitted by the appellant that the proceedings should be remitted to the Tribunal for reconsideration of the operation of the exclusion provisions of s 36(6)(a) in light of the principles and descriptions to which the appellant thus adverted.

120               Although it is clear that s 36(6)(a) must be read in the context of s 36(1)(a), the appellant’s submissions which I have described in [118] do not appear to me to appropriately come to issue. In determining whether the relevant documents are reports…of scientific or technical experts, it is not helpful to scrutinise the same with a view to determining whether or not they may be said to fall within the terms of subs 36(1)(a).

121               The difficulty which confronted the Tribunal, as exemplified in the reasons or grounds (or sometimes described as claims or classes) (e) and (g) framed and applied by the Treasurer, and adopted by the President of the Tribunal below (see again [57] where those classes are extracted above), is that material of scientific or technical experts may not be sensibly dissected or extracted without what remains being potentially misleading or confusing, thus rendering reports containing such material of no or no sufficient utility in terms of the public interest. Understandably therefore the President also pointed to and invoked the reasons or grounds (or claims or classes) (c) and (d) as well (see [77] of the Tribunal’s reasons for decision below). It is of course however the text of s 36(6)(a), to be read in the context of s 36(1)(a), which I must presently address.

122               Naturally it is not possible for me, nor is it my function, to study reports in evidence purportedly or potentially falling within the description contained in s 36(6)(a), and thereupon form concluded views as a person unqualified as a scientific or technical expert within s 36(6)(a). I would conclude that the President erred in principle, in the conclusion he reached, as to the denial of at least significant aspects of many of the documents which have been described in the Schedule to his Honour’s reasons for decision, being a denial involving an error of law based on what appears to me to have been a wrongful interpretation of the notion of technical experts within s 36(6)(a) of the Act. A reading of that extensive documentary list, as detailed by the President, in principle to satisfy the s 36(6)(a) description of reports… of scientific or technical experts, though of course a reading in depth of each document may not necessarily bear out that general conclusion in many instances.

The sixth alleged question of law framed by the appellant – alleged error in relation to communications

123               The appellant drew attention to the statement of the Tribunal at [35] reading as follows:

‘The claim that there is a need for direct, free and confidential communications with Ministers and their staff is not an irrational claim. Nor is the claim that to defeat this need is against the public interest. A former President of this Tribunal and a current Deputy President have both upheld the claim with respect to communications with Ministers. The present case seeks to include Ministers’ staff. That does not seem to me to involve any extension. A communication with a member of a Minister’s private staff is effectively a communication with the Minister.’

124               Upon that footing, the appellant submitted as follows:

‘There was, so far as the Applicant is aware, no evidence in support of this conclusion and in any event the Tribunal has not purported to base the conclusion on any evidence that was before it. The onus of proof was on the Respondent. The proposition is by no means self-evident, even leaving aside the lack of definition of “Minister’s private staff”. Insofar as any documents fall into this category then the Tribunal erred in its decision, and the matter should be remitted.’

125               Irrespective of the criticisms raised by the appellant, I would incline to the view that the President’s finding above has not been shown to constitute any error of law.

Conclusion

126               In the result, were these reasons not in the minority, I would have ordered in appropriate terms that the proceedings be remitted to the Tribunal for consideration in the light of what I think to be the correct answers to Questions 1, 2, 3 and 5.

Associate:

Dated: 2 August 2005

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

JACOBSON J:

Introduction:

127               This is an appeal from part of a decision of the Administrative Appeals Tribunal (“the Tribunal”), constituted by the President of the Tribunal, given on 21 December 2004. The Tribunal decided, pursuant to s 58(5) of Freedom of Information Act 1982 (Cth) (“the FOI Act”) that there existed reasonable grounds for the claim made in certificates, signed by the Treasurer under s 36(3) of the FOI Act, that the disclosure of certain documents would be contrary to the public interest.

128               The appeal is brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) which provides for an appeal on a question of law. The amended notice of appeal identified ten questions of law, some with sub-paragraphs purporting to state further questions, but only five, including a number of sub-paragraphs, were pursued. The Respondent submitted that none of the questions raised a pure question of law; see Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 at [18] (“Birdseye”); Australian Securities and Investment Commission v Saxby Bridge Pty Limited (2003) 133 FCR 290 at [45] – [46], [107]. Nevertheless, Mr Tracey QC, counsel for the respondent, argued the case upon the basis that even if pure questions of law have been raised, none of the grounds of appeal have been made good.

129               The appellant is the Freedom of Information (“FOI”) editor of the Australian newspaper. He applied on 17 December 2002 to the FOI officer of the Australian Taxation Office for the disclosure of documents relating to “bracket creep”. In particular, he sought reports, reviews or evaluations completed in the last two years detailing the extent of bracket creep and its impact on revenue collection, in particular the higher burdens faced by taxpayers resulting from increases due to bracket creep. I will refer to this class of documents as “the Bracket Creep documents”.

130               The appellant applied on 3 December 2002 to the FOI officer of the Federal Treasury for disclosure of a second category of documents. These were documents relating to reviews, reports or evaluations completed in the last two years on the First Home Buyers Scheme. The appellant sought, in particular, documents summarising the level of fraud associated with that scheme including its use by high wealth individuals and its impact on the performance of the housing sector. I will describe this class of documents as “the First Home Buyers documents”.

131               The Treasurer issued a “conclusive certificate” under s 36(3) of the FOI Act for the Bracket Creep documents on 1 December 2003. He issued a conclusive certificate for the First Home Buyers documents on 13 January 2004. Each of the certificates listed a series of seven grounds, stated in identical terms in each of the certificates, as to why disclosure of the documents listed in a schedule to the certificates, would be contrary to the public interest. The schedule to each certificate identified which one or more of the grounds applies to each specified document.

132               In the course of the proceedings in the Tribunal, the respondent released a large number of the documents covered by the certificates. At the time of the Tribunal’s decision, 36 Bracket Creep documents and 11 First Home Buyers documents remained in issue.

133               Section 36 of the FOI Act provides that a document is exempt from disclosure if it is an internal working document (as defined in s 36(1)(a)) and disclosure would be contrary to the public interest; see s 36(1)(b).

134               If the Treasurer is satisfied, in relation to an internal working document, that the disclosure of the document would be contrary to the public interest, he or she may sign a certificate to that effect, specifying the ground of public interest relied upon, and, subject to Part VI of the FOI Act, such a certificate establishes conclusively that the disclosure of the document would be contrary to the public interest; see s 36(3) of the FOI Act.

135               Section 58 of the FOI Act is to be found in Part VI. It specifies the powers of the Tribunal where an application is made to review a decision made by the person to whom the initial application for access is made. Section 58(3) confers power on the Tribunal to review the decision as to whether the document is an internal working document. However, where the document is claimed to be an exempt document under s 36 and a certificate is in force under s 36(3), the Tribunal’s role in relation to the question is limited by the conclusivity stipulation in s 36(3).

136               If the applicant for access requests a review of the decision to refuse access, the Tribunal’s powers in relation to the conclusive certificate are to:

“… determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.” See s 58(5).

137               Six questions of law (with some sub-questions) are said to be raised. I will describe them by way of introduction in terms of the issues framed by the appellant. I will consider them below under the questions of law said to be raised. In so doing, I will consider whether they do in fact raise questions of law within the principles stated inter alia in Birdseye.

138               The issues are as follows:-

(a)                whether the Tribunal misdirected itself as to the test stated in s 58(5) of the FOI Act, namely, “the question whether there exist reasonable grounds for the claim”, and in its application of that test.

(b)               whether the Tribunal misdirected itself as to what is involved in the concept of “public interest” under s 36 of the FOI Act.

(c)                whether the Tribunal erred in failing properly to consider the appellant’s evidence as to why it was in the public interest that the documents be disclosed.

(d)               whether the Tribunal erred in the procedure it adopted pursuant to s 58C of the FOI Act by excluding the appellant from attending a part of the proceeding during which oral evidence was given by two Treasury witnesses in relation to the question of whether the disclosure of documents would be contrary to the public interest.

(e)                whether the Tribunal erred in its construction of the question of whether some of the documents were reports of “scientific or technical experts”; see s 36(6) of the FOI Act. That sub-section provides that the section does not apply to such reports so that a purported certificate could not have the effect of establishing conclusively that the disclosure of the documents would be contrary to the public interest;

(f)                 whether the Tribunal erred in finding that a communication with a member of the Minister’s staff is effectively a communication with the Minister.

The FOI Act

139               I will first set out and discuss in this part the principal provisions of the FOI Act which arise in the appeal.

140               Section 3 states the object of the FOI Act which is to extend as far as possible the right of the Australian community to access to information in the possession of the Government by, inter alia:-

“(1) (b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only 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 …”

141               Section 3(2) provides for a beneficial construction of the provisions of the FOI Act. It states that:-

“It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.”

142               The public’s right of access to documents is dealt with in s 11 of the FOI Act. Section 11(1) provides that, subject to the FOI Act, every person has a legally enforceable right to obtain access to two classes of documents. They are, first, a document of an agency as defined in s 4(1) and second, an official document of the Minister, other than, in each case, an exempt document.

143               Section 15 deals with requests for documents. It is unnecessary to set out the section.

144               Part IV of the FOI Act deals with exempt documents. Section 32 is headed “Interpretation”. It states that a provision of this Part by which documents are referred to as exempt documents is not to be construed as limited in its scope or operation by any other provision of Part IV. Nor is a provision to be construed as not applying because a document also falls within another exemption.

145               Various categories of exempt documents are referred to in ss 33, 33A, 34 and 35 of the FOI Act. They relate specifically to documents affecting national security, defence or international relations, documents affecting relations with the States, Cabinet documents and Executive Council documents.

146               Provision is made in each of ss 33, 33A, 34 and 35 of the FOI Act for the Minister, or another responsible person, to sign a conclusive certificate exempting a document from disclosure.

147               Section 36(1) lays down a two-step test for determining whether a document is exempt as an internal working document; the term “internal working document” is not itself a specifically defined expression. The first step is whether it would disclose a matter in the nature of an opinion or other document prepared for the purpose of the “deliberative processes” of Government. The second is whether the disclosure of the document would be contrary to the public interest. I will set out s 36(1) in full as follows:-

“(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:

(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

(b) would be contrary to the public interest.”

148               Section 36(3) provides for the Minister to be able to issue a conclusive certificate that disclosure would be contrary to the public interest. It is as follows:-

“Where a Minister is satisfied, in relation to a document to which paragraph (1)(a) applies, that the disclosure of the document would be contrary to the public interest, he or she may sign a certificate to that effect (specifying the ground of public interest in relation to which the certificate is given) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the disclosure of that document would be contrary to the public interest.”

149               Section 36 does not apply to a document by reason only of purely factual material in the document; see s 36(5).

150               Also, s 36 does not apply to reports of “scientific or technical experts”; see s 36(6)(a). The full text of that sub-paragraph is as follows:-

“This section does not apply to:

(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters.”

151               Section 43 provides that a document is an exempt document if its disclosure would reveal, inter alia, information concerning a person in respect of the commercial or financial affairs of an organisation or undertaking. An issue arose in relation to this section before the Tribunal. No issue arises on the appeal.

152               There are other categories of exempt documents stated in Part IV of the FOI Act but it is unnecessary to refer to them.

153               Section 55 lists the various types of decision made under the FOI Act in respect of which an application may be made to the Tribunal for a review of the decision. Section 55(1)(a) provides that application may be made for review of a decision refusing to grant access to a document in accordance with a request. That was the sub-section under which the appellant applied to the Tribunal for a review of the decision refusing access to the documents.

154               The powers of the Tribunal are set out in s 58. The relevant subsections are (1), (3), (4) and, in particular, s 58(5). I will set out those subsections in full as follows:-

“(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.

…

(3) Where there is in force in respect of a document a certificate under section 33, 33A, 34, 35 or 36, the powers of the Tribunal do not extend to reviewing the decision to give the certificate, but the Tribunal, constituted in accordance with section 58B, may determine such question in relation to that certificate as is provided for in whichever of subsections (4), (5) and (5A) applies in relation to that certificate.

(4) Where application is or has been made to the Tribunal for the review of a decision refusing to grant access to a document in accordance with a request, being a document that is claimed to be an exempt document under section 33, 33A, 34 or 35 and in respect of which a certificate (other than a certificate of a kind referred to in subsection (5A)) is in force under that section, the Tribunal shall, if the applicant so requests, determine the question whether there exist reasonable grounds for that claim.

(5) Where application is or has been made to the Tribunal for the review of a decision refusing to grant access to a document in accordance with a request, being a document that is claimed to be an exempt document under section 36 and in respect of which a certificate is in force under that section, the Tribunal shall, in a case where it is satisfied that the document is a document to which paragraph 36(1)(a) applies, if the applicant so requests, determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.”

The operation of those subsections was the main focus of the respective contentions of the parties.

155               If the Tribunal determines that reasonable grounds do not exist, the Minister is not bound to revoke the conclusive certificate; s 58A(1). If the Minister makes a decision not to revoke the certificate he or she is to give notice to the applicant, stating the findings and the material upon which the findings were based, and reasons for the decision and cause a copy of the notice to be laid before each House of Parliament; s 58A(3) and (4). Section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is explicitly excluded from application to a decision of the Minister made under s 58A.

156               Section 58C makes provision for a part of the hearing of a proceeding by the Tribunal to be held in private. Section 58C(2) is as follows:-

“(2) At the hearing of a proceeding referred to in subsection 58B(1), the Tribunal:

(a) shall hold in private the hearing of any part of the proceeding during which evidence or information is given, or a document is produced, to the Tribunal by:

(i) an agency or an officer of an agency;

(ii) a Minister or a member of the staff of a Minister; or

(iii) a member, an officer, or a member of the staff, of a body referred to in subsection 7(1) or the person referred to in that subsection;

or during which a submission is made to the Tribunal by or on behalf of an agency or Minister, being a submission in relation to the claim:

…

(v) in the case of a document in respect of which there is in force a certificate under section 36—that the disclosure of the document would be contrary to the public interest; or

…

(b) subject to subsection (4), shall hold the hearing of any other part of the proceeding in public.

…

(3) Where the hearing of any part of a proceeding is held in private in accordance with subsection (2), the Tribunal:

(a) may, by order, give directions as to the persons who may be present at that hearing; and

(b) shall give directions prohibiting the publication of:

(i) any evidence or information given to the Tribunal;

(ii) the contents of any documents lodged with, or received in evidence by, the Tribunal; and

(iii) any submission made to the Tribunal;

at that hearing.”

157               Provision is made in s 58E for the production to the Tribunal of documents in relation to which a certificate has been issued. It provides:

“(1) In any proceedings before the Tribunal under this Act in relation to a document in respect of which there is in force a certificate under section 33, 33A, 34, 35 or 36, the Tribunal is entitled to require the production of the document in accordance with this section and not otherwise.

(2) Where, in considering a question referred to in subsection 58 (4), (5) or (5A) in relation to a document, the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there exist reasonable grounds for the claim to which the question relates, the Tribunal may require the document to be produced for inspection by the Tribunal as constituted for the purposes of the proceeding.

…”.

158               Section 61 deals with onus. Section 61(1) places on the agency, or the Minister to whom the request was made, the onus of establishing that a decision refusing access was justified.

159               Section 63 provides for the Tribunal to ensure the non-disclosure of certain matters including exempt documents. Section 63 is as follows:-

“(1) In proceedings under this Part, the Tribunal shall make 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 referred to in subsection (1).”

The Tribunal’s reasons

160               The Tribunal observed at [14] that its role in the application was not the usual one of making the correct or preferable decision. Its role under s 58(5) with respect to exempt documents, in respect of which a conclusive evidence certificate was in force under s 36, was two-fold. First, as the Tribunal said, it was required to determine whether the documents were internal working documents reflective of “deliberative processes” within s 36(1)(a). Second, it was required to determine whether there existed reasonable grounds for the claim that disclosure of those internal working documents would be contrary to the public interest.

161               Two principles were said to have emerged from the authorities which have examined the test stated in s 58(5). The first is that the Tribunal’s decision is to relate to the circumstances which exist at the time of its decision, not when the certificate was given. Second, the expression “reasonable grounds” was said to mean grounds based on reason as distinct from something “irrational, absurd or ridiculous”. A number of authorities were cited for these propositions. I will refer to some of them later.

162               The Tribunal said at [16] that what is required by s 58(5) is “reasonable grounds for the claim”. Determining reasonableness requires more than reason or logic it was said; it requires “the examination of the foundation of the claim”, and understandably so, having regard to the notion of “grounds”.

163               Importantly, the Tribunal referred at [17] to authorities which state that the question is whether the evidence discloses reasonable grounds. The authorities included the decision of O’Connor J in Re Cleary and Department of the Treasury (1993) 31 ALD 214 (“Cleary”). After stating O’Connor J’s formulation of the question, the Tribunal said in the present case at [17] that “by stating the question in this way emphasis is placed on the evidentiary base for the grounds”.

164               The Tribunal then referred at [18] – [19] to the decision of the High Court in George v Rockett (1990) 170 CLR 104 (“George v Rockett”) which it said was of assistance in understanding what factual basis must be established to show that grounds are reasonable. It noted that in George v Rockett, the High Court was concerned with a slightly different expression under the Criminal Code 1899 (Qld). Nevertheless, the Tribunal considered that it followed from the observations of the High Court that it was necessary under s 58(5) to look at the underlying facts to determine whether there were reasonable grounds.

165               The Tribunal considered at [20] – [21] that when the High Court said in George v Rockett that reasonable grounds require the existence of facts which are sufficient to induce that state of mind in “a reasonable person”, it did not contemplate “the man on the Clapham omnibus”. It meant a person whose state of mind was reasonable even though other persons might come to a different view which was also reasonable.

166               The Tribunal referred at [22] to earlier authority in which a Tribunal member did not consider whether he agreed or disagreed with the certifier, only whether there existed reasonable grounds for the claim and that, as was stated in another authority, it is a “heavy thing” for a tribunal to reject a certified claim.

167               The seven grounds relied upon by the Treasurer in the certificates were set out in full at [26]. It is unnecessary to repeat them. Three of the grounds were to the effect that government officers should be able to communicate frankly and candidly with Ministers and their staff. The remaining four grounds were to the effect that release of the documents may cause the public to be confused or misled. The Tribunal synthesised each of the claims later in its reasons when referring to other Tribunal decisions in which claims of a similar nature have been considered.

168               The Tribunal observed at [26] that the grounds were “general” and at [27], that they might be described as “class claims”. It referred to decisions of high authority in which class claims as to protection of documents from production in the public interest have been criticised; see Sankey v Whitlam (1978) 142 CLR 1 (“Sankey v Whitlam”) at 43 (Gibbs ACJ), 62-63 (Stephen J); Commonwealth v Northern Land Council (1991) 30 FCR 1 (“Northern Land Council”) at 28-30 (Black CJ, Gummow and French JJ).

169               The Tribunal then said at [29] that the grounds relied upon by the Treasurer would be of guidance but they would not necessarily be the only matters considered. It said that:-

“To the extent to which the generality of the grounds renders them less persuasive I will need to look at how each individual claim might be supported. Because the test is ultimately based in findings of fact and not simply on the process of reasoning attached to a ground relied upon, it will usually be necessary to know something about each document to enable a judgment to be made. Sometimes characterising the document will be enough, particularly where the ground relied upon addresses the document individually. However, where the claim is not obviously good it will usually be helpful to examine the document to see how the document relates to the claim.”

170               Significantly, the Tribunal said at [31] that it required the production of the documents pursuant to s 58E of the FOI Act in order to evaluate the claims in the present case, the documentary schedules not being adequate to evaluate those claims. It continued:-

“I have examined each document and I will deal with each claim or potential basis for exemption by reference to the combination of the claim, the contents of the document and the written and oral evidence.”

171               The Tribunal then set out a summary or paraphrase of each of the seven grounds. It is useful to refer to them briefly and to some of the authorities mentioned by the Tribunal because the appellant submitted that the Tribunal’s approach revealed error in its construction of what was required to demonstrate reasonable grounds under s 58(5).

172               The Tribunal characterised the first ground, at [32], as a claim that Government officers should be able to communicate freely with Ministers and their staff. It said this was similar to an argument that the disclosure of advice given by public servants would impede frankness and candour, which was criticised and rejected in a number of cases including Sankey v Whitlam at 97 per Mason J.

173               However, the Tribunal went on to refer to other authorities in which claims based on the need for confidentiality in communications between the Minister and the Secretary were upheld. One of those decisions was Re Reith and Minister for State for Aboriginal Affairs (1988) 16 ALD 709 at [18].

174               The Tribunal then said at [34] that it followed that claims based on frankness and candour have not been well received but that claims based on the need for confidentiality have been accepted, notwithstanding the association between the two. It said at [35]:-

“The claim that there is a need for direct, free and confidential communications with Ministers and their staff is not an irrational claim. Nor is the claim that to defeat this need is against the public interest. A former President of this Tribunal and a current Deputy President have both upheld the claim with respect to communications with Ministers. The present case seeks to include Ministers’ staff. That does not seem to me to involve any extension. A communication with a member of a Minister’s private staff is effectively a communication with the Minister.”

175               The second ground was discussed commencing at [37], and like the first ground, related to freedom of communications between the Minister and his or her staff. The Tribunal said that it was associated with, but different from, the frankness and candour argument. It was said that the risk of disclosure would cause officers to communicate sensitive material orally rather than committing it to writing.

176               A ground or claim in these terms was distinguished, at [38], from the frankness and candour ground which was rejected by O’Connor J in Cleary. The Tribunal said that a claim which was similar to the second ground was upheld by the Tribunal in an earlier decision of Re McGarvin and Australian Prudential Regulatory Authority (1998) 53 ALD 161 at 184.

177               Further as to the second ground, the Tribunal said that it must be tested with the documents, observing: “[i]t is not irrational. It does not fail at the outset.”; see [40].

178               The Tribunal then turned, at [41] and following, to the next group of claims which, in each case, was to the effect that the release of the documents may be misleading or confusing. These were broken down to three claims namely, that the documents discussed options that were not adopted, that the documents were provisional, and that there was no explanation of the basis for estimates or costings.

179               Reference was then made at [42] to a number of tribunal and court decisions dealing with claims in respect of draft or provisional opinions. In some of those decisions the claim was upheld; in others it was rejected. One in which a claim was upheld was the decision of Beaumont J in Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 (“Harris”) in which his Honour held that it was contrary to the public interest to disclose interim reports containing tentative or provisional opinions because they could create a misleading or unfair impression in the minds of readers.

180               The Tribunal observed at [43] that a public interest ground of this type, ie that the document does not express a concluded view, or is not sufficiently self-contained to be meaningful, will not be available where applicants want to check documents relating to themselves. The Tribunal then said:-

“However, the s 36 ground may apply where the result of the disclosure will be to release misleading information about a topic of general interest when the purpose of the application is to gain access to general information or to government policy relating to such information.”

181               The sixth ground was referred to at [44]. This ground was that the preparation of responses to questions in Parliament is a sensitive aspect of the work of departmental officers. The Tribunal said that such a claim had been upheld in earlier decisions, which were identified.

182               The seventh ground was that documents prepared for an expert audience by reason of the use of expert or jargon terms could easily be misinterpreted. The Tribunal referred to this at [45] and said that similar claims had been upheld in earlier decisions.

183               The Tribunal then said at [46]:-

“It follows that claims similar to those raised by the present conclusive certificates have all been upheld in previous decisions of this Tribunal. Many of them did not involve conclusive certificates. The claims were upheld on their merits. In the above summary the cases in which there was a conclusive certificate have been identified. Claims associated with the ‘frankness and candour’ argument have been upheld although in its direct formulation it is said to have been discredited. I note that I have not, in the above analysis, referred to the decision of President Davies J in Re Howard and Treasurer of the Commonwealth (1985) 7 ALD 626, which was criticised by the applicant.”

184               A submission of the appellant to the effect that the Tribunal should not accept the argument that release of documents might mislead was criticised at [49]. The appellant had submitted that Treasury had adequate facilities to explain documents or put them in context. The Tribunal said that the ability of Treasury to explain or correct would not adequately overcome the problem.

185               The appellant submitted that the Tribunal should infer that the public interest ground had been made too lightly. This was because the respondent released a number of documents before and during the hearing. The Tribunal noted the submission at [51] and observed that “[t]here is force in this argument”. It said that it had taken the criticism into account but rejected the argument.

186               The Tribunal summed up its views about the effect of previous decisions and the need for evidence to support a claim in the following passage at [52]:-

“Where a document genuinely attracts consideration of a claim which has previously been upheld by the Tribunal under s 36 a finding that "there exist reasonable grounds for" a s 36 claim may not require a great deal more. A decision upholding a claim which has not been corrected on appeal must provide some basis for a positive finding that where a factual basis exists the grounds are reasonable. However, I accept that it is ultimately for me to be satisfied with respect to each document before me.”

187               The Tribunal referred at [53] to [67] to evidence given on behalf of the parties to the proceedings. Some of the evidence of Treasury officers called by the respondent was heard by the Tribunal in the absence of the appellant. This was said to have been done in order to comply with s 58C. The Tribunal observed that the effect of s 58C(3) was that it could not publish the evidence taken in the appellant’s absence.

188               The Tribunal described the appellant’s witnesses as “distinguished experts”. The first was Mr Alan Rose, a former Secretary of the Attorney-General’s Department who was the President of the Australian Law Reform Commission in 1995 when that body produced its report entitled “Open Government: Review of the Federal Freedom of Information Act 1995” (Report No 77).

189               The Tribunal described Mr Rose’s evidence at [55]. It said that he emphasised the importance of the FOI Act and that he sought to contradict the respondent’s claim inherent in each ground.

190               Given the absence of cross-examination, the Tribunal accepted Mr Rose’s evidence at [54], and said, at [57] that it would take his opinions into account without regarding them as definitive. Its reasons for this were set out in the following passage at [56]:-

“This evidence provides the applicant with a basis for challenging the certificates. It does not follow, however, that when such evidence is adduced the test in subs 58(5) of the [FOI] Act will be satisfied. There are a number of reasons for this. First, as the words of Mr Rose themselves show, he is giving evidence of his experience. Secondly, notwithstanding Mr Rose’s distinction his evidence is stated largely in the form of conclusions which are drawn from primary evidence which is generally unstated. Thirdly, the evidence does not exclude others from holding different opinions. In this regard I also have evidence from relevant Treasury officers. Their evidence, if accepted, much more closely addresses the claims made for the documents under consideration. Their experience is direct and contemporary. Fourthly, Mr Rose is addressing the validity of the reasoning as much as the factual basis for the grounds and that is not a matter wholly determined by expert evidence. The views of others, including the views of members of tribunals considering claims under the Act, are relevant. Fifthly, the test itself, as I have found it to be, requires a consideration of all the available reasonable opinions. To assess one expert opinion as definitive would not be to apply subs 58(5). Finally, the ultimate question of whether reasonable grounds exist is a matter for me.”

191               The second expert for the appellant was Mr Stutchbury, the editor of The Australian. Mr Stutchbury has a first class honours degree in economics and is a former deputy editor of the Australian Financial Review. He gave evidence of the public interest in the matters covered by the documents requested. The Tribunal dealt with this at [59] as follows:-

“The public interest in having access to material on important topics is not in doubt. But there may be another public interest, in permitting confidential communications with Ministers of the Crown and their advisors particularly where release of such documents might have some adverse effect on the ordinary operations of government. This public interest may conflict with a public interest in disclosure of important information available to government. The primary role of government is to govern. Interference with the smooth carrying out of that role will be against the public interest.”

192               The Tribunal said of Mr Stutchbury’s evidence that it was subject to the same comments as the evidence of Mr Rose. That is to say, the six points made in the passage which I have set out at [109] above were adopted. These included the third point, namely that the evidence of Treasury officers more closely addressed the claims. The Tribunal said at [60] that much of Mr Stutchbury’s evidence “concentrated” on the public interest in free and informed community debate and upon the robustness of modern government which can accommodate such debate. As to this, the Tribunal said at [60]:-

“This is not to be doubted. However, there remains a legitimate potential public interest in letting government get on with its role without unnecessary intrusion and distraction. Provided the latter view is a reasonable view it will be difficult to upset a conclusive certificate based on it.”

193               The third expert for the appellant was Mr Tony Harris who was the Auditor-General for New South Wales for seven years in the 1990s, and who is currently a senior financial writer and journalist. Apart from referring at [61] to Mr Harris’ current occupation and distinguished career, the Tribunal made no reference to his evidence, other than to record that he spoke to “the public interest in the subject of the documents sought and against the sustainability of the grounds in the conclusive certificates”.

194               The appellant’s fourth expert was an economist, Professor Peter Dixon who is currently a Professor and Director in the Centre of Policy Studies at Monash University. The Tribunal referred at [62] to the nature of his evidence but it made no findings. It said that his evidence was concerned to show that the documents would be of particular interest to applied economists and similar experts, and that it supported the proposition that much of the material would be difficult for ordinary readers to understand. The Tribunal further recorded that Professor Dixon made the point that exercises of the kind covered by documents such as costings of options for indexation of income tax scales are not easy to perform outside the Commonwealth Public Service because they require access to data that is not in the public domain.

195               The Tribunal identified the witnesses called by the respondent at [63]. It said that of the four who gave evidence, the most senior Treasury witness was Mr Richard Murray, Executive Director, Fiscal and Corporate. The Tribunal said at [63] that all of Mr Murray’s evidence was given in private pursuant to s 58C(2) of the FOI Act and that, pursuant to s 58C(3) “I cannot publish any of the evidence”.

196               The Tribunal referred, at [64] to the directions which it gave for private hearings pursuant to s 58C(3)(a). It is apparent from the Tribunal’s reasons that there were two types of private hearings. There were some private sessions from which the public was excluded but at which the appellant’s legal representatives were present. At those sessions, the legal representatives were permitted to cross-examine the Treasury witnesses, but not as to the contents of the requested documents; see [64]. There was a second category of private session from which the appellant and his legal representatives were excluded. At those sessions the Tribunal took evidence from Mr Murray and another Treasury officer.

197               The Tribunal said at [65] that it could not disclose the most significant evidence given by the respondent’s witnesses. It said that this was required by s 58C(3), even though much of this evidence was disclosed to the appellant. However, the Tribunal indicated that it could disclose:-

“the evidence relating to the internal working documents issue and the relevance issue but that evidence was mostly confined to describing documents and largely does not call for repetition.”

198               The Tribunal found at [66] that the evidence given in private, that is to the exclusion of all persons including the appellant and legal advisers, supported the claims made in the certificates, particularly that of Mr Murray. It said that the evidence supported an alternative “reasonable opinion” to those expressed by the appellant’s experts. The Tribunal continued at [66] as follows:-

“Mr Murray was cross-examined. The cross-examination did not demonstrate the evidence to be unreasonable. It is not for me to decide which of the opinions of the applicant’s and respondent’s witnesses are preferable. That is not the subs 58(5) task. Provided there is a reasonable basis for an opinion and there is evidence to support it the test in subs 58(5) will be satisfied. The evidence of Mr Murray as to the reasonableness of the claims in the conclusive certificates affirms the findings of previous Tribunals that there is a reasonable basis for claims of the kind represented by each of the claims made in the conclusive certificates here.”

199               It appears from what the Tribunal said at [66] that Mr Murray’s evidence did not address the conclusive certificate claims directly but the evidence addressed the seven “generic grounds” in each certificate, which was said to support “the existence of an alternative reasonable opinion from the opinions expressed by the applicant’s witnesses”. The Tribunal said at [67] that the evidence of the other Treasury witnesses was more directly concerned with each of the documents and linked the documents with the claims and incidentally provided support for the claims.

200               In considering whether the documents were internal working documents within s 36(1)(a), the Tribunal said at [73] that it would address each document on its merits but that it would follow the authorities such as Harris on the meaning of “scientific or technical experts”.

201               The Tribunal set out at [74] the structure of its approach to examination of the documents. It said that it would first consider whether the documents were internal working documents within s 36(1)(a) and then whether they fell outside the section by reason of ss 36(5) or 36(6). The Tribunal said it would then address the s 58(5) question of whether reasonable grounds existed.

202               The results of the Tribunal’s examination of the documents are set out at [75] – [95]. It is unnecessary to refer to all of these paragraphs. In dealing with ten of the documents at [77], the Tribunal said that the documents provided “a substantial factual basis” for deciding that they fell within four of the grounds specified in the certificate. It continued as follows:-

“Those are rational grounds. They have support in the authorities and in the evidence. Accordingly, without determining whether it is my opinion or not, applying the approach I have stated that I will adopt, I conclude that reasonable grounds exist for the claim that the disclosure of each of the documents would be contrary to the public interest.”

203               The Tribunal dealt at [87] with ten other documents which it described as briefs to possible answers to questions which might be asked in Parliament. It said that it had read each document carefully. It said that two of the grounds relied on in the certificates were justified.

204               In [91] the Tribunal dealt with two documents, one of which was described as a document prepared to suggest answers to questions which might be asked in question time. The Tribunal said: “For reasons I have already given I conclude that the test in subs 58(5) is satisfied with respect to such documents, including this document”.

First Question – The proper construction of s 58(5)

205               This question was set out at question 1A in the amended notice of appeal as follows:-

“Whether, on its proper construction, the duty in s 58(5) of the [FOI] Act that the Tribunal determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest requires the Tribunal to:

a.                      address and give proper and genuine consideration to all the relevant evidence or other material before it bearing upon the question whether such reasonable grounds exist, and not rely merely on past decisions of the Tribunal and/or an opinion of one witness not demonstrated to be unreasonable; and

b.                      address and give proper and genuine consideration to competing aspects of the public interest as raised in the evidence or arguments before it.”

206               In my view, some parts of this question do raise pure questions of law as to the proper construction and effect of s 58(5). They therefore meet the test stated in Birdseye.

207               There are really three related questions which the appellant wishes to agitate. The first is whether s 58(5) properly embraces what was called “a two-stage approach”, namely an initial threshold test of rationality of each of the seven grounds, followed by an examination of the documents to see whether they can be linked to one or more of the seven grounds.

208               The second question is whether upon its proper construction, s 58(5) requires the Tribunal, in considering whether or not there exist reasonable grounds, to determine or balance all aspects of the public interest. This would, if the appellant is correct, require the Tribunal to balance the claim that the disclosure of the documents would be contrary to the public interest against the evidence that disclosure would be in the public interest.

209               The third question is whether in considering the issue of reasonable grounds under s 58(5), the evidence of one witness whose opinion is not demonstrated to be unreasonable, can meet the test stated in authorities such as George v Rockett.

210               The starting point for a consideration of all of these questions is the decision of the High Court in George v Rockett. Although their Honours were in that case dealing with a different statute, the parties to the present proceedings accepted that the test stated by the High Court applies to the proper construction of s 58(5).

211               Thus, to apply the words of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ at 112, what the section requires is “the existence of facts which are sufficient to induce that state of mind [ie, reasonable grounds for suspecting it] in a reasonable person”. The Tribunal therefore needs to be satisfied that there are sufficient grounds reasonably to induce the requisite state of mind; George v Rockett at 113.

212               The formation of the statutory state of satisfaction therefore refects the long line of administrative law commencing with Lord Atkin’s speech in Liversidge v Anderson (1942) AC 206 and referred to in other authorities cited by the High Court in George v Rockett. McHugh and Gummow JJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 at [54] that the description of the statutory state of satisfaction as “reasonable” posits a criterion for the assessment of the factual elements which went to supply the state of satisfaction. This, of course, opens the decision to the possibility of judicial review.

213               What these authorities demonstrate is that the question of whether there are reasonable grounds is ultimately a question of fact to be tried on evidence; see Inland Revenue Commissioner v Rossminster [1980] AC 952 at 1000, cited with approval in George v Rockett at 112.

214               The appellant pointed to this line of authorities to support his submission (in relation to the first part of the question) that the two-stage approach is inconsistent with, and not supported by, the language of s 58(5). What was required, it was submitted, was a consideration by the Tribunal of all of the factual material and evidence on both sides free of any gloss resulting from the determination of other tribunals on other documents and other claims.

215               It is plain that the question of whether reasonable grounds exist must be a question of fact for the Tribunal. It is equally plain that it would be an incorrect construction of s 58(5) for the Tribunal to approach the question of reasonable grounds solely upon the basis of analogical support for a particular type of claim by reference to past authorities. This would be to permit class claims to be accepted, contrary to the warnings of the High Court in Sankey v Whitlam and the Full Court in Northern Land Council. Moreover, it would be to divert the Tribunal from the requirement that it address, as a question of fact, the issue of whether reasonable grounds exist.

216               However, that is not to say that to approach the question of whether reasonable grounds exist upon the basis that guidance may be obtained from previous authorities would be to proceed upon a wrong construction of the section. It seems to me that there is nothing in s 58(5) which prevents the Tribunal, in determining whether reasonable grounds exist, from looking to other cases for analogical support in the search for a state of satisfaction as to whether there are sufficient grounds reasonably to induce the required state of mind.

217               Nevertheless, it would be to proceed upon a wrong construction of s 58(5) merely to look to earlier authorities on other claims and then to determine whether the documents in the case before the Tribunal fall within the claims or grounds stated in the certificate.

218               There are some statements in the Tribunal’s reasons which suggest that this is what it did. They appear in particular at [77], [87] and [91] of the Tribunal’s reasons which I referred to at [203] – [204] above.

219               I am persuaded, nonetheless, that the Tribunal did not wrongly construe the section by adopting a two stage approach in the manner contended by the appellant. It seems to me that the Tribunal was alert to the need to decide, as a question of fact, whether reasonable grounds existed and to examine the documents in order to make that finding. It said at [29] that the test was ultimately based on findings of fact and not simply on the process of reasoning attached to a ground relied upon in the certificate. It also referred at [52] to the need for a “factual basis”. It repeated the reference to a factual basis in [56] of its reasons. I set out, or referred, to these paragraphs at [169] and [186] - [190] above.

220               It is true that at [52] of its reasons (see [186] above) the Tribunal said where a document attracts consideration of a claim that has been previously upheld by the Tribunal “it may not require a great deal more” to make a finding that reasonable grounds exist for the claim. But in my view, this does not indicate that the Tribunal fell into the error suggested by the appellant. All it reveals is a step in the Tribunal’s reasoning process in coming to the finding that reasonable grounds existed. That was a question of fact for the Tribunal and no question of law is raised.

221               I turn then to the second sub-question which is raised. That is, whether the Tribunal is required to balance all aspects of the public interest, both for and against the claim. The answer to this question turns upon whether the decision of a Full Court in Department of Industrial Relations v Burchill (1991) 33 FCR 122 (“Burchill “) (Davies, Jenkinson and Ryan JJ) ought to be followed or distinguished.

222               Burchill was not concerned with the construction of s 58(5) but, rather, of s 58(4). A certificate had been signed by a Secretary to the Department of the Prime Minister certifying that documents were exempt documents in accordance with s 34(2) of the FOI Act. Section 34(1) deals with cabinet documents and s 34(2) provides for a certificate to be given that a document is one of a kind referred to in s 34(1) and is not a document which contains purely factual material.

223               Section 34(4) of the FOI Act goes on to provide that a certificate signed by the Secretary certifying that the document is a cabinet document within the provisions of
s 34(1)(a) and that it does not contain purely factual material, establishes conclusively, subject to Part VI, that the document is an exempt document. On an application to refuse access to such a document, the Tribunal is to determine whether there exist reasonable grounds for the claim; see s 58(4).

224               In Burchill, a submission was put that s 58(4) poses the question whether, in all the circumstances of the case, it is reasonable to claim the exemption. Davies J described the argument, at 125, as “ingenious” and well and forcefully presented, but he rejected it. He did so because he said that s 58(4) poses a different question, namely, whether there are reasonable grounds for the claim that the document meets the criteria for exemption. His Honour cited the following passage at 125 – 126 from the decision of Deputy President Todd in Re Porter and Department of Community Services and Health (1988) 8 AAR 335 at 337 – 339:-

“To be ‘reasonable’, it is requisite only that they be not fanciful, imaginary or contrived, but rather that they be reasonable; that is to say based on reason, namely agreeable to reason, not irrational, absurd or ridiculous: see Re Actors’ Equity Association of Australia and Australian Broadcasting Tribunal (No 2) (1985) 7 ALD 584; Attorney-General’s Department v Cockcroft (1986) 10 FCR 180. It follows that it is a heavy thing for the Tribunal to reject a certificated claim.”

225               Thus, Davies J was of the view that the issue for the Tribunal under s 58(4) is whether the view expressed by the conclusive certificate was reasonably open. At 126 he cited and adapted a passage from a judgment of Starke J in Federal Commissioner of Taxation v Broken Hill South Limited (1941) 65 CLR 150 at 155. The effect of this was that the Tribunal has no authority to decide whether the certificate is correct, only whether there is material upon which the Tribunal could reasonably so find.

226               Jenkinson J drew attention to the distinction between the identity of the maker of the claim for exemption and the maker of the certificate in inter alia ss 34 and 36 and 58(4) and 58(5). However, he said, at 126, that nothing turned on this distinction. He agreed with Davies J that reasonable grounds existed for the claim.

227               Ryan J’s views were similar to those of Davies J. The effect of what his Honour said at 131 was that there is a difference between the power conferred on the Tribunal by s 58(1) and that which is conferred by ss 58(3) and 58(4). In particular, the power conferred under s 58(4) does not go beyond determining whether the document is an exempt document.

228               The principles stated by Davies J in Burchill were applied in Australian Doctors’ Fund Limited v Commonwealth of Australia (1994) 49 FCR 478 (“Australian Doctors’”). The case arose under s 58(5), a certificate having been signed by the Minister under s 36(3).

229               In Australian Doctors’, Beazley J was of the view at 484 that in undertaking a review pursuant to s 58(5), the Tribunal is not concerned with balancing different facets of the public interest. Her Honour referred at 485 to three earlier authorities which had held that s 58(5) does not require a balancing of grounds for and against a claim that disclosure would be contrary to the public interest; and observed at 491 that otherwise the “reasonable grounds” concept would be negated and balancing would be introduced through the back door; see Re Waterford and Treasurer of the Commonwealth (No 2) (1985) 8 ALN N37; Re Rae and Department of the Prime Minister and Cabinet (1986) 12 ALD 589; Re Peters and Department of the Prime Minister and Cabinet (No 2) (1983) 5 ALN N306 (“Re Peters”).

230               The effect of the submissions of Dr Griffith SC, for the appellant, was that Australian Doctors’ was wrongfully decided and ought not to be followed. Dr Griffiths submitted, formally, that Burchill too was wrongfully decided but the gravamen of his argument was that Burchill should be distinguished because s 58(4) is not concerned with the question of whether there exist reasonable grounds for a claim that disclosure would be contrary to the public interest.

231               Dr Griffiths emphasised the proposition that the question of what constitutes the public interest is not a static notion; see eg Sankey v Whitlam at 60. He relied on well-established authorities for the principle that the ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests including competing public interests; see eg Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395; see also Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 at 123-4. He submitted that this will usually be required.

232               It may be accepted that a determination of where the public interest lies requires a balancing of competing factors. But s 58(5) requires the Tribunal to determine whether there are reasonable grounds for the claim that the disclosure would be contrary to the public interest. Dr Griffiths answered this by submitting that the question of whether something is contrary to the public interest involves a consideration of factors on the other side of the ledger.

233               Although Dr Griffiths’ argument has some attraction, in my view it does not accord with the proper construction of s 58(5). The correct approach to construction was stated by Beazley J in Australian Doctors’ and in the authorities which her Honour followed in that case. Those authorities make it clear that the approach urged upon the court by Dr Griffiths would negate the reasonable grounds concept and permit the Tribunal, through the back door, to come to its own opinion of what is in the public interest. That is not what s 58(5) requires. As Morling J said in Re Peters at N307:-

“… the question is not whether the Tribunal holds that opinion. Rather, the question is whether reasonable grounds exist for the claim that disclosure would be contrary to the public interest.”

234               Burchill addresses the proper construction of s 58(4) rather than s 58(5). But it is clear, in particular from the judgments of Davies J and Ryan J, that in determining the question of whether there exist reasonable grounds for the claim, the Tribunal is not authorised to decide whether the certificate is correct but only whether there is material upon which the Tribunal could reasonably so find. As Davies J put it, at 125, the question is whether there are reasonable grounds for the claim that the document meets the criteria for exemption.

235               In my view, Burchill points strongly against a balancing exercise in determining the question raised by s 58(5). This is because the reasonable grounds required by s 58(5) for the claim that the document meets the criteria for exemption are that disclosure would be contrary to the public interest.

236               I do not consider that the approach which I have taken departs from the stated intention by Parliament that the provisions of the FOI Act are to be interpreted so as to further the objectives set out in s 3(1) of the FOI Act; see s 3(2). Section 3(1)(b) speaks of the creation of a general right of access to information limited only by exemptions including those necessary for the protection of essential public interests. But in News Corp Limited v National Companies and Securities Commission (No 4) (1984) 1 FCR 64 at 66 (“News Corp”), Bowen CJ and Fisher J were of the view that exemptions in the FOI Act are not to be narrowly construed. Their Honours said:-

“In construing our Act we do not favour the adoption of a leaning position. The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved. Each is to be interpreted according to the words used, bearing in mind the stated object of the Act.”

237               News Corp was followed by another Full Court in Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 36 FCR 111 at 114 – 115.

238               The third sub-question raised under this heading is whether the opinions of one witness whose views are not demonstrated to be unreasonable can be sufficient to support a finding of reasonable grounds. In my view this is a question of fact which cannot be the subject of an appeal under s 44(1) of the Act; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24] – [25] (Gleeson CJ, Gummow and Callinan JJ); [78] (Kirby J); [108] (Hayne J).

239               Even if this is not correct, there is nothing in the Tribunal’s reasons to suggest that it did not take into account the views of the witnesses called for the appellant. It is true that the Tribunal made no express findings about the evidence of Mr Harris and Professor Dixon. But it is clear from what the Tribunal said at [56] about Mr Rose’s evidence that it preferred the evidence of Mr Murray to that of the appellant’s witnesses.

Second Question – whether the Tribunal misconstrued the concept of public interest in s 36 of the FOI Act

240               This question was set out in [3] of the amended notice of appeal as follows:-

“Whether the Tribunal misconstrued the concept of public interest as referred to in s 36 of theAct, misdirected itself as to the test to be applied in relation to that concept construed within the context of the Act, failed to take account of relevant considerations, and constructively failed to exercise its jurisdiction, by:

a.                  considering that interference with the smooth carrying out of the role of governing, and causing intrusion and distraction, is contrary to the public interest;

b.                  failing to take any account, or any proper account, of the role of the Act in promoting democratic, open, accountable government as a critical aspect of the public interest;

c.                  considering that the public interest may depend upon the nature and motivation of the applicant for disclosure, and that disclosure may be contrary to the public interest if the documents relate to a topic of general interest;

d.                  failing to take account of the potential for further explanation or clarification of information contained within documents released under the Act as an aspect of the public interest;

e.                  considering that each and all of the seven types of claimed public interest relied upon by the Respondent could fall within the concept of public interest as referred to in s 36 of the Act;

f.                   failing to take proper and sufficient account of the fact that the Treasurer and Respondent decided during the course of the hearing to release some documents sought by the Appellant, whilst maintaining the claim that release of those very documents was contrary to the public interest.”

241               I have serious doubts as to whether the question, framed in these terms, discloses a pure question of law within the test stated in Birdseye at [18]. The question is redolent with the notion of judicial review rather than with a question of law. In Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 (“Clements”) at [59] – [67] Gyles J drew attention to the distinction between an appeal on a question of law under s 44 of the AAT Act and the supervision of the way in which the Tribunal carries out its review. His Honour said at [67] that the ample provisions of the Administrative Decisions (Judicial Review Act) 1977 (Cth) and s 39D of the Judiciary Act 1903 (Cth) make it unnecessary to stretch the proper role of s 44 of the AAT Act; cf the view of Gray ACJ and North J at [3] – [8].

242               Even if the question raises questions of law rather than questions of fact, I consider that there are a number of short answers to the proposition for which the appellant contends.

243               First, it seems to me that the entire question is predicated upon an assumption that the concept of the public interest can be defined within precise boundaries. That proposition was rejected by Lockhart J in Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health (1995) 56 FCR 50 at 59. His Honour there observed that opinions have differed and will always differ as to what is or is not in the public interest.

244               That is not to deny the forceful submissions of the appellant that the availability of information relevant to the performance of government is essential to the effective maintenance of the democratic system and that the FOI Act is a necessary supplement to the operation of responsible government; see Australian Capital Territory Pty Limited v The Commonwealth (No 2) (1992) 177 CLR 106 at 231 (McHugh J); Egan v Willis (1998) 195 CLR 424 at [42] (Gaudron, Gummow and Hayne JJ).

245               However, the difficulty which is immediately apparent from the various particulars of “jurisdictional error” found within this question is that they turn upon what is, or what is not, within the concept of public interest. But as Mason CJ, Brennan, Dawson and Gaudron JJ said in O’Sullivan v Farrer (1989) 168 CLR 210 at 216:-

“Indeed, the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at p 505, per Dixon J.”

246               It is plain that the categories of public interest are not closed and that different minds will differ as to what is, or what is not, in the public interest. Even if the question discloses a pure question of law in accordance with s 44(1) of the AAT Act, I do not consider that any error of law has been established. There is nothing in the subject matter or scope of the FOI Act which confines the discretionary factors to be taken into account in the manner suggested by the appellant.

Third Question – whether s 58C of the FOI Act excludes an obligation of procedural fairness in relation to cross-examination of witnesses

247               This question was set out as Question 4A in the amended notice of appeal as follows:-

“Whether and to what extent, on its proper construction, s 58C of the Act overrides the duty of the Tribunal to accord procedural fairness to the appellant under s 58(5) including, in particular, the duty to allow the appellant to be present during the hearing of the matter and to cross examine witnesses except insofar as such is likely to lead to disclosure of the contents of the documents claimed to be exempt.”

248               It seems to me that this raises a pure question of construction of s 58C which is a question of law. However, even if the answer to the question is favourable to the appellant, I am unable to say that the Tribunal committed an error of law.

249               This is because, as was frankly conceded by Dr Griffith, he is not in a position to say, and does not know, whether any of the evidence given by Mr Murray in the session from which the appellant and his legal advisers were excluded went beyond the reception of evidence of the content of the documents claimed to be exempt.

250               The Tribunal’s reasons at [63] – [64] make it plain that the appellant and his legal advisers were present at the first form of private hearing, ie the sessions from which the public was excluded. It is also clear that the appellant’s legal representatives were permitted to cross-examine the witnesses at those sessions but not as to the content of the documents claimed to be exempt. No complaint is made about this.

251               The gravamen of the complaint sought to be raised under this question goes to what took place in the truly private sessions from which the appellant and his advisers were excluded. If evidence was given at those sessions about matters going beyond the content of the documents claimed to be exempt, the appellant contends that the procedure adopted would not accord with the provisions of s 58C.

252               The Tribunal’s account at [64] of the nature of the oral evidence given by Mr Murray and Mr Gallagher at those sessions is not stated. It is for the appellant to make good its contention that the question of law upon which it relies arises in the proceedings. The concession fairly and properly made by Dr Griffith leads to the inevitable conclusion that the ground of appeal put forward under this question has not been made good.

253               In any event, where the Tribunal is to receive evidence of the content of the documents claimed to be exempt documents, no question of natural justice arises when the Tribunal exercises its power under s 58C(2) to exclude an applicant and his or her legal advisers from being present; see Department of Industrial Relations v Forrest (1990) 21 FCR 93 at 106, 118-119.

Fourth Question – error concerning communication with member of Minister’s staff

254               This question is set out at Question 7 in the amended notice of appeal as follows:-

“Whether the Tribunal erred in finding that a communication with a member of a Minister’s ‘private staff’ is effectively a communication with the Minister, where there was no evidence for such a finding;”

255               I am prepared to deal with this question on the footing that the “no evidence” ground raises a question of law; c.f. Clements at [61] – [67].

256               This ground is said to arise from the Tribunal’s view at [35] that a “communication with a member of the Minister’s private staff is effectively a communication with the Minister”.

257               I accept the appellant’s submissions that the proposition is not self-evident and the onus of proof was on the respondent; see s 61 of the FOI Act.

258               The respondent did not point to any evidence said to support such a finding. Instead, the respondent’s submission was that it was for the Tribunal to determine in relation to each document whether reasonable grounds existed and “it was a matter for the Tribunal, on the evidence, to make the determination required by s 58(5)”.

259               This does not advance the respondent’s argument. Indeed, its failure to point to some item of evidence highlights the difficulty. Nor can the submission that there was evidence in the appellant’s experts’ affidavits fill the gap.

260               However, it seems to me that in order for the appellant to succeed, the error must have contributed to the decision in some way; at least it must be impossible to say that it did not contribute; see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 378.

261               A difficulty arises because I do not know what documents are covered by the certificate. The respondent submits that the only document which is affected is document B040; see Tribunal’s reasons at [89].

262               In my view, even if the Tribunal was in error in its view that a communication with a member of the Minister’s private staff is effectively a communication with the Minister, there is nothing to indicate that the error contributed to the Tribunal’s final decision.

Fifth Question – construction of “reports of scientific and technical experts”

263               This was set out as Question 8A of the amended notice of appeal as follows:-

“Whether, on its proper construction, s 36(6)(a) of the Act extends or can extend to reports of experts such as econometricians, actuaries and statisticians (reporting in their capacity as such).”

264               The question seems to me to raise a question of construction of s 36(6)(a) of the FOI Act, which is a question of law.

265               In Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 at 563 (“Harris”), Beaumont J held that the reference to “technical experts” in s 36(6)(a) was intended to describe experts in the mechanical arts and applied sciences generally. His Honour held that it did “not necessarily follow” that an opinion of a legal expert fell within the definition.

266               The appellant submits that the decision of Beaumont J is either incorrect or, alternatively, that it is not determinative of the issue in the present case. I can see no error in the approach taken by the Tribunal in following the decision in Harris. Moreover, the Tribunal’s views of the proper construction of “scientific or technical” at [71] and [72] of its reasons seems to me to accord with the natural meaning. Accordingly, in my opinion, the Tribunal’s reasons do not disclose error.

267               For these reasons, the appeal is dismissed with costs.

Associate:

Dated: 2 August 2005