FEDERAL COURT OF AUSTRALIA

Shergold v Tanner [2000] FCA 1420

ADMINISTRATIVE LAW – Freedom of Information Act 1982 (Cth) – exempt documents – certificate by Minister that document is exempt – conclusiveness of certificate – availability of judicial review of Minister’s decision to grant certificate

WORDS AND PHRASES – “establishes conclusively”

Freedom of Information Act 1982 (Cth) ss 33A, 36

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth)

Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited (1995) 183 CLR 168 distinguished

McGrath v Goldsborough, Mort and Co Ltd (1932) 47 CLR 121 cited

F J Bloemen Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 360 distinguished

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

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied

Attorney-General v Blake [2000] 3 WLR 625 cited

The News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 cited

Arnold v Queensland (1987) 73 ALR 607 cited

Department of Cabinet v Hulls [1999] VSCA 117 cited

Arnot v United African Lands, Limited [1901] 1 Ch 518 referred to

Suffolk County Council v Mason [1979] AC 705 cited

Kerr v John Mottram, Limited [1940] Ch 657 cited

Dobbs v The National Bank of Australasia Limited (1935) 53 CLR 643 cited

Bache & Co (London) Ltd v Banque Vernes et Commerciale de Paris SA [1973] 2 Lloyd’s Rep 437 referred to

Brick and Pipe Industries Ltd v Occidental Life Nominess Pty Ltd [1992] 2 VR 279 referred to

Cannock Chase District Council v Kelly [1978] 1 WLR 1 referred to

Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201 referred to

Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 cited

Coastal States Gas Corporation v Department of Energy (1980) 617 F 2d 854 referred to

Renegotiation Board v Grumman Aircraft Engineering Corp (1975) 421 US 168 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Buck v Bavone (1976) 135 CLR 110 cited

Corporation of the City of Enfield v Development Assessment Commission (2000) 169 ALR 400 cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 cited

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 cited

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

Downey v Trans Waste Pty Limited (1991) 172 CLR 167 referred to

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 discussed

Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 referred to

R v Lord President of the Privy Council; Ex parte Page [1993] AC 682 cited

Duncan v Cammell Laird & Co Ltd [1942] AC 624 discussed

Ellis v Home Office [1953] 2 QB 135 discussed

Conway v Rimmer [1968] AC 910 discussed

R v Registrar of Companies; Ex parte Central Bank of India [1986] 1 QB 1114 discussed

R v The Secretary of State for Foreign Affairs; Ex parte Trawnik, The Times, 21 February 1986 discussed

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

No. V 64 of 1999

JUDGES: BLACK CJ, BURCHETT & FINKELSTEIN JJ

DATE: 10 OCTOBER 2000

PLACE: SYDNEY (via video link to MELBOURNE)

THE COURT ORDERS THAT:

1.                  Leave to appeal be granted.

2.                  The appeal be dismissed with costs.

BLACK CJ:

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal against an order made by Marshall J by way of the separate decision of a question before trial.

2                     The facts are set out in the reasons for judgment of Burchett J and I adopt what he has said about them. Burchett J has also set out the relevant statutory provisions. In substance, the question that Marshall J decided separately (pursuant to an order made under O 29 r 2 of the Rules) was whether the decisions of Mr Shergold to sign a certificate pursuant to the power conferred by s 33A(2) of the Freedom of Information Act 1982 (Cth) and a further certificate pursuant to the power conferred by s 36(3) of that Act are amenable to judicial review in a proceeding brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Judicial Review Act”) and s 39B of the Judiciary Act 1903 (Cth). Marshall J concluded that the decisions were amenable to judicial review and answered the question in the affirmative.

3                     This case raises important issues about which the Court heard full argument on the application for leave to appeal. The course adopted here of ordering the decision of questions separately from, and before, the trial was an appropriate one in the circumstances and it remains desirable that the question be determined at this stage in the proceeding. This is plainly a case in which leave to appeal should be granted. I proceed on that basis and I shall therefore refer to Mr Shergold (the applicant for leave to appeal) as the appellant and to Mr Tanner (the applicant in the proceeding for judicial review) as the respondent.

4                     The primary submission of counsel for the appellant was that the scheme of the Freedom of Information Act in relation to exempt documents and the review of decisions about them manifests an intention that there should be no unlimited right to judicial review of decisions to issue certificates under ss 33A(2) and 36(3) of that Act. They submitted that it was untenable that Parliament would have made precise, exhaustive and particular provision for limited merits review under Part VI of the Freedom of Information Act, while tacitly leaving open the possibility of judicial review on any and all grounds. They also submitted that judicial review on unlimited grounds was antithetical to the very notion of a “conclusive” certificate as provided for by ss 33A(2) and 36(3). The distinction, accepted by the learned primary judge, between a challenge to a decision to issue the certificates and a challenge to the certificates themselves was, they submitted, a distinction without a difference. The reason the conclusive certificate provisions exclude judicial review was that, on their proper construction, they prescribe a substantive rule that all preliminary steps, including the requirement for the attainment by the Minister of the specified state of “satisfaction” were directory only and did not go to the validity of the certificate. They were not jurisdictional provisions that purported to preclude the Court from inquiring into matters that did not go to the validity of the certificate. They argued that the position was analogous to that considered by the High Court in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 with respect to s 177 of the Income Tax Assessment Act 1936 (Cth).

5                     Counsel for the respondent replied that the Judicial Review Act and the Judiciary Act conferred jurisdiction on the Court to review decisions of the nature in question in this case and that the conclusive certificate provisions of ss 33A(2) and 36(3) did not, as a matter of construction, remove the jurisdiction so conferred. They did not, in any case, have effect as a substantive rule. They submitted that the scope of merits review of decisions under the Freedom of Information Act was indeed attenuated when a conclusive certificate had been issued, but that judicial review was left intact. Counsel also submitted that all aspects of the construction of the conclusive certificate provisions should be determined having regard to the presumptive rule against the exclusion of judicial review.

6                     Each of the Acts with which this case is primarily concerned, the Judicial Review Act, the Freedom of Information Act, and the Administrative Appeals Tribunal Act 1975 (Cth),was enacted as part of the process of reform of Commonwealth administrative law that occurred in the 1970s and early 1980s. Thus, in his second reading speech for the Administrative Decisions (Judicial Review) Bill 1977, the Attorney-General, Mr Ellicott, said:

“The Bill is a further step in the on-going review of Commonwealth administrative law that began with the establishment of the Administrative Review Committee – the Kerr Committee – in 1968 by the then Attorney-General. The proposals by that Committee have so far resulted in the establishment of the Administrative Appeals Tribunal and the Administrative Review Council and the enactment of the Ombudsman Act. Both the Administrative Appeals Tribunal and the Administrative Review Council are in operation; the Commonwealth Ombudsman has been appointed and it is expected that he will take up his office about the end of June.”

7                     Later in his speech the Attorney-General drew attention to the quite distinct roles of the Administrative Appeals Tribunal (providing merits review and the substitution of its own decision), the Commonwealth Ombudsman (with investigatory powers but no power to substitute his own decision) and judicial review by the Federal Court, which he noted would not be concerned at all with the merits of the decision under review but only with the question whether the action was lawful. Mr Ellicott then said:

“It will thus be seen that the three avenues of review, appeal on the merits to the Administrative Appeals Tribunal, investigation by the Commonwealth Ombudsman, and judicial review by the Federal Court of Australia, provide different approaches to the remedying of grievances about Commonwealth administrative action. Each has its own place in a comprehensive scheme for the redress of grievances.” (Emphasis added.)

8                     The Judicial Review Act did not come into operation until 1 October 1980, on which date the amendments effected by the Administrative Decisions (Judicial Review) Amendment Act 1978 (Cth) and the Administrative Decisions (Judicial Review) Amendment Act 1980 (Cth)also came into effect. It will be necessary to refer later to one aspect of the 1980 amending legislation.

9                     The essential elements in the new scheme of the Commonwealth administrative law were again referred to when the Freedom of Information Bill 1981 was introduced. In his second reading speech on the Bill, the responsible Minister, Mr Viner, having referred to the Westminster system of government and to the need to take care in adapting to the Australian system of government legal concepts derived from countries having different systems said:

“The proposals in each country must be considered in the context in which they are intended to operate. Thus, the present Bill must be viewed in the context of the systems of administrative review which have already been established by this Parliament, namely, the Commonwealth Ombudsman, the Administrative Appeals Tribunal, and the Federal Court of Australia operating under the powers conferred on it by the Administrative Decisions (Judicial Review) Act. In addition, there are differences in the nature of the parliamentary institutions in each country which affect the relationships between Ministers and the Parliament. The Bill thus contains provisions necessary to recognise the particular features of Cabinet government and to give proper weight both to the function of Ministers to make decisions relating to fundamental issues of government for which they have ultimate responsibility and to the special relationship between Ministers and their senior Officials.”

10                  Later Mr Viner said:

“The Freedom of Information Bill, together with other recent reforms in administrative law, thus emphasises the administrative accountability of Ministers and their departments. In common with that legislation it remains within the concept of a “Westminster-based” system of government, but forms part of an improved system of judicial and public scrutiny of decision-making processes within the Government.”

11                  The Minister’s discussion of the conclusive certificate provisions in the Bill makes no mention of judicial review, but his speech concludes with what I take to be a further reference to the existing legislation for the reform of Commonwealth administrative law:

“Together with the legislation already on the statute book, the Bill will advance the Government’s intention to make Commonwealth administration more responsive to the public need. I commend the Bill to the House.”

12                  The comprehensive and complementary nature of the various elements of what was then often called “the new administrative law” is emphasised by s 10 of the Judicial Review Act. Section 10(1) expressly provides that the rights conferred on a person by ss 5, 6 and 7 of the Act to make an application to the Court in respect of a decision are in addition to and, not in derogation of, any other rights that the person has to seek a review of the decision, whether by the Court, by another court, or by another tribunal, authority or person. The expression “review” is defined for the purposes of the section to include a review by way of “reconsideration, re-hearing, [or] appeal….”: see s 10(3). Discretionary powers are, however, conferred upon the Court by s 10(2) to refuse to grant an application for review where adequate provision is made by any law other than the Judicial Review Act under which the applicant is entitled to “seek a review by the Court, by another court, or by another tribunal…” of its decision: s 10(2)(b)(ii); see s 10(2) generally.

13                  It should also be noted that whilst the Judicial Review Act and the Freedom of Information Act are each comprehensive in their scope, some areas are excluded altogether from their operation and this is achieved by specific provisions. One of the effects of the Administrative Decisions (Judicial Review) Amendment Act 1980 was to remove from the scope of the Judicial Review Act decisions included in any of the classes set out in the newly-introduced Schedule 1. Moreover, the broad regulation-making power conferred by s 19 of the principal Act to declare a class or classes of decisions to be decisions that are not subject to judicial review by the Court under the Judicial Review Act was unaffected by the amending legislation and s 19 remains to this day in its original form. The Act also exempts certain persons and bodies from its operation. In some instances it does this generally and in others the exclusion is in relation to documents of a particular character: see s 7 and see also ss 5, 6 and 6A.

14                  One other aspect of the Judicial Review Act should be mentioned at this point. Section 4 provides that the Act has effect notwithstanding anything contained in any law in force at the commencement of the Act. This rendered ineffective any privative clauses existing as at 1 October 1980, when the Judicial Review Act came into force.

15                  In these circumstances, where comprehensive and complementary legislation was enacted to reform Commonwealth administrative law for purposes that include facilitating access to judicial review, it would seem highly improbable that the Parliament would have intended to limit the operation of the Judicial Review Act so as to exclude decisions of an administrative character made under an enactment, otherwise than by utilising the means expressly provided for by it in the Judicial Review Act itself, or by some other unmistakably clear language.

16                  In any event, although counsel for the appellant contended that the conclusive evidence provisions operate to establish a substantive rule, precluding any challenge to the decisions to issue the certificates, the practical effect is to deny judicial review and I see no reason why the general principle of construction relating to the exclusion of jurisdiction should not apply in such circumstances. In McGrath v Goldsborough, Mort and Co Ltd (1932) 47 CLR 121 at 135, Dixon J, in a frequently cited passage, said in relation to a privative clause in the Industrial Arbitration Act 1912 (NSW):

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

17                  In considering whether the conclusive certificate provisions of the Freedom of Information Act create a substantive rule of such a nature as to preclude a challenge to the decision to issue a certificate, it should be noted at the outset that ss 33A and 36 (and their companion provisions) are not expressed in terms that deal with the integrity of the decision-making process. In this respect, they differ markedly from the provisions of the Income Tax Assessment Act considered by the High Court in the two tax cases relied upon by the appellant: FJ Bloemen Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 360 and Deputy Commissioner of Taxation v Richard Walter Pty Ltd.

18                  The critical provisions in FJ Bloemen Pty Ltd and Richard Walter Pty Ltd were ss 175 and 177 of the Income Tax Assessment Act. Section 177(1) provides that the production of a notice of assessment is to be conclusive evidence “of the due making of the assessment” and s 175 provides that the validity of any assessment should not be affected by reason that any of the provisions of the Act have not been complied with. The combined operation of the two sections was critical to the outcome in each case: see FJ Bloemen Pty Ltd per Mason and Wilson JJ (with whom Stephen J and Aickin J agreed) at 375, and Richard Walter Pty Ltd per Mason CJ esp at 187, per Brennan J at 193-195, 197, per Deane and Gaudron JJ at 209-211, per Dawson J at 218 and per McHugh J at 240-243. There is no equivalent in the conclusive certificate provisions of the critical elements of ss 175 and 177(1) of the Income Tax Assessment Act.

19                  It was also submitted that the policy behind the conclusive evidence provisions of Freedom of Information Act was relevantly similar to policy behind s 177(1) of the Income Tax Assessment Act. I do not agree with this submission; a very important element of the scheme considered by the High Court in FJ Bloemen Pty Ltdand in Richard Walter Pty Ltd was the ample provision that was made within the scheme for a taxpayer to dispute his or her substantive liability to tax: see for example the observations of Mason CJ in Richard Walter Pty Ltd at 187-188.

20                  The conclusive certificate provisions must, of course, be considered within the overall context of the Freedom of Information Act. The principal object of that Act is to provide a legally enforceable right to obtain access in accordance with the Act to documents of a Commonwealth agency or official documents of a Minister, other than a document that is an exempt document: s 11(1). It is specifically provided that, subject to the Act, a person’s right of access is not affected by any reasons the person gives for seeking access or by the agency’s or Minister’s belief as to what those reasons might be: s 11(2). The mechanisms for access, including provisions for internal review and merits review by the Administrative Appeals Tribunal, are all provided for by the Freedom of Information Act itself. The concept of an exempt document has no relevance for purposes other than those of the Freedom of Information Act and this suggests that, likewise, a certificate in relation to an exempt document has no relevance other than for the purposes of access or non-access, or review by the Administrative Appeals Tribunal, all within the framework of the Freedom of Information Act itself. In general, the various categories of exempt documents are defined by reference to the circumstance that “disclosure of the document under this Act” (the Freedom of Information Act) would, or could reasonably be expected to have, particular consequences. Sections 33A and 36 are of this character.

21                  The existence of a conclusive certificate has the effect within the scheme of the Act of limiting the powers of the Tribunal, as provided for within Part VI. Whereas under s 58(1) of the Act, the Tribunal has wide powers of merits review where no certificate is in force in respect of a document, where a certificate is in force the powers of the Tribunal do not extend to reviewing the decision to give it: s 58(3). In the latter case, however, the Tribunal may determine whether there exist reasonable grounds for the claim for exemption. Section 58A then provides what is to occur where the Tribunal determines that there do not exist reasonable grounds for the claim. The point is made that, notwithstanding the determination of the Tribunal that there do not exist reasonable grounds for the claim, the Minister may make a decision not to revoke the certificate, in which case he or she is required to give notice in writing of the decision and to cause a copy of that notice (which must give reasons) to be laid before each House of the Parliament and to read the notice to the House in which the Minister sits: s 58A(3).

22                  The appellant relies upon the special provisions in relation to exempt documents, and the limited form of merits review that is provided in respect of them, as showing that there is a scheme with respect to those documents in which it is intended that judicial review should play no part. To my mind, however, this submission focuses too narrowly upon the conclusive certificate provisions and the sections within Part VI that are concerned with the attenuatedform of merits review that is provided, with restrictions to protect confidentiality, when certificates are in force. Looked at in the overall context of the Act, the provisions with respect to certificates and review in such cases take on a different complexion. The Act as a whole is a self-contained measure to achieve the objects I mentioned earlier. It provides for merits review and it is not suggested that in respect of the Freedom of Information Act generally that merits review and judicial review do not exist side by side as they do, generally speaking, in the overall scheme of Commonwealth administrative law. It is easy to see why, within the scheme of the Freedom of Information Act, special provision is made with respect to claims for access under the Act to documents having special characteristics, such as the documents that are exempt under s 33A or s 36. It can readily be appreciated why, within the overall scheme of the Act, the general policy of merits review by the Administrative Appeals Tribunal is departed from and a substantially attenuated form of merits review is provided. It is also easy to see why, in such cases, very specific provision is made to preserve confidentiality in respect of documents to which a certificate applies. None of this, however, suggests, of itself, that merits review and judicial review should not co-exist, serving their quite distinct purposes, as they do within the broader scheme of the Act and, again speaking generally, within Commonwealth administrative law.

23                  More specifically, the appellant relied upon the absence of any provision directed to the protection of the confidentiality of exempt documents in proceedings by way of judicial review in contrast to the careful provision made for the protection of exempt documents by ss 58C, 58E, 63 and 64. This was said to be a clear, and further, indication of an intention that judicial review should not be available. This submission may indeed derive some additional support from the circumstance that s 64(6) does make specific provision to protect documents produced to the Federal Court pursuant to s 46 of the Administrative Appeals Tribunal Act for the purposes of an appeal on a point of law or referral of a question of law to the Court. The absence of a similar provision in relation to judicial review could be seen as an indication that judicial review was not in contemplation, but this must be weighed against other considerations and other explanations for the omission. It is, for example, easy to see why the legislature, having made quite elaborate provision for the protection of documents before the Administrative Appeals Tribunal considered it necessary or desirable, for completeness, that the same scheme should make provision for the protection of those documents on appeal. So viewed, there is no necessary implication that the scheme was to exclude judicial review, particularly having regard to the circumstance that courts have, and not infrequently exercise, effective powers to protect confidentiality in a wide range of situations. Those powers are exercised routinely in cases where questions of public interest immunity arise.

24                  It was also argued that the availability of judicial review on grounds that would include “unreasonableness” involved the most unlikely incongruity of the Parliament having provided, on the one hand, for a certificate that might remain in force notwithstanding a determination by the Administrative Appeals Tribunal that there did not exist reasonable grounds for the relevant claim, yet leaving open judicial review on an issue of reasonableness on the other. The answer to this submission lies once again, it seems to me, in the distinction between merits review and judicial review. A claim made within the constraints of an application for judicial review that the making of a decision represents the exercise of a power that is so unreasonable that no reasonable person could have so exercised the power (to use the language of s 5(2)(g) of the Judicial Review Act) involves the demonstration of a substantially more extreme case than the demonstration, in the process of attenuated merits review, that there do not exist – as a matter of fact – reasonable grounds for a claim. It was suggested that the availability of judicial review would give rise to other such difficulties and that difficulties would arise if, for example, judicial review were sought on grounds that asserted a denial of natural justice, or that irrelevant considerations had been taken into account. Difficulties of this nature, however, are to be resolved by the ordinary processes of determining what it is that the legislation in question required of the decision-maker and by reference to the scope and objects of that legislation.

25                  Reliance was placed upon a passage in the judgment of the High Court in Victorian Public Service Board v Wright (1986) 160 CLR 145 at 152 which was said to be an expression of opinion by the Court that the scheme of the Freedom of Information Act was such as to exclude judicial review of documents that were the subject of a certificate of exemption, the scheme being “exhaustive” and leaving no scope for the operation of any other review mechanism by which the conclusivity of a certificate could be undermined. I do not read what their Honours said in this way. The passage relied upon appears in the following context :

“It will be observed that the Victorian Act, as it was, departs from the original Commonwealth scheme in two fundamental respects. In the first place, the review of decisions, other than internal review, for which it provides is by way of appeal to a court and not by way of application to an administrative tribunal. In the second place, the scheme for dealing with exempt documents is left incomplete. Under the Commonwealth legislation, clear and comprehensive provision was made for review in the case of documents, including cabinet documents, which were the subject of a certificate of exemption. It was expressly provided that in relation to them the claim for exemption was to be considered by a Document Review Tribunal especially constituted for the purpose and possessing an advisory function only. The review of decisions, other than internal review, was otherwise carried out under the Commonwealth Act by the Administrative Appeals Tribunal. It may also be observed that, in contrast to s 67(3) of the Commonwealth Act which required the Minister to do no more than have regard to a decision of the Document Review Tribunal, the Victorian Act makes no provision for the effect to be given to decisions of the Court in relation to documents covered by a certificate of exemption. Whilst there are limitations upon its powers in sub-ss (4) and (5) of s 50, no distinction is drawn between the effect of its decisions made in respect of the exempt documents to which those sub-sections refer and the effect of its decisions in relation to other documents covered by the Act. Clearly in relation to other documents the Court's decisions are intended to be binding.” (My emphasis of the passage in question.)

26                  The case concerned the construction of the Freedom of Information Act 1982 (Vic) and in this context I take their Honours to have been comparing the avenues of review that were provided for in the Victorian Act with those in the Commonwealth Act, and to have done so for the purpose of highlighting an omission in the Victorian legislation – a feature relevant to its construction. I take the reference to the provision being “comprehensive” to mean just that, and not to mean that it was exhaustive in providing the only avenue for review. To have gone that far would have been quite unnecessary for their Honours reasoning.

27                  It remains to consider the submission that, in any case, judicial review on unlimited grounds is contrary to the very notion of a “conclusive” certificate. This, however, is in the end really only another way of presenting the question of construction around which this case turns. A certificate granted in the due exercise of the powers conferred to do so will indeed be conclusive for the purposes of the Freedom of Information Act. It all comes back to the question whether the Freedom of Information Act manifests an intention that there should be no judicial review of a decision to issue a conclusive certificate.

28                  There is no express exclusion from the scope of the Judicial Review Act of decisions with respect to conclusive certificate, whether by their inclusion as one of the classes of decisions set out in Schedule 1 of the Judicial Review Act or by some other such express means. In my view, the other characteristics of the legislation that have been relied upon by the appellant fall short of disclosing a clear intention to create the suggested substantive rule or to exclude decisions from the scope of the Judicial Review Act by some other means. The same conclusions must necessarily follow with respect to the jurisdiction conferred on the Court by s 39B of the Judiciary Act.

29                  I would grant leave to appeal but I would, for the reasons I have given, dismiss the appeal. The respondent to the appeal should pay the costs of the appeal and the costs of the application for leave to appeal.

Associate:

Dated: 10 October 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BURCHETT J

30                  This application for leave to appeal raises fundamental questions concerning the operation of provisions of the Freedom of Information Act 1982 (Cth), and full argument was heard on the basis that, if the Court granted leave to appeal, it would go on to determine the appeal. In my opinion, it is plain beyond dispute, having regard to the principles laid down in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, that leave to appeal should be granted; the more difficult question is how the appeal should be determined. Accordingly, in these reasons, I shall refer to the applicant for leave as the appellant, and I shall consider the issues as upon an appeal.

31                  The controversy between the parties concerns the effect of two certificates, issued to operate “conclusively” pursuant to particular provisions of the Act, and whether their issue can be reviewed judicially on certain grounds put forward by the respondent.

32                  One certificate, given under s 33A(2) of the Act, was in the following terms:

“Commonwealth of Australia

Freedom of Information Act 1982

CERTIFICATE UNDER SECTION 33A(2)

This certificate is issued in relation to a request made to the predecessor of the Department of Employment, Workplace Relations and Small Business under the Freedom of Information Act 1982 (‘the Act’) by Lindsay Tanner M.P. dated 17 December 1997 for access to certain reports ‘arising from consultancies on waterfront reform that were awarded to [certain specified parties]’. Decisions on the request are the subject of an Application for Review to the Administrative Appeals Tribunal made by Mr Tanner, being proceeding number VG98/473.

For the purposes of subsection 33A(2) of the Act and pursuant to an instrument of delegation under section 33A(6) of the Act signed by the responsible Minister, I, PETER ROGER SHERGOLD, Secretary of the Department of Employment, Workplace Relations and Small Business, having examined each of the documents listed in the attached schedule (‘the documents’), being documents covered by the abovementioned request made by Mr Tanner, hereby certify that I am satisfied that:-

(a)               Each of the documents is an exempt document for a reason referred to in subsection 33A(1)(a) of the Act, namely that the disclosure of the document would, or could reasonably be expected to, cause damage to relations between the Commonwealth and one or more States or Territories; and

(b)               Each of the documents is an exempt document for a reason referred to in subsection 33A(1)(b) of the Act, namely that disclosure of the document would divulge information or matter communicated in confidence by or on behalf of the Governments of certain States and Territories and certain authorities of certain States and Territories to persons receiving the communications on behalf of the Commonwealth; and

(c)               Neither of the documents is a document containing matter the disclosure of which under the Act would be, on balance, in the public interest.

Dated this 30^th day of December 1998.

[signed] Peter R Shergold

Secretary of the Department of Employment

Workplace Relations and Small Business”

The schedule to this certificate listed a document as “Document entitled ‘Durable Reform – Waterfront/Maritime/Offshore: A Report to the Minister for Transport and Regional Development, by Dr Stephen Webster, dated 1 October 1997 [sic]”, together with a draft of it, and an attachment to the report “being a report relating to port services, by D. M. Webb, 16 September 1997”.

33                  The other certificate was given under s 36(3) of the Act in the following terms:

“Commonwealth of Australia

Freedom of Information Act 1982

CERTIFICATE UNDER SECTION 36(3)

This certificate is issued in relation to a request made to the predecessor of the Department of Employment, Workplace Relations and Small Business under the Freedom of Information Act 1982 (‘the Act’) by Lindsay Tanner M.P. dated 17 December 1997 for access to certain reports ‘arising from consultancies on waterfront reform that were awarded to [certain specified parties]’. Decisions on the request are the subject of an application for review to the Administrative Appeals Tribunal made by Mr Tanner, being proceeding number V98/473.

For the purposes of subsection 36(3) of the Act and pursuant to an instrument of delegation under subsection 36(8) of the Act signed by the responsible Minister, I, PETER ROGER SHERGOLD, Secretary of the Department of Employment, Workplace Relations and Small Business, having examined each of the documents listed in the attached Schedule (‘the documents’), being documents covered by the abovementioned request made by Mr Tanner, and having satisfied myself that the documents are documents to which paragraph 36(1)(a) of the Act applies, certify that I am satisfied that the disclosure of the documents, save those parts thereof expressly listed as exceptions in the third column of the Schedule, would be contrary to the public interest on the grounds that:

(i) Disclosure would be prejudicial to ongoing necessary reforms of the waterfront, offshore and maritime sectors of Australian industry.

(ii)               Disclosure would have adverse implications for the ongoing satisfactory conduct of the affairs of various Commonwealth and State instrumentalities, commercial organisations and individuals referred to in the documents, including the risk of industrial action.

(iii)             Disclosure would prejudice the ability of the Commonwealth to manage carefully the process of achieving reform of the waterfront, offshore and maritime sectors and would therefore impact adversely on the efficiency and productivity of Australian industry and the welfare of the Australian community generally.

(iv)             Disclosure would reveal opinion, advice and recommendation obtained in the course of the development of high level government policy on sensitive issues and used in discussions at Cabinet level.

(v)               Disclosure would lead to confusion and unnecessary debate resulting from the revelation of possibilities and options proposed by the consultants.

(vi)             Disclosure would tend to exacerbate the sensitive industrial relations situation in the waterfront, offshore and maritime sectors of Australian industry and may undermine the settlement of the major industrial dispute which badly disrupted Australia’s wharves during 1998.

(vii)           Disclosure would reveal frank consultations undertaken in confidence for the purposes of deliberations on waterfront, offshore and maritime reform. Disclosure would involve a breach of faith with the Commonwealth and State instrumentalities, commercial organisations and individuals consulted and would diminish the prospects of conducting necessary similar consultations in the future.

(viii)         Disclosure would not fairly disclose the reasons for certain decisions later taken and would involve unfairness to the persons involved as well as prejudice to the integrity of the decision making process.

(ix)             Disclosure would cause damage to relations between the Commonwealth and certain States and Territories because it would involve the revelation of confidential communications with those States and Territories and because of the sensitivity of matters discussed in the documents in the context of Commonwealth/State relations.

(x)               Disclosure would reveal confidential legal advice obtained by or on behalf of the Commonwealth, whereby the public interest principles underlying the doctrine of client legal privilege would be violated.

Dated this 30^th day of December 1998.

[signed] Peter R Shergold

Secretary of the Department of Employment

Workplace Relations and Small Business”

The schedule lists various reports and other documents dealing with ports and waterfront reform, including an opinion of senior counsel and a report from solicitors.

34                  There was a background to the issue of these certificates. By a request dated 17 December 1997, the request mentioned in the certificates, the respondent sought access under the Act to a number of reports dealing with waterfront and maritime reform. Following the partial denial of this request, and a further decision on internal review, the respondent made, on 30 April 1998, an application to the Administrative Appeals Tribunal for review of the latter decision, so far as it denied him access. On 27 August 1998, the responsible minister delegated to the principal officer of the Department of Employment, Workplace Relations and Small Business, the appellant, his relevant powers under ss 33A(2) and 36(3) of the Act.

35                  After the issue of the certificates, the appellant furnished, in some detail, his reasons for deciding to issue them.

36                  On 15 February 1999, the respondent instituted a proceeding in the Court seeking judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), or the Judiciary Act 1903 (Cth), of the appellant’s decisions to issue the two certificates. On 2 December 1999, a proposed Further Amended Application for an Order of Review was filed, and the matter was dealt with by consent on the footing that this represented the respondent’s claim. It contains grounds which may be summarised as follows:

A – Natural Justice

It is alleged in reliance on s 5(1)(a) of the Administrative Decisions (Judicial Review) Act (the Judicial Review Act) that the appellant “breached the rules of natural justice by making the decisions without affording the [respondent] any opportunity to be heard in relation to them”, and that there was a reasonable apprehension the appellant was biased, or that he was actually biased.

B – Lack of Jurisdiction and Authority

It is alleged in reliance on s 5(1)(c) and (d) of the Judicial Review Act that the “power to issue a certificate under s 33A(2) of the [Freedom of Information] Act does not arise in respect of matter in a document to which s 33A(5) applies”; that whether the disclosure of a document would be in the public interest is a precondition of the power to issue the certificate and a jurisdictional fact; that the certificate “extends to matters in the documents to which s 33A(5) applies” and that “[e]ach of the matters contained in the s 33A documents are [sic] matters the disclosure of which under the [Freedom of Information Act] would, on balance, be in the public interest”; that the power to issue a certificate under s 36(3) in relation to a document to which s 36(1)(a) applies is affected by s 36(5); that “the existence of purely factual material is a jurisdictional fact the determination of which is a pre-condition [sic] to the exercise of power under s 36(3)”; that s 36 “applies only to so much of the documents or parts thereof which constitute the opinion, advice or recommendation of those persons involved in the deliberative processes contemplated by s 36(1)(a)” and that the s 36 certificate “extends to matters in the documents which are not opinion, advice or recommendation at all and/or are not opinion, advice or recommendation of the kind identified”.

C – Improper Exercise of Power

It is alleged in reliance on s 5(1)(e) of the Judicial Review Act that the decisions were an improper exercise of power because the appellant failed to take relevant considerations into account; took irrelevant considerations into account; exercised his powers for a purpose or purposes other than the purpose or purposes for which each power was conferred; exercised his discretionary powers in bad faith; exercised his personal discretionary powers at the direction or behest of another; exercised his powers so unreasonably that no reasonable person could have so exercised the powers; and otherwise exercised his powers in a way that constitutes abuse of them.

D – No Evidence or Other Material

It is alleged in reliance on s 5(1)(h) of the Judicial Review Act that there was no evidence or other material to justify the making of the decisions in that there was none on which the appellant could reasonably have been satisfied of the matters certified.

E – Error of Law

It is alleged in reliance on s 5(1)(f) of the Judicial Review Act that the decisions involved an error of law in that the appellant misconstrued and misapplied the test of the “public interest” in ss 33A(2)(b) and (5) and 36(1)(b) and (3), thereby misinstructing himself as to the nature of the task required by the provisions.

F – Otherwise Contrary to Law

It is alleged in reliance on s 5(1)(j) of the Judicial Review Act as follows:

“The [respondent] refers to the matters set out at Parts A to E and contends that by engaging in the conduct and by making the decisions the [appellant] acted otherwise contrary to law in terms of [section] 5(1)(j) … of the Act”.

Whatever may be said of the allegations made under the headings A to E, what is alleged under heading F is plainly not a good pleading of any allegation that the decisions were “otherwise” contrary to law.

37                  On 16 March 2000, it was ordered, inter alia, that there be determined, separately from and before any other questions, the question whether the decisions of the appellant that he was satisfied the documents referred to in the certificates met the relevant criteria, and that the certificates should be signed by him, are amenable to review by the Court “as sought in the proposed further amended application for review”. The affirmative answer given at first instance is the subject of the appeal.

38                  A polemicist might claim the foundation of the Freedom of Information Act is the proposition that the general availability of information is a self-evident good, essential to the functioning of democratic institutions. In polemical mode, the poet and statesman Milton, making an appeal to the British Parliament to allow the widest dissemination of knowledge and opinion, supported the first part of this proposition in the Areopagitica: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”(emphasis added). But the practical concerns of the law are not favourable to such an unqualified proposition, as may be illustrated by the recent decision of the House of Lords in Attorney-General v Blake [2000] 3 WLR 625. When a Freedom of Information Bill was signed into law in the United States in 1966 (it seems that Sweden had already adopted such a law early in the 19^th century: Guy Braibant, Le droit administratif français, 2 ed (1988), 426), President Johnson said (Charles H Koch, Jr, Administrative Law and Practice, vol 2 (1985), 246 footnote 16):

“This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.”

This statement expressed the principle in terms that excepted what the security of the nation did not permit, and what could not be revealed without injury to the public interest. In Australia, the Freedom of Information Act has been authoritatively described as striking a balance between competing public interests. The joint judgment of Bowen CJ and Fisher J in The News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 at 66 states:

“In recognition of the delicate balance between the public’s interest in knowing and in expressing its opinion and the need in some cases to protect confidentiality and privacy, the Act provides a wide range of exemptions … .

It has been suggested that the form of s 3 is such that the court when considering rights of access should lean towards a wide interpretation of the provisions of the Act but when considering exemptions should lean towards a narrow interpretation. ...

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.”

With the agreement of Woodward J, I commented on this passage in Arnold v Queensland (1987) 73 ALR 607 at 626:

“In my view it is too late to regard s 3 as introducing any bias into the construction of the exemptions in the Freedom of Information Act. They are as much a part of the Act as s 11, which confers the right to access expressly subject to them and as a right relating to documents other than those which are exempt.”

Particularly in relation to s 33A, I added a reference to “the delicate balance which it maintains between the public interest in access to information and the requirements of inter-governmental relations within the Australian federation”, citing Professor Roscoe Martin (Where Governments Meet: Emerging Patterns of Intergovernmental Relations (1967)) for the proposition that “the federal system itself … depends for its viability on constructive relations among governments”. The same view of the proper approach to the construction of the Freedom of Information Act was taken by a unanimous Full Court (Davies, Wilcox and Einfeld JJ) in Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 114-115. Very similar is the unanimous view of the Court of Appeal of Victoria (Tadgell, Phillips and Batt JJA) in Department of Premier and Cabinet v Hulls [1999] VSCA 117 at para 55:

“Now, while there may well be a public interest in the disclosure of documents held by ministers and agencies (as was recognised by Mason CJ in Esso Australia Resources [Limited v Plowman (1995) 183 CLR 10] at 31-32), it is the FOI Act which is Parliament’s express declaration of the extent to which such disclosure is in the public interest. The Act contains exceptions, exemptions and discretions, and each is entitled to full weight.”

Cf the accommodations of conflicting interests involved in anti-discrimination statutes, to which Brennan CJ and McHugh J referred in IW v The City of Perth (1997) 191 CLR 1 at 15.

39                  The nature of the balance on which the whole of the Freedom of Information Act depends is most clearly revealed by its central affirmation in s 11(1):

“Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a)               a document of an agency, other than an exempt document; or

(b)               an official document of a Minister, other than an exempt document.”

40                  The classes of exempt documents referred to in s 11 are defined in Part IV, beginning with s 32. Section 32, as has been remarked in the authorities (see Austin v Deputy Secretary, Attorney-General’s Department (1986) 67 ALR 585 at 589; Arnold v Queensland at 625-626), shows that Parliament intended each exemption to be given its full weight. The section provides:

“A provision of this Part by virtue of which documents referred to in the provision are exempt documents:

(a)               shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents; and

(b)               shall not be construed as not applying to a particular document by reason that another provision of this Part of a kind mentioned in paragraph (a) also applies to that document.”

41                  It is in this setting that s 33A, the first of the provisions with which we are directly concerned in this case, must be understood. As was explained in Arnold v Queensland at 627, this section was carved out of s 33, which previously included a provision similar to but not the same as the present s 33A, by an amendment to the Act by Act No 81 of 1983. Having regard to this history, it is desirable to set out part of s 33 before setting out s 33A in full, as follows:

“33. (1) 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:

(i)     the security of the Commonwealth;

(ii)               the defence of the Commonwealth; or

(iii)             the international relations of the Commonwealth; or

(b)               would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization 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 is an exempt document for a reason referred to in subsection (1), he may sign a certificate to that effect (specifying that reason) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the document is an exempt document referred to in subsection (1).

…

33A. (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.”

42                  Following s 33A, Part IV contains s 34, dealing with Cabinet documents; s 35, dealing with Executive Council documents; and then s 36, which is headed “Internal working documents”. Section 36 provides:

“(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.”

43                  Subsequent sections in Part IV provide for exemptions in respect of documents affecting enforcement of law and protection of public safety; documents to which secrecy provisions of enactments apply; documents affecting financial or property interests of the Commonwealth; documents concerning certain operations of agencies; documents affecting personal privacy; documents subject to legal professional privilege; documents relating to business affairs etc; documents relating to research; documents affecting national economy; documents containing material obtained in confidence; documents the disclosure of which would be contempt of Parliament or contempt of Court; certain documents arising out of companies and securities legislation; and electoral rolls and related documents.

44                  The Act contains further provisions in respect of certificates under ss 33A and 36, and under sections 33, 34 and 35 which also provide for the furnishing of certificates. Section 36A authorises regulations to be made prescribing maximum periods “during which such certificates may remain in force”, and “the manner in which such certificates may be revoked before the end of such periods”. Significant provisions about certificates are included in Part VI, which is headed “REVIEW OF DECISIONS”. Provision is made, in that Part (by s 54), for internal review of certain decisions under the Act. Provision is also made (by s 55) for review by the Administrative Appeals Tribunal of decisions refusing to grant access to a document in accordance with a request, as well as of certain other decisions. Provision is made as well (by s 57) for complaints to the Ombudsman. The powers of the Administrative Appeals Tribunal, in proceedings involving the review of decisions under the Freedom of Information Act, are set out in ss 58 et seq. For present purposes, it is important to note the effect on those powers of the issue of a certificate of the kind here in question. Section 58(3), (4) and (5) provide as follows:

“(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.”

Section 58A provides:

“58A. (1) Where, in considering a question referred to in subsection 58 (4), (5) or (5A) in relation to a document in respect of which a certificate has been given, the Tribunal determines that there do not exist reasonable grounds for the claim to which the question relates, the appropriate Minister shall, not later than 28 days after the determination of the Tribunal is communicated to him, make a decision:

(a)               to revoke the certificate; or

(b)               not to revoke the certificate.

(2) Where a Minister makes a decision under subsection (1) to revoke a certificate:

(a) any claim made in the certificate is to be taken, for the

purposes of this Act, to have been withdrawn; and

(b) in a case where the certificate was given under subsection 33 (4) or 33A(4) - the Minister shall, forthwith upon the revocation of the certificate, inform the applicant of the existence or non-existence of the document to which the certificate relates.

(3) Where a Minister makes a decision under subsection (1) not to revoke a

certificate, he or she shall:

(a) cause notice in writing of the decision to be furnished to the applicant

forthwith; and

(b) cause a copy of the notice to be laid before each House of the Parliament within 5 sitting days of that House after the notice is so furnished; and

(c) on having caused a copy of the notice to be laid in the House in which

the Minister sits, read the notice to the House.

(4) A notice under subsection (3) shall 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.

(5) A Minister is not required to include in a notice under subsection (3) matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document under section 33, 33A, 34, 35 or 36.

(6) A Minister is not required to include in a notice under subsection (3) information as to the existence or non-existence of a document or the existence or non-existence of a state of fact if that information would, if included in a document of an agency, cause that last-mentioned document to be an exempt document under section 33, 33A, 34 or 35.

(7) Section 13 of the Administrative Decisions (Judicial Review) Act 1977

does not apply to a decision of a Minister under this section.

(8) Nothing in this section shall be taken to imply that a certificate under subsection 33, 33A, 34, 35 or 36 may not be revoked otherwise than in pursuance of a decision under subsection (1).

(9) For the purposes of this section, "appropriate Minister" means:

(a) in relation to a document in respect of which there is a certificate in force under section 33, 33A or 36 - the Minister who gave, or whose delegate gave, that certificate; or

(b) in relation to a document in respect of which there is a certificate in force under section 34 or 35 - the Prime Minister.”

Section 58B provides for the Tribunal to be constituted specially by three presidential members, or by a presidential member, in a case under s 58(4) or (5). Section 58C makes special provision with respect to the privacy of proceedings involving certificates and to ensure that the contents of documents not be disclosed. Section 58E makes further and special provision in relation to the production to the Tribunal of a document the subject of a certificate, in order to ensure that such production does not result in disclosure of its contents.

45                  Although much of the argument appeared to present the appeal as one concerned with issues of administrative and constitutional law, the key to the case is really a question of statutory construction. That question may be approached on at least two levels. At one level, it is a simple matter of the meaning of the sections which provide that, “subject to the operation of Part VI”, the certificate “establishes conclusively” the matters to which it relates. At another level, having regard to the entire statutory context of the provisions, there is involved the correct understanding of a complicated set of provisions enacted, as it seems to me, on the basis that indeed a certificate will be conclusive.

46                  With regard to the language in which ss 33A(2A) and 36(3) are expressed, it is necessary to note that the words “so long as it remains in force”, in each provision, do not cut down the effect of a certificate while it remains in force; they simply recognize that it may not do so for ever, having regard to s 36A and s 58A(1), (2) and (8). For as long as the certificate remains in force, the only qualification the statute places upon its establishing conclusively what it certifies is that it does so “subject to the operation of Part VI”. But that qualification seems to me very significant. Had the Parliament intended a certificate to be altogether beyond challenge, it could have relied on the absoluteness of the expression “establishes conclusively”, left unqualified. Parliament did not intend that. It intended to permit the very limited challenge in the Administrative Appeals Tribunal for which s 58 provides, subject to s 58A; and so it included the words “subject to the operation of Part VI”, in which those sections are contained. It did not go on to provide: “and subject to judicial review”, nor did it make special provision in respect of the consequences of the procedures of judicial review, as it did in respect of the consequences of Tribunal procedures in ss 58C, 58E, 64 and 65. If, despite the presence in the Act of Part VI, it was thought necessary, or at least desirable, to include in ss 33A and 36, and other sections authorizing the issue of certificates, the qualification on their conclusiveness “subject to the operation of Part VI”, it is difficult to see any reason why a corresponding qualification was not expressed in relation to judicial review, unless in truth Parliament did not contemplate the issue of conclusive certificates being subject to judicial review.

47                  A certificate which was itself liable to be overturned could not conclusively establish anything. But, subject only to Part VI, the Parliament has said these certificates do establish conclusively certain matters. This point was put forcefully nearly one hundred years ago by Vaughan Williams LJ in Arnot v United African Lands, Limited [1901] 1 Ch 518 at 521, when he referred to a submission as being that the word “conclusive” in s 51 of the Companies Act 1862 (UK) (by which it was provided “a declaration of the chairman” that a resolution has been carried “shall be deemed conclusive evidence of the fact”) “is not to be read as absolutely conclusive, but merely as primâ facie conclusive”. Vaughan Williams LJ said: “I cannot agree in that view”. Eighty years later, in F J Bloemen Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 360 at 379,Murphy J was similarly dismissive when he said of an argument that a conclusive assessment could be shown not to have been duly made:

“The appellants’ contention was that, despite s. 177(1), production of the notice or copy is not conclusive, but only inconclusive evidence of due making. Ultimately the appellants retreated to the extreme contention that production of the notice or copy was no evidence of due making.”

48                  So, in Suffolk County Council v Mason [1979] AC 705, where a “definitive map” was, by statute, “conclusive evidence” of the existence of footpaths, Lord Morris of Borth-y-Gest said (at 717):

“'Conclusive evidence' that there was a ‘right of way on foot only’ must negative or preclude any evidence that there was a right of way on a horse or in a motor car or that Marsh Lane was a road used as a public path. It seems to me that the clear purpose and policy of Parliament in prescribing the elaborate procedures set out in the various sections was that when the stage of having a definitive map was reached (and thereafter until later reviews) the stage of conclusion should be reached and (until later reviews) should be adhered to. If the map showed that Marsh Lane was a footpath it would then be impossible for anyone to assert that it was a bridleway or a carriageway, or was anything other than a footpath.”

His Lordship concluded (at 718):

“So if the definitive map shows a footpath and if Parliament has decreed that in such event the map must be regarded as ‘conclusive evidence’ it follows in my view that Parliament has said that no one must be heard to attack the truth of that which is ‘conclusive.’ It was a necessary and inevitable consequence of what Parliament enacted and in my view it must have been the policy and intention of Parliament that any undiscovered right of way, which, had it existed, might destroy the status of a footpath, should be regarded as being non-existent unless or until some opportunity for revision later arose. In so enacting Parliament with its ample powers was, in my view, adopting a most rational line. To add some further provision would have been superfluous. Finality is reached when something is unreservedly conclusive.”

There is no suggestion in these passages that some error, of law or fact, involved in the drawing up of the map Parliament decreed should be conclusive, could make any difference. But, if doubt could persist on that point, Lord Diplock dispelled it when he said (at 710) that “the entry on a definitive map of a right of way as a ‘footpath,’ even though it be as the result of a mistake, is conclusive evidence that there is no more extensive public right of passage over it than that of passage on foot.” And he returned to the theme (at 715):

“For these reasons I see no escape from the conclusion that in the instant case the first revised definitive map is conclusive evidence of a fact which it is now conceded has always been untrue … .”

49                  Likewise, in Kerr v John Mottram, Limited [1940] Ch 657, which concerned a provision in a company’s articles making the signed minutes of a meeting “conclusive evidence”, Simonds J (as Viscount Simonds then was) said (at 660):

“Now, art. 114 which I have read represents the bargain between the shareholders as to what is to be, as between them, the value and effect of the minutes of the company as recorded in its minute book and signed by the chairman, and their bargain is that it is to ‘be conclusive evidence without any further proof of the facts therein stated.’ I have no doubt that the words ‘conclusive evidence’ mean what they say; that they are to be a bar to any evidence being tendered to show that the statements in the minutes are not correct.

He went on to say that this was the “natural meaning” of the words, and to add:

“That is to say, the minutes are to be regarded as evidence which is not to be displaced and is conclusive as between the parties who are bound by them.”

50                  The High Court of Australia had taken the same view in Dobbs v The National Bank of Australasia Limited (1935) 53 CLR 643 (a case which was accepted by Mason CJ in Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited (1995) 183 CLR 168 at 184 as providing an analogy for the operation of a certificate made conclusive by statute) as regards a clause in a guarantee making a bank manager’s certificate “conclusive evidence of the indebtedness at [a] date of the customer”. In their joint judgment, Rich, Dixon, Evatt and McTiernan JJ said (at 651-652):

“Perhaps such a clause should not be interpreted as covering all grounds which go to the validity of a debt; for instance, illegality [their Honours referred to an old case]. But the manifest object of the clause was to provide a ready means of establishing the existence and amount of the guaranteed debt and avoiding an inquiry upon legal evidence into the debits going to make up the indebtedness. The clause means what it says, that a certificate of the balance due to the bank by the customer shall be conclusive evidence of his indebtedness to the bank.”

Starke J, in a separate judgment, was prepared (at 656) to except fraud from such a clause “in various mercantile contracts”. Both Dobbs v The National Bank of Australasia Limited and Kerr v John Mottram, Limited were followed by the Court of Appeal in Bache & Co (London) Ltd v Banque Vernes et Commerciale de Paris SA [1973] 2 Lloyd’s Rep 437, where a guarantee made a notice “conclusive evidence” of the accrual of a particular liability. Unless error were to appear on the face of the notice or fraud were shown, Lord Denning MR considered (at 439, 440) that “full effect” should be given to the conclusive evidence clause. In a more recent guarantee case, Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279, McGarvie, Marks and Beach JJaccepted (at 371) a certificate of the kind involved in Dobbs v The National Bank of Australasia Limited as “conclusive evidence of what is certified, save for manifest error.” But there, as appears from the first instance judgment (at 348), the exception of manifest error was incorporated in the language of the clause.

51                  It is easy enough to understand that a conclusive evidence clause in a contract may be interpreted so as to exclude fraud. But here a statute provides for certain matters wholly or partly of a political nature – such as damage to intergovernmental relations, the balance of public interest where such relations are concerned, and the public interest with respect to the disclosure or not of particular deliberative processes of government (issues which may be involved in certificates under ss 33A and 36), not to mention issues with respect to international relations, security, defence, and Cabinet or Executive Council deliberations (which may be involved in certificates under ss 33, 34 and 35) – to be established conclusively by a certificate, and expressly contemplates that a certificate may continue to be put forward by a Minister or the Prime Minister and remain conclusive, though it has been found no reasonable ground exists to support it. It is very difficult to see how that situation can accommodate the legal doctrine of fraud, or bad faith. Indeed, the remarks of McHugh J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd at 241, rejecting any possibility of a taxpayer going behind a conclusive assessment to show improper purpose or lack of bona fides are a fortiori. I am not suggesting the legislature condoned certificates that are actually devoid of any reasonable ground; but that the reasonable grounds envisaged are political, not legal, in nature, and are not susceptible of proof in the Administrative Appeals Tribunal, or in a Court. However, if there be an absence of reasonable grounds, still the certificate will be effective of its own force, “subject to the operation of Part VI”, and subject to no other restraint.

52                  That an attack on a conclusive certificate on the ground of fraud or bad faith in any court is not contemplated, is consistent with the provision made by the legislation (in s 58A) enabling the appropriateness of the certificate to be considered, not by a court, but by the Parliament. It is also necessary to consider who must bear the responsibility for a certificate: initially, either a Minister or in general the Secretary of the relevant Department (see the definition of “principal officer” in s 4), and ultimately the Minister or even the Prime Minister (by virtue of s 58A(9)). If it is true, as Mason and Wilson JJ said in F J Bloemen Pty Ltd v Commissioner of Taxation at 375-376, that the Income Tax Assessment Act 1936 “does not proceed upon the hypothesis that the Commissioner will be motivated in the exercise of his powers by improper or collateral purposes”, and that the Act “trusts the Commissioner and does not contemplate … a curial diving into the many official and confidential channels of information to which the Commissioner may have recourse to protect the Treasury” (see also Deputy Commissioner of Taxation v Richard Walter Pty Limited at 187), how much more must the same consideration apply when the involvement of the Prime Minister is expressly contemplated!

53                  It should be added that, in any case, a question of fraud or bad faith cannot be admissible on the pleading in the present matter. The rule on which this conclusion depends is of great antiquity, and has never been doubted. It was set down delicately in Daniell’s Practice of the High Court of Chancery, 5 ed (1871), vol 1, 276-277:

“Where it is necessary to allege fraud …, a general allegation of it in the bill will not be sufficient to shut out a demurrer; but the facts upon which such allegation is founded must be stated”.

Modern restatements are many. I content myself with referring to Cannock Chase District Council v Kelly [1978] 1 WLR 1, a decision of the Court of Appeal where Megaw LJ (with whom Sir David Cairns agreed) made it clear (at 6) that the rule embraces an allegation framed as one of “bad faith” or “lack of good faith”, “always involv[ing] a grave charge”, and Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201, where Kirby P, Meagher and Handley JJA elaborated (at 203-206) the requirements for a pleading of fraud as “not only rules of pleading and practice”, but also “rules of ethical conduct binding on members of the legal profession.”

54                  Apart from all these considerations, the respondent’s argument involves a startling incongruity. If the decision to issue a conclusive certificate is subject to unrestricted judicial review, one of the grounds must be unreasonableness in the well known sense expounded by Lord Greene MR in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223. On that ground, judicial review would enable the decision to be set aside. Yet, the Freedom of Information Act expressly provides (in s 58) for determination by the Administrative Appeals Tribunal of the question “whether there exist reasonable grounds” for the claim made in a certificate, while contemplating (in ss 58(3) and 58A) that the certificate may be unaffected by a determination that there do not. Not only that; Parliament made elaborate provisions in relation to what would follow such a finding. It is impossible that these provisions were devised only to be ignored in favour of an order setting the decision aside for Wednesbury unreasonableness.

55                  Parliament also made elaborate provisions for the protection, in proceedings in the Administrative Appeals Tribunal or in the Federal Court on appeal from the Administrative Appeals Tribunal, of the documents certified as exempt in a case where a certificate had issued: see ss 58C, 58E, 64 and 65. There is no corresponding provision with respect to proceedings under the Judicial Review Act. This is an eloquent omission.

56                  On top of that, if the original decision to issue a certificate can be reviewed judicially on general grounds, why not also the ministerial decision not to revoke it? If that be answered by reference to the obvious reliance of the Act upon Parliament as the ultimate tribunal to which the Minister is answerable, why does not the same consideration apply at the earlier stage, on the basis that the whole certificate procedure looks to a political solution overseen by the Parliament?

57                  The respondent argued that the express exclusions of s 13 of the Judicial Review Act in s 26(1A) and s 58A(7) of the Freedom of Information Act favour the availability of judicial review where it is not excluded. But both those subsections are standard exclusions of a right to reasons under s 13 in respect of decisions in relation to which there is provision for reasons in the Freedom of Information Act itself, and neither is concerned with a decision to issue a conclusive certificate. Relevantly, all that they show is Parliament’s awareness of the existence of the Judicial Review Act, which is not in doubt. Being aware of it, and being aware also of the provision in Part VI for limited review of a decision to issue a certificate, Parliament, as I have noted earlier in these reasons, qualified the exclusive effect of a certificate only by the words “subject to the operation of Part VI”.

58                  I shall now turn back to a broader examination of the nature of the statutory scheme, so far as it involves conclusive certificates. A number of the authorities refer to certificates which are “conclusive evidence”, so it is important to make the point that this expression does not appear in the Freedom of Information Act. A certificate of the kind with which we are concerned “establishes conclusively” that a document is exempt, or that its disclosure would be contrary to the public interest. In other words, it establishes something about the nature, in a relevant sense, of the document. So it has a substantive effect, since the Act operates upon categories of documents, and particularly (see s 11) by reference to whether or not they are exempt documents. A certificate under this legislation is not merely evidentiary; it may establish conclusively that there never was a relevant legal right under s 11. There is nothing strange about a certificate having such an effect, for even a certificate made conclusive evidence by some statute may operate in a similar way. In Deputy Commissioner of Taxation v Richard Walter Pty Ltd at 185, Mason CJ said:

“On the other hand, a rule of substantive law, which will not intrude into the exercise of judicial power, may be expressed in the form of a conclusive evidence provision.”

To borrow language Mason CJ also used (at 184-185), “a provision of that kind” – and, all the more, one expressed substantively, and not merely as evidentiary – may “attach definitive legal consequences to an … instrument” (such as a certificate). The importance of this is that no question of invalidity for attempted ouster of the jurisdiction of the Court can affect a substantive provision: ibid.

59                  The nature of the decision made when a certificate is issued assists the conclusion that general judicial review was not intended to be available. Under s 33(2), it can be said (without being completely exhaustive) that where a Minister is satisfied a document is exempt for the reason that its disclosure could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth, or would divulge information communicated in confidence on behalf of a foreign government or an international organization to the Government of the Commonwealth, a certificate may be signed to that effect, establishing conclusively that the document is exempt. It need hardly be emphasized that each of these matters is likely to be peculiarly in the knowledge of a Minister. Indeed, even in criminal cases, the Courts have been accustomed to accept and act upon certificates issued by Ministers in respect of analogous questions: Duff v R (1979) 28 ALR 663 at 692-695 (per Brennan, McGregor and Lockhart JJ); Duff Development Company, Limited v Government of Kelantan [1924] AC 797 at 824 (per Lord Sumner).

60                  The issues raised by s 33A(2) (with which we are directly concerned) are, in essence, whether disclosure of a document could reasonably be expected to cause damage to relations between the Commonwealth and a State, or would divulge information communicated in confidence on behalf of the Government of a State to the Government of the Commonwealth, and whether the disclosure would be, on balance, in the public interest. These are plainly questions involving political issues of high importance in a federation, the health of which as a polity must depend in great measure on the co-operation between its constituent governments. They are closely analogous to the questions raised by s 33, and may well have been thought to call, in some cases, for a definitive political decision by the Minister.

61                  It is unnecessary to expatiate on the questions of high policy that may be involved in Cabinet and Executive Council documents (ss 34 and 35), or on their political sensitivity.

62                  The issue raised by s 36(3) (the second provision with which we are directly concerned) is, in essence, whether the disclosure of a document would be contrary to the public interest, the document being one the disclosure of which would disclose an opinion, advice or recommendation bound up (in the way specified in s 36(1)(a)) with the deliberative processes involved in the functions of an agency or Minister or the Government. The certificate, in this case, does not establish conclusively the character of the document, but that its disclosure would be contrary to the public interest. The public interest in the maintenance of confidentiality in the deliberative processes of government, that is to say in the formation of policy as distinct from its final statement and implementation, is well recognized, not only in Australia, but in other countries. In the United States, a corresponding exemption has been justified as promoting candour in policy discussions within a department of government: Coastal States Gas Corporation v Department of Energy (1980) 617 F 2d 854 at 866 (United States Court of Appeals, District of Columbia Circuit). The Court explained (ubi cit) that the exemption for a deliberative document looks to “whether it reflects the give-and-take of the consultative process”, and “covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency”. In Renegotiation Board v Grumman Aircraft Engineering Corp (1975) 421 US 168 at 184, White J, delivering the Opinion of the Supreme Court, said the law “distinguish[es] between predecisional memoranda prepared in order to assist an agency decision-maker in arriving at his decision, which are exempt from disclosure, and postdecisional memoranda setting forth the reasons for an agency decision already made, which are not.” In France, reports and surveys intended to assist governmental policy deliberations may be exempt from access under the French law of freedom of information: Democracy, Participation and La Transparence: Freedom of Information in France and Australia, Australian National University, unpublished thesis by A C Johnson (1999) at 124, 128. Whether, in the case of a document falling within the terms of the Australian provision in s 36, disclosure would be contrary to the public interest is, again, a question involving a significant policy element, which may have been thought appropriate for political decision.

63                  It is to be observed that numerous other exemptions provided for in ss 37 et seq, which appear to raise more precise questions, or questions less dominated by considerations of government policy, have not been fortified by any provision for a conclusive certificate.

64                  Other than that the occasion of a certificate is “[w]here a Minister is satisfied” to the effect of the matter certified, and except to the extent that light is thrown on the task by the subject matter and context of the provisions so empowering the Minister, the Act offers no controlling guidance, to a failure to adhere to which judicial review, if available, might attach an invalidating consequence. The questions involved, in which policy looms so large, are left to the satisfaction of the Minister, to be reached by no marked channel. The conjunction of the predominance of policy in his decision and of the criterion of his satisfaction point away from an intention on the part of Parliament to subject the decision to judicial review. Each of those considerations is a weighty matter, as is shown by a number of authorities to which I shall refer; together, and in the context of the statutory scheme for the use of conclusive certificates, they are compelling.

65                  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274, Brennan CJ, Toohey, McHugh and Gummow JJ, in their joint judgment, referred to “the Minister’s satisfaction” as a condition of a decision. Their Honours went on (at 275-277) to discuss the effect of what they called “the subjective nature of the decision”, of which they said that, while it did not “immunise the decision from review, it [was] necessarily of relevance to the issue of whether there [had] been an error of law”. Their Honours quoted with approval the statement of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119:

“It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.”

If a decision does not stand barely as an objective determination, but is clothed in the satisfaction of an authority, this passage justifies some limitation on the availability of judicial review. In particular, the validity of a decision so reached depends upon the authority’s own view of the matter rather than upon any objective ascertainment of a jurisdictional fact: The Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 at 303-304, 308.

66                  But it will be observed that Gibbs J, and their Honours who wrote the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, allowed for the courts to interfere, in such a case, “if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it”, while acknowledging the difficulty of applying such a test to the authority’s satisfaction upon a matter “of opinion or policy”. Similarly, in Corporation of the City of Enfield v Development Assessment Commission (2000) 169 ALR 400, Gleeson CJ, Gummow, Kirby and Hayne JJ, in their joint judgment, said (at 411):

“Had s 35(3) been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, or were it to be so understood, … further questions would have arisen. In particular, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker.”

The present situation is far otherwise. The provisions authorizing the issue of conclusive certificates cannot be construed as requiring the existence of reasonable grounds, since s 58A expressly empowers the Minister to maintain such a certificate notwithstanding a finding pursuant to s 58 that reasonable grounds do not exist. That places the satisfaction which is here involved in a special category, explicable, I have concluded, by reference to the considerations of political policy that are involved.

67                  Even apart from a statutory recognition that the particular decision is not required to be supported by reasonable grounds, decisions on matters where policy is at large, or on matters which Lord Greene MR described in Associated Provincial Picture Houses Limited v Wednesbury Corporation (at 230) as “matters of high public policy”, policy entrusted to political authorities, may be very nearly beyond the ordinary grounds of judicial review. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 609, Gummow J commented on the passage from the judgment of Gibbs J in Buck v Bavone, which I have cited:

“This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.”

In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 411, Lord Diplock referred to those ministerial decisions that are made in the exercise of prerogative powers, commenting:

“Such decisions will generally involve the application of government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another – a balancing exercise which judges by their upbringing and experience are ill-qualified to perform.”

68                  Frequently, where a decision is subject to judicial review, at the heart of the review are the questions what factors was the decision-maker bound to take into account in making the decision, and to what factors was the decision-making process limited, or to put the matter differently, what factors could not be taken into account? In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 – 40, Mason J said:

“What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.”

Importantly for present purposes, since we are concerned with a power of the Minister to issue conclusive certificates, Mason J added (at 42) a comment on his own proposition “that relevant considerations may be gleaned from the subject-matter, scope and purpose of the Act”. This comment was that “where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.” When these principles are applied to the particular issues involved in the powers with which we are concerned, it is extremely difficult to see how any practical limitation can be implied; certainly none is expressed.

69                  Another issue which regularly arises in judicial review matters is whether the decision-maker was bound to accord to the complaining party a measure of natural justice, and, if so, what was that measure. But the nature of the questions to be determined by the Minister when considering the issue of a conclusive certificate prevents any question of natural justice arising. It has been so held in respect of the analogous questions involved in the consideration of a conclusive certificate by the Administrative Appeals Tribunal: Department of Industrial Relations v Forrest (1990) 21 FCR 93 at 106, per Northrop J; and see the remarks of Woodward J in The News Corporation Ltd v National Companies and Securities Commission (1984) 5 FCR 88 at 106.

70                  In summary, it may be said that the power to issue a conclusive certificate is conditioned upon the Minister being satisfied, not upon the existence of reasonable grounds. Although in many contexts a requirement of reasonable grounds could readily be implied, here the provisions of s 58A are to the contrary. Once it is accepted that there do not have to be reasonable grounds in the ordinary legal sense, though there obviously must be political reasons, and further that the statute prescribes no criterion other than the Minister’s satisfaction as to the bare propositions which may be certified, it becomes impossible to identify matters which must or must not be taken into account. Indeed, to make the conclusive certificate depend for its validity upon precisely defined legal grounds would be the antithesis of Parliament’s probable intention. To adapt the language of the High Court in Dobbs v The National Bank of Australasia at 651, the manifest object of the provision for a conclusive certificate was to provide a ready means of establishing the existence of the exemption, or of an ingredient of it, and avoiding an inquiry upon legal evidence into the facts out of which it arose.

71                  When the matter is viewed in this light, the various provisions of the Act dealing with conclusive certificates, and their consideration in the Administrative Appeals Tribunal and in the Parliament, reveal “a legislative intent that they should constitute an exhaustive definition” of the jurisdiction to grant relief in respect of such a certificate, to borrow the words used by Mason CJ, Deane, Gaudron and McHugh JJ in Downey v Trans Waste Pty Limited (1991) 172 CLR 167 at 171. Their Honours went on to state that it was “plain” that it would not have been the legislative intent to provide an express limitation, which the legislation there under consideration provided, and then have it “rendered nugatory by the existence of a general unlimited power” under a separate provision. Such a general power would be “repugnant” to the special scheme established by the Act. All of this reasoning is equally applicable to the present case, and in my opinion the statement made in the joint judgment of Gibbs CJ, Mason, Wilson, Deane and Dawson JJ in The Victorian Public Service Board v Wright (1986) 160 CLR 145 at 152 that, under the Freedom of Information Act, “clear and comprehensive provision was made for review in the case of documents, including Cabinet documents which were the subject of a certificate of exemption”, and that “[t]he review of decisions, other than internal review, was otherwise carried out under the Commonwealth Act by the Administrative Appeals Tribunal” should be accepted as meaning precisely what it says. Certainly, it is expressed in summary form, and it is an obiter dictum, though one of great weight, but it represents their Honours’ view of the legislation, and the word “comprehensive” cannot be reconciled with the respondent’s case.

72                  In argument, counsel engaged in a detailed examination of the decisions of the High Court upon the income tax legislation of the Commonwealth in F J Bloemen Pty Ltd v The Commissioner of Taxation and in Deputy Commissioner of Taxation v Richard Walter Pty Ltd. In my opinion, there is little profit to be gained from a meticulous comparison of provisions in the Freedom of Information Act with those there considered. The value of the decisions is in the principles adopted by the High Court, and in their demonstration that an Act of the Parliament may, in practical terms, exclude a party from what would otherwise be an orthodox approach to the Court. Whatever weight was given to particular provisions, the broad proposition stated by Mason and Wilson JJ in F J Bloemen Pty Ltd v The Commissioner of Taxation at 376 seems to me to be applicable, mutatis mutandis and in principle, here:

“The general tenor of the statutory provisions suggests that a taxpayer wishing to challenge a notice of assessment served upon him will be effectively confined to the Pt V procedures.”

73                  Failing other arguments, the respondent relied on the Hickman principle (so called after R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598). In R v Hickman, as Dawson J explained in Deputy Commissioner of Taxation v Richard Walter Pty Ltd at 222, “a formula was devised to reconcile the prima facie inconsistency between a statutory provision which limits the powers of a decision maker and another provision – a privative clause – which contemplates that any decision will operate free from any restriction. The formula,” his Honour continued, “which is a compromise, prevents a decision from being called in question provided that it is the result of a bona fide attempt to exercise the power to make it, it relates to the subject matter of the legislation and it does not on its face go beyond the power.” See also the judgment of Mason CJ in the same case at 179-180. But, as Gaudron and Gummow JJ pointed out in Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 at 631, “the Hickman principle is a rule of construction”. The problem, therefore, “is one of the meaning and effect of the statutory provisions in question”. For all the reasons I have attempted to set forth, those provisions, which operate substantively, do not contemplate a proceeding to invalidate a conclusive certificate of the kind envisaged by the respondent’s argument, just as the substantive operation of s 177 of the Income Tax Assessment Act 1936 did not attract the Hickman principle in the opinion of McHugh J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd at 240, 242 (see also the conclusion of Mason CJ at 188).

74                  For completeness, I should note that the appellant submitted the respondent was not entitled to rely on the Hickman principle, since no Notice of Contention had been filed. Reference was made to Order 52 rule 22(3) of the Rules. But that rule does not apply unless “a respondent proposes to contend that some matter of fact or law has been erroneously decided against him”. The respondent’s reliance on the Hickman principle does not involve such a contention. What the appellant was entitled to was sufficient notice of the point to avoid his being taken by surprise, and that he had: Turner v Trevorrow (1994) 49 FCR 566 at 571-572.

75                  I return to the question the subject of the appeal, to which I referred in paragraph 8 of these reasons. It asks whether the decisions, pursuant to which the certificates issued, are amenable to review by the Court “as sought in the proposed further amended application for review”. I have set out in some detail the grounds of that proposed further amended application in paragraph 7. So far as ground A alleges a denial of natural justice on the basis that the respondent should have been heard before the certificates issued, I have made it clear that in my opinion he had no right to be heard; so far as a denial of natural justice is alleged to have occurred by reason of a reasonable apprehension of bias, or actual bias, broad allegations of that sort, devoid of any pleading of any material fact, are quite impermissible. Nor could previous involvement in political decisions establish a relevant bias, since Parliament, when it entrusted the power to the Minister or a delegate being the principal officer of the agency (and no one else), must have appreciated that very often both the Minister and the principal officer would have had such an involvement. So far as, under ground B, it is alleged that power to issue a certificate under s 33A(2) does not arise in respect of matter to which s 33A(5) applies, s 33A(2)(b) expressly empowers the issue of a certificate in relation to this very question, and the point has no substance. The further propositions pleaded in respect of subsection (5) are equally baseless. So far as s 36(5) is relied upon, nothing is pleaded to which that reliance is relevant. So far as the terms of s 36(1)(a) are referred to, again, no facts are pleaded to raise any conflict between those terms and the relevant certificate. Under ground C, a miscellany of perfectly general allegations is made. These include relevant and irrelevant considerations, without any specification of any one such consideration, a bald allegation of “bad faith” and abuse of power, and Wednesbury unreasonableness. It is apparent from what I have already written that I do not think the decisions are amenable to review by the Court as sought in such a pleading. Under ground D, it is alleged there was no evidence or other material upon which the respondent could reasonably have been satisfied that the disclosure of each of the matters in what are called “the s 33A documents” could reasonably be expected to cause damage to relations between the Commonwealth and a State; would divulge information or matter communicated in confidence (as specified in the section); and would not be on balance in the public interest. It is further alleged that there was no evidence or other material upon which the respondent could reasonably have been satisfied that the disclosure under the Act of each of the matters in what are called “the s 36 documents” would be contrary to the public interest. None of these allegations is pleaded except in those blanket terms. Under ground E, error of law in the construction and application of the test of the “public interest” is alleged in respect of each of the decisions without any identification of the alleged misconstruction and misapplication. I have already commented on ground F in paragraph 7 of these reasons.

76                  It will be apparent that if, despite the use of the word “conclusively” in ss 33A and 36, some cases may raise a question determinable in the court in respect of a decision related to the signing of such a certificate, this pleading does not identify any case of that kind. In my opinion, the question for separate determination should have been answered in the negative.

77                  Accordingly, I would grant leave to appeal with costs; allow the appeal with costs; set aside the order under appeal and the costs order made below; and in lieu of those orders made below, I would order that the separate question the subject of the appeal be answered in the negative and that the respondent to the appeal pay the costs of the determination of the separate questions.

Associate:

Dated: 10 October 2000

On Appeal from a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

FINKELSTEIN J:

78                  The facts of this case are set out in the judgment of Burchett J.

79                  The question ordered to be determined by the trial judge is, in substance, whether the decision of the applicant, as delegate of the responsible Minister, to sign a certificate under s 33A(2) and a certificate under s 36(3) of the Freedom of Information Act 1982 (Cth), the effect of which is to “establish conclusively” that the documents to which each certificate relates are exempt documents, is amenable to review in proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth).

80                  To answer this question it is necessary to consider a number of provisions of the Freedom of Information Act and, in the course of so doing, decide what effect is to be given to a certificate that “establishes conclusively” the existence of a fact. The point at issue is an important one. It is a generally accepted principle that a public authority which derives its power from statute cannot validly act outside that power. It is a function of a court of competent jurisdiction, in proceedings for judicial review, to quash a decision made by a public authority in purported exercise of a power conferred by law. In this case the applicant says that the court cannot intervene. He argues that a certificate that “establishes conclusively” that a document has a particular character is immune from judicial review, for otherwise the certificate would not do the work parliament intended for it. If the applicant is correct, the fundamental principle that the court will intervene to ensure that the power of a public authority is exercised lawfully (R v Lord President of the Privy Council; Ex parte Page [1993] AC 682, 701) will be defeated.

81                  It is convenient to begin with a short, but necessarily incomplete, examination of the procedure by which Crown privilege, or public interest immunity as it is now called, could be claimed; the documents to which the certificates relate are documents that might be covered by that immunity.

82                  It has generally been assumed that the disclosure of important State documents will be contrary to the public interest. A clear case of when secrecy is required, is to protect national security. Another clear case is the protection of Cabinet papers. But there are not many clear cases. Hard and fast rules do not exist. Once, such issues rarely came before the courts. At common law the government had a prerogative right to refuse to produce documents. If a government was a party to proceedings it could not be ordered to make discovery. If a government was not a party to proceedings in which an official document was sought, it could rely upon its immunity or privilege not to produce documents if production was contrary to the public interest. The immunity was so significant that it could not (and it still cannot) be waived. Now, however, Crown proceedings legislation has placed the government on the same footing as all other parties with respect to discovery of documents. The government must produce a document, unless it can show that it is privileged from production on one ground or another.

83                  How does the government establish public interest immunity? Initially, if there was an objection to the production of a document it was sufficient for that objection to be taken by a Minister or the permanent head of a department, in the form of an affidavit or certificate. The affidavit or certificate was conclusive. For a time there was some doubt about this position. But all doubt was removed by the House of Lords in 1942 in Duncan v Cammell Laird & Co Ltd [1942] AC 624, a war-time case. The plaintiffs, who were representatives or dependents of men who had lost their lives when a submarine sank and were suing for negligence, sought production of the plans for the submarine. The First Lord of the Admiralty swore an affidavit stating that disclosure would be contrary to the public interest. The House of Lords held that if ministerial objection were taken in proper form that would be sufficient to establish that disclosure was contrary to the public interest. Viscount Simon LC said (at 638):

“The essential matter is that the decision to object should be taken by the minister who is the political head of the department, and that he should have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced. … Instances may arise where it is not convenient or practical for their political minister to act (eg he may be out of reach, or ill or the department may be one where the effective head is a permanent official), and in such cases it would be reasonable for the objection to be taken, as it has often been taken in the past, by the permanent head.”

84                  This decision amounted to an abdication by the courts of their proper function, leaving to the executive an unfettered power of refusing to produce evidence on its mere say-so. The case assumed that the Minister, or his permanent head, was in the best position to know if disclosure would be deleterious.

85                  In many jurisdictions the government took advantage of the absence of judicial review to claim privilege for innocuous documents to the detriment of the ends of justice. For example in Ellis v Home Office [1953] 2 QB 135 the plaintiff, a prisoner, claimed damages for injuries suffered through the alleged negligence of prison officers.His claim was defeated probably because he was denied access to prison reports. The trial judge had confessed to “an uneasy feeling that justice may not have been done”. The Court of Appeal could not help.

86                  Lord Denning led a “judicial rebellion” (so described by Prof Wade in Administrative Law (7th edition, 1994) at 849–850) against the strict view of Duncan by refusing to uphold a claim for public interest immunity solely on the strength of a certificate: see eg Merricks v Nott-Bower [1965] 1 QB 57; In re Grosvenor Hotel, London (No 2) [1965] Ch 1210; Wednesbury Corporation v Ministry of Housing & Local Government [1965] 1 WLR 261. In these cases Lord Denning MR, with the concurrence of Harman and Salmon LJJ, held that the court should inspect documents to determine their relevance to the ground of public interest raised, at least in the case of lower levels of government. The court was moving towards a position where it had the final say in determining the merits of an objection to disclosure.

87                  In 1968 the House of Lords took advantage of its practice note that it could overturn its previous decisions (see Practice Statement (Judicial Precedent) [1966] 1 WLR 1234) to overrule Duncan. In Conway v Rimmer [1968] AC 910 the plaintiff, a former police officer, sued his superior for damages for malicious prosecution. He sought production of five police reports that were relevant to the action. The Secretary of State resisted production claiming that the documents were privileged. The House of Lords reaffirmed the power of the courts to inspect the documents to determine whether they were privileged. The House of Lords held that it was for the court and not the executive to determine the merits of the grounds raised, and consequently whether or not the documents should be disclosed. The House then laid down the now well-known balancing test to determine whether disclosure should be made.

88                  The doctrine of public interest immunity usually arises in a proceeding, whether civil, criminal or administrative, because it is in a proceeding that a party, or the government, may be required to produce documents or give evidence. However, in most Australian jurisdictions, freedom of information legislation has been enacted to give members of the public a right of access to official government documents. At the Commonwealth level, the Freedom of Information Act 1982 is such an enactment. The Freedom of Information Act creates a general right of access to all documents of a department of state, referred to therein as an “agency”, and to the documents of a Minister, provided the documents relate to the affairs of an agency, unless the document is an “exempt document”: s 11(1).

89                  The categories of exempt documents are found in Part IV of the Freedom of Information Act. There are five broad categories of exempt documents that are relevant for present purposes. The first are documents the disclosure of which would cause damage to the security, defence or international relations of the Commonwealth or would divulge information communicated in confidence by a foreign government: s 33. The second category comprises documents the disclosure of which would cause damage to relations between the Commonwealth and a State or would divulge a matter communicated in confidence by the Commonwealth to a State or by a State to the Commonwealth: s 33A. The third category comprises Cabinet document or documents that would divulge Cabinet deliberations other than a document by which a Cabinet decision is officially published: s 34. The fourth category comprises documents submitted to the Executive Council, official records of the Executive Council and documents that would divulge the deliberations of the Executive Council other than a document by which the act of the Executive Council is officially published: s 35. The final category consists of internal working documents of the executive branch of government the disclosure of which would be contrary to the public interest: s 36.

90                  A person wishing to obtain access to an official document of the Commonwealth must make a written request for access and forward that request to the relevant agency or Minister: s 15. If the document is not in the possession of the agency, it must be transferred to the agency that is likely to have the document: s 16. In certain circumstances access to a document which is not an exempt document may be deferred: s 21. One circumstance where access may be deferred is if the premature release of the document would be contrary to the public interest: s 21(1)(c).

91                  When an agency or Minister receives a request for access to a document that may be an exempt document, the decision whether a document is an exempt document may be made by the responsible Minister, the principal officer of the agency (the permanent head) or by an officer of the agency acting within the scope of authority exercisable by him in accordance with arrangements approved by the responsible Minister or the principal officer of the agency: s 23.

92                  Not only may a decision that a document is an exempt document be taken by an authorised person, in the case of a document that may be exempt by reason of ss 33, 33A, 34, 35 or 36, where a Minister is satisfied that the document is an exempt document he may sign a certificate to that effect, specifying the reason. Such a certificate, so long as it remains in force, “establishes conclusively” that the document is an exempt document: see ss 33(2), 33A(2) and (2A), 34(2), 35(2) and 36(3). Further, in the case of a document that is exempt because of s 33A(1), the Minister may also sign a certificate to the effect that the document is not one the disclosure of which would be, on balance, in the public interest.

93                  It will be noted that what must be considered in deciding whether to sign a certificate differs from section to section. In some cases all that is involved is the determination of a matter of fact: eg is a document one that has been submitted to Cabinet for its consideration: s 34(1)(a). In other cases matters of judgment may be involved: eg would the disclosure of a document damage the security or defence of the Commonwealth: s 33(1)(a). On occasion matters of government policy might be taken into account: eg would it be contrary to the public interest to disclose internal working documents: s 36(1). The important point to observe is that the process of arriving at a decision whether to grant a certificate will often not raise political or policy considerations, though it sometimes will.

94                  Where, in relation to a request for access, a decision is made to refuse to grant access to a document, the decision-maker must give notice of that decision to the applicant, together with reasons for the decision: s 26. If a person is dissatisfied with a decision refusing access to a document in accordance with a request, he or she may apply to the Administrative Appeals Tribunal for the review of that decision: s 55. The Tribunal has power to decide any matter in relation to the request for access that could have been decided by an agency or Minister, and any decision of the Tribunal has the same effect as a decision of the agency or Minister: s 58. Accordingly, in a proceeding for review, the Tribunal considers a request for access de novo and decides for itself whether access should be granted. However, if in a proceeding before the Tribunal it is established that a document is an exempt document, the Tribunal cannot decide that access to the document is to be granted: s 58(2).

95                  The statement that in a proceeding before it, the Tribunal may decide any matter in relation to a request that could have been decided by the agency or Minister, is subject to an important qualification. When there is in force in respect of a document a certificate under ss 33A, 34, 35 or 36, the Tribunal cannot review the decision to give the certificate: s 58(3). However, if there has been a request for a specially constituted Tribunal (one comprising three presidential members, or consisting of a presidential member alone) the Tribunal does have power, if the applicant so requests, to determine whether there exist reasonable grounds for the claim that a document is an exempt document: s 58(4). In addition, in respect of a certificate signed under s 36, the specially constituted Tribunal may determine whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest: s 58(5).

96                  If the Tribunal determines that there do not exist reasonable grounds for a particular claim, the Minister must determine whether or not to revoke the certificate: s 58A(1). If the Minister decides to revoke the certificate the claim for an exemption is taken to have been withdrawn: s 58A(2). But if the Minister decides not to revoke the certificate the Tribunal cannot set aside his decision. In that event the Minister must give notice in writing to the applicant of his decision and cause a copy of the notice to be laid before each House of Parliament. The Minister must then read the notice to the House in which he sits: s 58A(3).

97                  The function of the specially constituted Tribunal in determining whether there exist reasonable grounds for a claim made by a certificate should not be confused with a claim made in proceedings for judicial review that a decision is invalid for unreasonableness. For the purposes of judicial review a standard of reasonableness is one measure by which it is possible to decide whether a statutory power has been properly used. If the exercise of the power is unreasonable then there has been an abuse of power. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 Lord Greene MR explained:

“[T]here may be something so absurd that no sensible person could ever dream that it lay within the power of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch 66, 90, 91 gave the example of a red-haired teacher, dismissed because she had red hair. This is unreasonable in one sense. In another it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one and other.”

Later (at 230) Lord Greene MR said:

“It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere …; but to prove a case of that kind would require something overwhelming….”

In Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 410 Lord Diplock said that this ground of review, to which he referred as “irrationality”:

“… applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

In England unreasonableness, or “Wednesbury unreasonableness” as it is often called, has two aspects. The first refers to a decision where it might fairly be said that the decision-maker has taken leave of his senses. The second is a decision which has proceeded by flawed logic: R v North and East Devon Health Authority; Ex parte Coughlan [2000] 2 WLR 622 at 647. This second aspect has not as yet been accepted in Australia: Epeabaka v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 411.

98                  The task of the Tribunal is very different. The Tribunal does not look for error in the manner in which the decision to grant a certificate was arrived at. It does not decide whether the decision to grant a certificate was so outrageous that it defies comprehension. Nor does it inquire whether the decision is logically flawed. The function of the Tribunal is more straightforward. It need only determine whether a reasonable person in the position of the Minister (or the delegate) could have arrived at the decision; that is, was there some basis in fact which justified the making of the decision: see the more detailed discussion by Beazley J in Australian Doctors Fund Ltd v Commonwealth (1994) 49 FCR 478. Nothing more is required of the Tribunal.

99                  The respondent, Mr Tanner, brought proceedings to review the decisions of the applicant to grant the two certificates. The action is brought pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 and s 39B of the Judiciary Act 1903. The respondent asks for a declaration that each decision is void and seeks an order quashing or setting aside each decision, and other relief as may be appropriate. The respondent alleges that in making the decisions the applicant breached the rules of natural justice, lacked the jurisdiction and authority to make the decisions, improperly exercised the power to make the decisions, made the decisions in the absence of evidence that would justify their making, and misconstrued and misapplied the relevant tests. The details of these allegations need not be considered for they are of no relevance to the question that presently requires resolution. All that must be determined is whether the action can go ahead.

100               Judicial review is the means by which a superior court supervises the conduct of a public authority, such as an inferior court or an administrative decision-maker. Once that control was by the prerogative writs and, to a lesser extent, by the remedies of declaration and injunction. Now the old procedures have been largely reformed by legislation such as the Administrative Decisions (Judicial Review) Act 1977 and by rules of court such as O 56 of the Rules of the Supreme Court of Victoria. The object of judicial review is to prevent a public authority from exceeding its powers. Such a body may exceed its powers by following an incorrect procedure or by falling into substantive error, whether of fact or law. Nowadays the grounds upon which the actions of public authority are controlled can be divided into the three groups identified by Lord Diplock in Council of Civil Service Unions (at 410), namely “illegality”, “irrationality” and “procedural impropriety”. Speaking generally, in none of these cases is the court concerned with the merits or correctness of the decision taken by the public authority, because the court is not acting as on appeal for the purpose of substituting for the decision that was made, the decision which it believes should have been made. To the contrary, the purpose of judicial review is to ensure that a body that is established by law, or that is empowered by law to act, is required to abide by law when it carries out its committed functions.

101               It is now beyond argument in this country that when a person, such as a Minister, is given power by statute to make a decision that would affect some person by altering his rights or obligations or by depriving him of some benefit or advantage, the decision is amenable to judicial review. For example, if a decision is taken for an ulterior purpose, the decision would be a nullity and liable to be quashed, and any resultant act would be set aside or a declaration made that it has no effect.

102               What I have just described is the general position. It is subject to exceptions. Take the case of what is sometimes called a “jurisdictional fact”, a very ambiguous expression. The power of a public authority to act in a particular circumstance might be conditioned upon the existence of a particular fact. If the “fact” does not exist, then the authority may lack the power to act; if it acts, it does so in excess of jurisdiction. But Parliament can give the public authority exclusive power to decide the existence of the fact upon which its jurisdiction depends: In Re Racal Communications Ltd [1981] AC 374 at 383; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369. In that event, an erroneous finding of the existence of the “jurisdictional fact” does not lead to the exercise of a power “in excess of jurisdiction” and the resultant decision will not be amenable to judicial review.

103               This appeal raises a distinct but somewhat similar issue. Each certificate that has been signed by the applicant, “establishes conclusively” that the documents to which the certificate relates are exempt documents. In the case of the certificate signed under s 33A it also “establishes conclusively” that the documents to which that certificate relates, do not contain matter the disclosure of which would, on balance, be in the public interest. The question whether the decisions to grant the certificates are amenable to judicial review depends upon what is meant when something is “establishe[d] conclusively”. The sole reason given by the applicant for denying to the court the power to review those decisions lies in the fact that each certificate “establishes conclusively” that the documents are exempt documents and that they do not contain matter the disclosure of which would on balance be in the public interest. Accordingly, so the argument goes, to permit judicial review would be to ignore the conclusive effect of the certificates. The applicant goes so far as to say that no matter in what manner the power to grant the certificates is exercised, whether the exercise of power is tainted by “illegality”, “irrationality” or “procedural impropriety”, the court cannot intervene. This is a bold submission. Should it be accepted?

104               There are four cases which are relevant to the point under consideration, two are decisions of the High Court and two are decisions of the English Court of Appeal. Before dealing with the Australian cases it is necessary first to say something of the constitutional background against which those cases must be understood. In each case, a taxpayer sought to attack a notice of assessment to income tax. . Under the Income Tax Assessment Act 1936 (Cth), income tax is levied upon “taxable income”, which generally means the amount remaining after deducting from the assessable income of the taxpayer all allowable deductions: s 17, but see now s 4-15 of the Income Tax Assessment Act 1997 (Cth). A taxpayer is required to furnish to the Commissioner of Taxation a return setting forth a full statement of the total income of the taxpayer derived in the year of income and of any deductions claimed by him: s 161. The Commissioner then makes an assessment of the taxable income and the tax to be levied: s 166. Section 167 provides that if a taxpayer defaults in making a return, or if the Commissioner is dissatisfied with a return that he has furnished, the Commissioner may make an assessment of the income tax that ought to be paid. Section 175 provides:

“The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.”

Section 177(1) provides:

“The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second Commissioner, or a Deputy Commissioner, purporting to be a copy of a notice of assessment, shall be conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal to the assessment, that the amount and all the particulars of the assessment are correct.

105               It is to be observed that s 177 draws a distinction between the procedure by which taxable income of a taxpayer is ascertained (“the due making of an assessment”) and the taxpayer’s substantive liability (“the amount and all of the particulars of the assessment”). Production of the notice is specifically expressed to prove both “the due making of an assessment” and “the amount and all the particulars” of the assessment.

106               Notwithstanding these provisions the power of the Commonwealth to impose income tax is not unlimited. It cannot levy an “incontestable tax”: see MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 at 639, 640. Accordingly, Part IVC of the Taxation Administration Act 1953 (Cth) provides the means by which all matters arising in relation to an assessment and determination of a taxpayer’s liability to pay income tax can be challenged.

107               The second matter which should be borne in mind is the approach taken to privative clauses that attempt to oust the jurisdiction of the High Court. Under s 75(v) of the Constitution, the High Court has jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Relevantly, the jurisdiction of the Federal Court is expressed in similar terms: see s 39B(1) of the Judiciary Act 1903. The Federal Parliament cannot prevent the High Court exercising its jurisdiction under s 75(v). But it can immunise a decision from collateral attack, provided the immunity does not extend to protect the decision from attack on the basis of want of a statutory power.

108               In R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615 Dixon J, as his Honour then was, explained the position:

“Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that is it reasonably capable of reference to the power given to the body.”

Accordingly the Commonwealth Parliament can preclude a decision being called into question provided it is the result of a bona fide attempt to exercise the power to make it, it relates to the subject matter of the legislation and it does not, on its face, go beyond power: see R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 at 418.

109               Section 39B(1) is, as I have said, substantially in the same terms as s 75(v) of the Constitution. Accordingly, the section vests in the Federal Court the jurisdiction which s 75(v) confers on the High Court (O’Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 251) save that the jurisdiction is not constitutionally entrenched and it may be repealed or amended.

110               The first Australian case is F J Bloemen Pty Ltd v Federal Commissioner of Taxation (1980) 147 CLR 360. The Commissioner of Taxation issued a notice of assessment showing that the taxpayer had an assessable income of $70,345. Shortly thereafter he issued a further assessment showing an assessable income of $282,700. An objection to the assessment was disallowed and the taxpayer appealed the disallowance to the Supreme Court of New South Wales. In the summons the taxpayer also asked for a declaration that the assessment was void and of no effect, thereby invoking the general jurisdiction of the Supreme Court. The Commissioner submitted that the court had no jurisdiction to determine the claim made or to grant the relief sought. In this regard he relied on ss 175 and 177.

111               Two questions arose for determination. The first was whether the word “assessment” in s 175 and s 177 meant, as the taxpayer alleged, an assessment duly made. The second question is whether the document is conclusive evidence that an assessment had been made. The High Court answered the first question in the negative. It held that an assessment is the ascertainment of the amount of taxable income and of the tax payable thereon which has legal force when the document is served on the taxpayer. An assessment is the notice of assessment which is served on the taxpayer, unless it appears from the notice or from some other document that the notice is not in truth a notice of assessment. The High Court answered the second question in the affirmative. Accordingly it found (esp at 375) that once the Commissioner took advantage of s 177 the taxpayer was precluded from contesting that the Commissioner had made an assessment or that in making the assessment he had complied with the statutory formalities.

112               The second Australian case is Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168. There the Commissioner made an assessment that the taxpayer was liable to pay income tax and commenced proceedings in the New South Wales Supreme Court to recover the amount of unpaid tax. The taxpayer appealed to the Federal Court against the assessment. It also brought a proceeding pursuant to s 39B of the Judiciary Act 1903 to restrain the Deputy Commissioner from proceeding with the recovery action. The Deputy Commissioner alleged that the Federal Court lacked jurisdiction to grant the relief sought. The following question was reserved for the consideration of the High Court: “Does the production of the notices of assessment preclude wholly or in part challenge or review of the [taxpayer’s] assessments in the proceeding under s 39B of the Judiciary Act 1903 (Cth), by reason of the operation of s 177 of the Income Tax Assessment 1936 (Cth)?”

113               The High Court rejected the contention that s 177 was an attempt to oust the jurisdiction of the Federal Court. Mason CJ said that the section left the jurisdiction of the court intact. He held (at 186) that s 177 prescribes a substantive rule that all procedural steps with which the Deputy Commissioner must comply are directory only and do not touch the validity of the assessment. Mason CJ did suggest (at 188), however, that the assessment might be vitiated by bad faith or improper purpose. Brennan J applied the Hickman principle and held, at 193-195, that the privative clause (s 177) is to be given effect despite non-compliance with the provisions governing the making of an assessment, subject to the restrictions mentioned in Hickman. Brennan J observed (at 197) that a purported assessment made in bad faith would forfeit the protection conferred by s 175 and s 177, because it would be a nullity. Deane and Gaudron JJ held that s 175 did not oust the jurisdiction of the court. They said that s 175 was part of the substantive law to be applied by the court in the actual exercise of its jurisdiction. Thus, the court has jurisdiction to determine whether an assessment is or is not in fact invalid, but s 175 and s 177 ensure that the answer must be in the affirmative. On the other hand, Deane and Gaudron JJ held that s 177 was inconsistent with s 75(v) of the Constitution and s 39B of the Judiciary Act to the extent that it purported to preclude the court from determining whether an allegedly invalid assessment is in fact invalid. To that extent they held (at 209-213) that the section should be read down. Dawson J also held that s 177 did not purport to cut down the jurisdiction of the court. He said (at 219) that the section operated upon the evidence in a particular case and did not restrict jurisdiction. Dawson J considered that the Hickman principle had no application to the case, either directly or by analogy. He said (at 219) that what s 177 does is to establish conclusively to the contrary of any contention by the taxpayer, that the assessment is neither tentative nor an abuse of power. Toohey J held (at 229) that s 177 operates according to its terms against the taxpayer. He rejected the contention that the section deprived the Federal Court of jurisdiction. He said (at 232) that s 177 constrains the jurisdiction of any court to inquire into the making of an assessment but it does not follow from that that the general jurisdiction of the court was excluded. Toohey J followed Bloemen in that regard. McHugh J also held that s 177 was not an attempt to oust the jurisdiction of the court. He said (at 242) that s 175 and s 177 together enact a substantive rule of law that is applicable in any legal proceedings in any court that defines the legal effect of the Commissioner’s conduct occurring in the course of making an assessment.

114               I can now turn to the English cases. The first of them is R v Registrar of Companies; Ex parte Central Bank of India [1986] 1 QB 1114. The case was concerned with the Companies Act 1948 (UK). That statute made provision for the registration of charges and the matters that had to be complied with before registration was to take place. Section 98(2) provided:

“The registrar shall give a certificate under his hand of the registration of any charge registered in pursuance of this Part of this Act, stating the amount thereby secured, and the certificate shall be conclusive evidence that the requirements of this Part of this Act as to registration have been complied with.”

This provision might be compared with s 177 of the Income Tax Assessment Act. It will be remembered that a notice of assessment conclusively establishes both the “due making” of an assessment and the “amount” assessed. Section 98(2) of the Companies Act 1948 is different. The registrar’s certificate conclusively established only that the requirements of the Act were complied with. In this respect it is similar to the first limb of s 177.

115               The respondent sought judicial review by way of certiorari to quash the decision of the registrar to register a particular charge. Various procedural deficiencies were relied upon to show that the charge should not have been registered and that the registrar had been mistaken when he permitted registration. It was found that the registrar had acted without jurisdiction when he registered the charge because there had not been compliance with the relevant provisions of the Act. His decision was therefore liable to be set aside, subject to the operation of s 98(2).

116               In its consideration of the effect of this provision, the Court of Appeal made an important point. It said that a “conclusive evidence” provision only operates according to its terms. So, what such a provision prevents is the introduction of evidence which would contradict that which is conclusively established by the provision. Accordingly, because the certificate granted by the registrar constituted “conclusive evidence” that the requirements of the Companies Act had been complied with, the respondent was not permitted to lead evidence to the contrary. In this connection it is useful to refer to some of the passages in the judgments of the members of the court.

117               Lawton LJ said (at 1169) that the words of s 98(2):

“ … are words excluding the admission of evidence, not words excluding the jurisdiction of the court to grant judicial review. If an unsecured creditor seeks judicial review solely on the ground that the chargee did not deliver the prescribed particulars he cannot put the necessary evidence before the court. But if he seeks judicial review on some other ground, as, for example, if he alleges a registration was obtained by some fraudulent means, and he can prove his case, maybe the court would grant judicial review.”

The decision of Slade LJ was to a similar effect. He said (at 1176):

“In the face of the ‘conclusive evidence’ provisions of section 98(2), I am driven to the conclusion … that sections 95 and 98 on their true construction confer upon the registrar the power to decide finally and conclusively all ancillary questions whether they be questions of fact or law, or mixed fact and law, which fall to be decided in determining whether the requirements of … the Act as to registration have been complied with in any given case. Even the clearest evidence that he had come to a wrong conclusion in answering any of these questions will not entitle anyone (except the Attorney-General…) to claim that he had acted beyond his powers, since section 98(2) would preclude the court from considering such evidence.”

His Lordship observed (at 1177) that the position might be otherwise if error were disclosed on the face of the certificate or where the certificate had been obtained by fraud.

Finally, Dillon LJ said (at 1180):

“As a matter of construction of the words used in ‘conclusive evidence’ formula in section 98(2), it does not preclude an application for judicial review of a decision of the Registrar. But it would have the effect, unless a gloss is written into the section, that an application for judicial review would be bound to fail because no evidence could be adduced to show that the certificate was wrong and that by error on the part of the Registrar or for some other relevant reason the requirements of Part III of the Act had not been properly complied with.”

118               The last case I wish to mention is R v The Secretary of State for Foreign Affairs; Ex parte Trawnik, The Times, 21 February 1986. This case establishes no new principle. It follows and applies R v Registrar of Companies; Ex parte Central Bank of India. However the statutes concerned are different and the facts are interesting. The appellants, two German nationals, lived at Gatow in West Berlin. British troops stationed in Germany proposed to establish a machine gun range at Gatow. The appellants were afraid that they would suffer nuisance from the noise of firing machine guns. They brought proceedings in a German court to enjoin the establishment of the firing range, but the court had no jurisdiction over the allied forces in West Berlin. The appellants then issued proceedings against the British Ministry of Defence seeking certain declarations on the ground of the anticipated nuisance. Section 40(3)(a) of the Crown Proceedings Act 1947 (UK) relevantly provided:

“A certificate of a Secretary of State: (a) to the effect that any alleged liability of the Crown arises otherwise than in respect of His Majesty’s government in the United Kingdom … shall, for the purpose of this Act, be conclusive as to the matter so certified.”

The Foreign Secretary issued a certificate purportedly under this section certifying that any liability of the Crown alleged in the action commenced by the appellants arose otherwise than in respect of Her Majesty’s government in the United Kingdom. The Ministry of Defence then applied to strike out the writ and statement of claim. The action was struck out against the Ministry of Defence, but the appellants were granted leave to add the Attorney-General and Major General Gordon Lennox as defendants. General Lennox was the British military commandant in Berlin.

119               The substitution of defendants led the Foreign Secretary to issue a certificate under s 21 of the State Immunity Act 1978 (UK). That section relevantly provided that:

“A certificate by or on behalf of the Secretary of State shall be conclusive evidence on any question (a) whether any country is a State for the purposes of Part I of this Act, whether any Territory is a constituent Territory of a Federal State for those purposes or as to the person or persons to be regarded for those purposes as the head or government of a State …”

120               The certificate issued by the Foreign Secretary certified that Germany is a State for the purposes of Part I of the State Immunity Act and that the persons to be regarded for the purposes of Part I as the government of Germany include the members of the allied forces in Berlin, including General Lennox. Finally, the Foreign Secretary issued a second certificate under the Crown Proceedings Act which was the same as the first, except that the action referred to was the action which had by then been amended by adding the Attorney-General and General Lennox as defendants.

121               The appellants brought proceedings to review the decisions to issue the certificates. A preliminary issue was ordered to be tried namely whether the decisions to issue the certificates were amenable to judicial review. The Divisional Court held that judicial review did not lie in respect of the certificates. The Court of Appeal (May, Ralph Gibson and Stocker LJJ) upheld the Divisional Court’s decision. May LJ, with whom Ralph Gibson LJ agreed, said this:

“As a matter of construction, the words ‘shall … be conclusive as to the matter so certified’ in section 40(3)(a) are equivalent to a provision that the certificate shall be conclusive evidence of the matters certified whether these be questions of fact or law or of mixed fact and law. Such words do not preclude an application for judicial review of the certificate but such an application, if based upon the proposition that that which has been certified is so clearly wrong that the certificate must be a nullity, would be bound to fail because the evidence which counsel would wish to call to prove this very thing could not be adduced.

In so far as the certificate under the State Immunity Act 1978 is concerned, the position is a fortiori having regard to the actual wording of s 21 of that Act.”

122               What these cases establish, to my mind, is that whatever is “conclusively established” cannot be contradicted. So, if a statute requires the treatment of certain “facts” as having been established, then those “facts”, whether they be true or false, cannot be controverted and they bind any person whose conduct depends upon or whose decision-making may inquire into the existence or non-existence of those “facts”. Accordingly, a proceeding which depends for its success upon evidence that is different from that which is “conclusively established” is bound to fail. This is not a matter of jurisdiction, in the sense that the court cannot entertain the action. It is merely the necessary result of an attempt to maintain a suit that requires the proof of facts, which cannot be proved because a statute provides that the facts are different. I leave out of account a provision which seeks to make conclusive the very issue for determination in a pending case. Such a provision might offend against both s 75(v) of the Constitution and s 39B of the Judiciary Act: see Richard Walter at 184-185.

123               The cases also show that it is possible for a statute to “conclusively establish” that there has been compliance with the procedural steps that must be undertaken before a decision is taken or before an act is performed. Such a provision may restrict judicial review. Whether or not a provision is intended to have that effect is simply a matter of construction.

124               It may also be possible (I do not decide whether it is) for a statute to “conclusively establish” that there has been compliance with the requirements of proper decision-making, namely a decision that is not “illegal”, “irrational” or “procedurally improper”, to repeat the classification of Lord Diplock. For a statute to have that effect, very clear language must be employed. As Lord Diplock observed in Council of Civil Service Unions, whether or not a decision-maker has acted illegally is par excellence a judiciable question. So also is the question whether a decision-maker has acted irrationally or has breached the rules of procedural fairness.

125               How do these principles affect the proceeding for judicial review that has been begun by the respondent? In my opinion two things are clear. The first is that the certificates do not deny to the court the jurisdiction to entertain the application. So much appears to be beyond controversy. The second matter is that having regard to the grounds upon which the respondent seeks to rely to establish that the grant of each certificate was in excess of power, he will not be required to lead evidence of facts which, whether true or not, are contradicted by what the certificates would otherwise establish. Put another way, the respondent’s case does not depend upon proof that the documents to which the certificates relate are not exempt documents. Nor does he seek to establish that the disclosure of the contents of any of those documents is not in the public interest. His attack purely and simply relates to the manner in which the applicant arrived at his decision to grant the certificates. In that process the respondent will not challenge what the certificates assert. If, during the hearing he attempts to embark upon that course, he will be prevented from doing so by the trial judge.

126               Thus it is apparent that I cannot accept that a certificate under s 33A or s 36, or for that matter a certificate under s 33 or s 34 or s 35, has the effect for which the applicant contends. Those sections do not provide expressly that a certificate conclusively establishes that the requirements for lawful decision-making have been satisfied. Nor do they do so by implication, in my opinion. This is to say, a certificate signed under any of those sections will do no more than establish conclusively the existence of a particular fact (or perhaps an issue of mixed fact and law), being either that a particular document is an exempt document or that it is not in the public interest that the document be disclosed. But none of those sections purports to establish the “due making” of the certificate as does s 177 of the Income Tax Assessment Act in relation to an assessment to income tax. Hence, effective judicial review is not excluded.

127               In the result I would grant leave to appeal for the reasons given by Burchett J but I would dismiss the appeal with costs.

Associate:

Dated: 7 October 2000

Counsel for the Applicant for leave to appeal: A Cavanough QC and W Harris

Solicitor for the Applicant for leave to appeal: Australian Government Solicitor

Counsel for the Respondent: K Bell QC and S McLeish

Solicitor for the Respondent: Maurice Blackburn Cashman

Date of Hearing: 21 August 2000

Date of Judgment: 10 October 2000