FEDERAL COURT OF AUSTRALIA

Tanner v Shergold, as delegate of Peter Keaston Reith, Minister of State for Workplace Relations & Small Business [2000] FCA 422

ADMINISTRATIVE LAW – judicial review of administrative decisions – whether judicial review of decisions to issue conclusive certificates under Part IV of Freedom of Information Act 1982 (Cth) available under Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether Part VI of Freedom of Information Act 1982 (Cth) provides exhaustive procedure for review of decisions to issue conclusive certificates - nature of “conclusivity” of conclusive certificates

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss5, 6, 13

Judiciary Act 1903 (Cth) s39B

Freedom of Information Act 1982 (Cth) ss33A, 36, 58, 58A

Department of Industrial Relations v Forrest & Anor (1990) 21 FCR 93 cited

Magrath & Anor v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121 applied

Bropho v State of Western Australia & Anor (1990) 171 CLR 1 applied

The Victorian Public Service Board v Wright (1986) 160 CLR 145 referred to

F J Bloemen Pty Ltd v The Commissioner of Taxation of The Commonwealth of Australia (1981) 147 CLR 360 cited

R v Hickman & Ors; Ex parte Fox & Anor (1945) 70 CLR 598 referred to

Transport Workers Union of Australia & Ors v Lee (1998) 84 FCR 60 referred to

Minister for Immigration & Multicultural Affairs & Anor v Ozmanian (1996) 71 FCR 1 applied

LINDSAY TANNER v PETER ROGER SHERGOLD, AS DELEGATE OF PETER KEASTON REITH, MINISTER OF STATE FOR WORKPLACE RELATIONS AND SMALL BUSINESS

V 64 OF 1999

MARSHALL J

MELBOURNE

6 APRIL 2000

THE COURT ORDERS THAT:

1.                  The separate questions be answered as follows:

(a)                The alleged decisions referred to in paragraphs 1 and 3 of the proposed further amended application for review dated 2 December 1999 are amenable to review by the Court as sought in the proposed further amended application for review.

(b)               The alleged conduct referred to in paragraph 2 of the proposed further amended application for review dated 2 December 1999 is not amenable to review by the Court as sought in the proposed further amended application for review.

2.         Costs reserved.

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

REASONS FOR JUDGMENT

1                     The substantive application before the Court is one for an order of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and the Judiciary Act 1903 (Cth). The further amended application for an order of review dated 2 December 1999 relies upon ss5 and 6 of the ADJR Act and s39B of the Judiciary Act 1903 (Cth). Pursuant to s5 of the ADJR Act, the applicant seeks to review two decisions made by the respondent on 30 December 1998. The decisions subject to challenge are ones to issue conclusive certificates under ss36(3) and 33A(2) respectively of the Freedom of Information Act 1982 (Cth) (“the FOI Act”). Under s6 of the ADJR Act, the applicant seeks a review of the conduct of the respondent engaged in for the purpose of making the relevant decisions. Section 39B(1) and (1A) of the Judiciary Act 1903 (Cth)is relied upon as an additional source of jurisdiction to challenge the relevant decisions.

2                     On 17 December 1997, the applicant, in his capacity as Opposition spokesperson for Transport in the Federal Parliament, made a request to the predecessor of the respondent’s department under the FOI Act for access to reports “arising from certain consultancies on waterfront reform”. The respondent examined the documents covered by the request, and being satisfied that they were documents to which s36(1)(a) of the FOI Act applied, certified (with some exceptions) that disclosure of the documents would be contrary to the public interest. Written reasons were provided for the respondent’s relevant state of satisfaction. Accordingly, a certificate was issued pursuant to s36(3) of the FOI Act. A second certificate was issued pursuant to s33A(2) of the FOI Act and reasons were provided for the issuing of that certificate.

3                     On 16 March 2000, the Court ordered that the following questions be determined separately from, and before, any other questions and before the trial:

“1.       Whether the alleged decisions referred to in paragraphs 1 and 3 of the proposed further amended application for review dated 2 December 1999 are amenable to review by the Court as sought in the proposed further amended application for review?

2.                  Whether the alleged conduct referred to in paragraph 2 of the proposed further amended application for review dated 2 December 1999 is amenable to review by the Court as sought in the proposed further amended application for review?”

4                     The trial of the separate questions occurred on 22 March 2000. Mr Cavanough QC, with Ms Harris of counsel, appeared for the respondent. Mr Bell QC, with Ms Doyle of counsel, appeared for the applicant.

5                     Mr Cavanough submitted that judicial review of a conclusive certificate is only possible where it is contended that the certificate is, on its face, not truly a conclusive certificate. See, for example, Department of Industrial Relations v Forrest & Anor (1990) 21 FCR 93. Otherwise, he submitted that the Court has no power to review such a certificate which is conclusive for all purposes.

6                     Mr Bell submitted that the applicant’s challenge was not to the certificates as such but to the decisions to issue them. He accepted that the certificates were conclusive. However, he emphasised that the applicant sought to impugn the respondent’s decisions to issue the certificates and did not seek to impugn the certificates themselves.

7                     The further amended application for review relies upon traditional administrative review grounds referred to in ss5 and 6 of the ADJR Act, including an alleged denial of natural justice. There is no issue that the impugned decisions are decisions of an administrative character which would ordinarily be subject to review under the ADJR Act. The respondent contends, in effect, that access to relief under the ADJR Act has been relevantly curtailed by the FOI Act. The applicant contends that the FOI Act deals with the question of merits review in respect of the issuing of a conclusive certificate but does not foreclose judicial review of the actual decision to issue a certificate.

8                     The above summary of the respective contentions of the parties is a truncated one which nonetheless captures the essence of such contentions which were supported by comprehensive written submissions containing reference to a large number of cases. However, the answer to the short point raised by the separate question involves an analysis of the relevant legislation and an appropriate construction of it. That is a task to which I now turn.

9                     Part IV of the FOI Act is entitled “Exempt Documents”. Sections 33A and 36 of the FOI Act are found within Pt IV of the FOI Act. Section 33A of the FOI Act provides as follows:

“(1)     Subject to subsection (5), a document is an exempt document if disclosure of the document under this Act:

(a)               would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or

(b)               would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

(2)               Where a Minister is satisfied that a document:

(a)               is an exempt document for a reason referred to in subsection (1); and

(b)               is not a document containing matter the disclosure of which under this Act would be, on balance, in the public interest;

the Minister may sign a certificate to that effect, specifying that reason.

(2A)     Subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the document:

(a)               is an exempt document referred to in subsection (1); and

(b)               does not contain matter the disclosure of which under this Act would, on balance, be in the public interest.

(3)               Where a Minister is satisfied as mentioned in subsection (2) by reason only of matter contained in a particular part or particular parts of a document, a certificate under that subsection in respect of the document shall identify that part or those parts of the document as containing the matter by reason of which the certificate is given.

(4)               Where a Minister is satisfied that information as to the existence or non-existence of a document as described in a request would, if contained in a document:

(a)               cause the last - mentioned document to be an exempt document for a reason referred to in subsection (1); and

(b)               not cause the last – mentioned document to be a document containing matter the disclosure of which under this Act would be, on balance, in the public interest;

the Minister may sign a certificate to that effect, specifying that reason.

(4A)     Subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the document:

(a)               would be an exempt document referred to in subsection(1); and

(b)               would not contain matter the disclosure of which under this Act would, on balance, be in the public interest.

(5)               This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

(6)               The responsible Minister of an agency may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to the principal officer of the agency his powers under this section in respect of documents of the agency.

(7)               A power delegated under subsection (6), when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the responsible Minister.

(8)               A delegation under subsection (6) does not prevent the exercise of a power by the responsible Minister.”

10                  Section 36 of the FOI Act provides that:

“(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.

(2)               In the case of a document of the kind referred to in subsection 9 (1), the matter referred to in paragraph (1)(a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).

(3)               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 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.

(4)               Where a Minister is satisfied as mentioned in subsection (3) by reason only of matter contained in a particular part or particular parts of a document, a certificate under that subsection in respect of the document shall identify that part or those parts of the document as containing the matter by reason of which the certificate is given.

(5)               This section does not apply to a document by reason only of purely factual material contained in the document.

(6)               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;

(b)               reports of a prescribed body or organization established within an agency; or

(c)               the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.

(7)               Where a decision is made under Part III that an applicant is not entitled to access to a document by reason of the application of this section, the notice under section 26 shall state the ground of public interest on which the decision is based.

(8)               The responsible Minister of an agency may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to the principal officer of the agency his powers under this section in respect of documents of the agency.

(9)               A power delegated under subsection (8), when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the responsible Minister.

(10)           A delegation under subsection (8) does not prevent the exercise of a power by the responsible Minister.”

11                  Part VI of the FOI Act is entitled “Review of Decisions”. Pursuant to s55(1) of the FOI Act, an application may be made to the Administrative Appeals Tribunal (“AAT”), for review of:

“a decision refusing to grant access to a document in accordance with a request.”

12                  In a case where a conclusive certificate has been issued, the powers of the AAT are limited. If a certificate has been issued under s33A the AAT is empowered to consider whether there are reasonable grounds for the claim that a document is an exempt document under s33A. See s58(3) and (4) of the FOI Act. Where a certificate is in force under s36 of the FOI Act, the AAT is empowered to determine whether reasonable grounds exist for the claim that disclosure of the document would be contrary to the public interest. See s58(3) and (5) of the FOI Act. In such a hearing the AAT is required to be constituted by three presidential members or by a presidential member alone. See s58B of the FOI Act.

13                  Section 58A(1) of the FOI Act deals with the situation where the AAT determines that reasonable grounds do not exist for the relevant claim that led to the issuing of a certificate. It requires the “appropriate Minister” to decide within 28 days after being informed of the AAT’s decision to make a decision whether to revoke or not to revoke the certificate. A decision not to revoke must be in writing and provided to Parliament. See s58A(3) of the FOI Act. The written notice of the decision is required by s58A(4) of the FOI Act to “state the findings of the Minister giving the notice on any material question of fact, the material on which those findings were based, and the reasons for the decision”. Section 58A(7) of the FOI Act is significant. It provides that:

“Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision of a Minister under this section.”

14                  Section 13(1) of the ADJR Act provides as follows:

“Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.”

15                  It can be readily discerned that the FOI Act, in Pt VI thereof, provides a limited form of merits review of decisions to issue conclusive certificates. Is it to be inferred from those provisions that judicial review of decisions to issue such certificates is ousted? I think not for the following reasons.

16                  The ADJR Act was in force at the time of the enactment of the FOI Act. As is demonstrated by s58A(7) of the FOI Act, where Parliament has intended that the ADJR Act not apply to a particular administrative decision that it would otherwise apply to, it has said so. One would expect that the provisions of ss5 and 6 of the ADJR Act would have been specifically excluded as referrable to decisions to issue conclusive certificates by the FOI Act itself if such was the intention of the legislature.

17                  Judicial review is not ordinarily ousted other than by a clear and unmistakable intention to do so. As Dixon J (as he then was) said in Magrath & Anor v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121 at 134:

“The general rule is that statutes are not to be interpreted as depriving superior Courts of power to prevent an unauthorized assumption of jurisdiction unless an intention to do so appears clearly and unmistakably.”

18                  In Bropho v State of Western Australia & Anor (1990) 171 CLR 1 at 17-18, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said as follows:

“One can point to other “rules of construction” which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such "rules" are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights (see, e.g., Benson v. Northern Ireland Road Transport Board), which would operate retrospectively (see, e.g., Maxwell v. Murphy), which would deprive a superior court of power to prevent an unauthorized assumption of jurisdiction (see, e.g., Magrath v. Goldsbrough, Mort & Co. Ltd.) or which would take away property without compensation (Attorney-General v. De Keyser’s Royal Hotel). The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear.”

19                  As at 1982 there was a general right to seek judicial review of decisions of an administrative character made under an enactment in reliance on the provisions of the ADJR Act. To deprive persons of that right in respect of certain administrative decisions referred to in the FOI Act it would be expected that Parliament make “its intention in that regard unambiguously clear”. It simply failed to do so. I reject the contention that Part VI of the FOI Act provides an exhaustive procedure by which decisions to issue conclusive certificates may be examined. The most that can be said is that it provides an exhaustive procedure for merits review as distinct from judicial review.

20                  Mr Cavanough referred to the judgment of the High Court in The Victorian Public Service Board v Wright (1986) 160 CLR 145 at 152 where Pt VI of the FOI Act is referred to as having made “clear and comprehensive provision … for review in the case of documents … which were the subject of a certificate of exemption”. That description of Pt VI of the FOI Act was made by way of comparison with Victorian legislation concerning freedom of information. It does not stand for the proposition that Part VI of the FOI Act deals exclusively with any challenge to any decision to grant a conclusive certificate.

21                  Mr Cavanough also submitted that “the proposition that judicial review is available in respect of decisions to issue conclusive certificates is antithetical to the very notion of a “conclusive” certificate”. However, the certificate remains conclusive for the purposes of the instant litigation. As Mr Bell concedes, the relevant documents will not be disclosed during the course of the litigation. If the decision to issue the certificates is infected by error which is amenable to judicial review, then a reconsideration of the exercise of the relevant discretions will be required. The Court will be vigilant to ensure that no disclosure of the relevant documents is made, inadvertently or otherwise.

22                  Mr Cavanough also relied on various judgments of the High Court dealing with the conclusive status of assessments made under taxation legislation. See, for example, F J Bloemen Pty Ltd v The Commissioner of Taxation of The Commonwealth of Australia (1981) 147 CLR 360. I do not find such cases to be of assistance in determining whether the FOI Act intended to exclude judicial review under the ADJR Act in respect of decisions to issue conclusive certificates under the FOI Act. As Mr Bell submitted, the taxation legislation is very different in nature from the FOI Act and evinces different policy considerations.

23                  I am similarly not assisted in dealing with the separate questions for consideration by any reference to a conclusive certificate being in the nature of a privative clause of the type considered in R v Hickman & Ors; Ex parte Fox & Anor (1945) 70 CLR 598. The questions before the Court essentially raise one issue, namely, whether as a matter of statutory construction the FOI Act has limited a litigant’s access to the ADJR Act in respect of decisions to issue conclusive certificates. If a decision to grant a conclusive certificate is a decision that is amenable to judicial review under the ADJR Act, it does not follow that the certificate ceases to be conclusive. At best, the exercise of the discretion to issue a certificate, as I have indicated, may require re-visiting if the action under the ADJR Act succeeds.

24                  I also do not find it necessary to deal with the submission that s39B of the Judiciary Act 1903 (Cth) confers jurisdiction on the Court to deal with the application made by the applicant in this case. The nature of that jurisdiction is discussed in Transport Workers Union of Australia & Ors v Lee (1998) 84 FCR 60. There is otherwise jurisdiction and power for the Court to deal with the applicant’s claims under s5 of the ADJR Act, which is not impeded by Pt VI of the FOI Act. In my view, the answer to the first question for separate determination is in the affirmative.

25                  Mr Cavanough submitted that the application insofar as it relies on the “conduct” of the respondent pursuant to s6 of the ADJR Act is redundant because the ambit of s6 of the ADJR Act is limited to circumstances where a decision has not yet been made. I agree with the view expressed by Sackville J in Minister for Immigration & Multicultural Affairs & Anor v Ozmanian (1996) 71 FCR 1 at 21 that:

“the review of conduct pursuant to s6 of the ADJR Act is confined to conduct in relation to a decision which has not yet been made.”

26                  Mr Bell made no submission to the contrary. The answer to the second question for separate determination is in the negative.

Order

27                  The order of the Court is:

1.                  The separate questions be answered as follows;

(a)    The alleged decisions referred to in paragraphs 1 and 3 of the proposed further amended application for review dated 2 December 1999 are amenable to review by the Court as sought in the proposed further amended application for review.

(b)   The alleged conduct referred to in paragraph 2 of the proposed further amended application for review dated 2 December 1999 is not amenable to review by the Court as sought in the proposed further amended application for review.

2.         Costs reserved.

Associate:

Dated:              6 April 2000