Federal Court of Australia

Walker Group Holdings Pty Ltd v Secretary, Department of Climate Change, Energy, the Environment and Water [2024] FCA 504

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the appeal.

3.    Subject to further order, order 2 of the orders made on 3 April 2024 be vacated upon the expiration of 28 days from the date of this judgment.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The Australian Conservation Foundation Incorporated (ACF) made two requests for access to documents of the Department of Climate Change, Energy, the Environment and Water under the Freedom of Information Act 1982 (Cth) (FOI Act). Those access requests, which were made as long ago as February and September 2019, were, broadly speaking, for documents relating to a proposed development by Walker Group Holdings Pty Ltd at Toondah Harbour in Queensland. The Department consulted Walker concerning the requests. Walker’s response was to object to the ACF being given access to certain documents on the basis, relevantly, that the documents were conditionally exempt from disclosure pursuant to s 47G(1) of the FOI Act. Walker claimed, in summary, that disclosure of the documents would, or could reasonably be expected to, adversely affect its lawful business, commercial or financial affairs and that the documents were therefore conditionally exempt pursuant to s 47G(1)(a) of the FOI Act. It also claimed that disclosure of the documents could reasonably be expected to prejudice the future supply of information to the Commonwealth for the purpose of the administration of a law of the Commonwealth and the documents were therefore conditionally exempt pursuant to s 47G(1)(b) of the FOI Act.

2    The Department’s internal decision-makers in respect of FOI requests decided to give the ACF access to some of the documents. Walker sought a review of those decisions by the Information Commissioner, though a delegate of the Commissioner exercised the discretion not to review the decisions. Walker then applied for a review of the decisions by the Administrative Appeals Tribunal. The Tribunal in due course affirmed the decisions to give access.

3    Walker appealed to this Court from the Tribunal’s decision pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

4    Walker contended that its appeal raised four questions of law. Those questions were, in summary: first, whether the Tribunal made an error of law in failing to deal with a submission it made regarding the unreasonable adverse effect of disclosing certain information in the documents for the purposes of s 47G(1)(a) of the FOI Act; second, whether the Tribunal made an error of law by misapplying the test in s 47G(1)(a) of the FOI Act; third, whether the Tribunal made an error of law in failing to deal with a submission it made regarding the adverse impact on future supply of information to the Commonwealth for the purposes of s 47G(1)(a) of the FOI Act; and fourth, whether the Tribunal made an error of law by failing to undertake the assessment required by s 47G(1)(b) of the FOI Act.

5    For the reasons that follow, each of those four questions of law must be answered adversely to Walker and its appeal must be dismissed.

The statutory context

The FOI Act

6    The FOI Act is intended “to give the Australian community access to information held by the Government of the Commonwealth”: s 3(1) of the FOI Act. Section 11 of the FOI Act creates a legally enforceable right for members of the public to obtain access to government documents other than “exempt” or “conditionally exempt” documents: ss 11; 11A; ACF v Secretary, Department of Climate Change, Energy, Environment [2023] FCA 1005 (ACF (2023)) at [19].

7    Under s 11A(3) of the FOI Act, the agency or Minister subject to an access request must grant access to the information unless a relevant exemption or conditional exemption applies. The agency or Minister is not required to grant access to an exempt document (s 11A(4)) but must grant access to a conditionally exempt document unless access would “on balance, be contrary to the public interest” (s 11A(5)).

8    Section 47G of the FOI Act provides for public interest conditional exemptions in respect of certain documents that disclose certain information concerning a person’s business commercial or financial affairs. It provides as follows:

47G Public interest conditional exemptions—business

(1)     A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:

(a) would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or

(b) could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.

9    If a request is made for access to a document containing information relating to a person’s business, commercial or financial affairs, where it appears to the agency or Minister that the person might reasonably wish to make a contention that s 47G applies, the agency or Minister must not give access to the document unless the person or organisation concerned has been consulted: s 27 of the FOI Act.

10    A decision-maker must have regard to any guidelines published by the Commissioner for the purposes of FOI Act (the FOI Guidelines) when exercising any power or function under the Act: s 93A of the FOI Act; ACF (2023) at [23]. The Guidelines explain (at [6.184]) that conditional exemption under s 47G “depends on the effect of disclosure rather than the precise nature of the information itself”, but that the information “must have some relevance to a person in respect of his or her business or professional affairs or to the business, commercial or financial affairs of an organisation or undertaking.”

11    The FOI Guidelines include the following guidance concerning s 47G(1)(a) of the FOI Act (at [6.187]-[6.188]):

Unreasonable adverse effect of disclosure

6.187 The presence of ‘unreasonably’ in s 47G(1) implies a need to balance public and private interests. The public interest, or some aspect of it, will be one of the factors in determining whether the adverse effect of disclosure on a person in respect of his or her business affairs is unreasonable. A decision maker must balance the public and private interest factors to decide whether disclosure is unreasonable for the purposes of s 47G(1)(a); but this does not amount to the public interest test of s 11A(5) which follows later in the decision process. It is possible that the decision maker may need to consider one or more factors twice, once to determine if a projected effect is unreasonable and again in assessing the public interest balance. Where disclosure is not unreasonable, the decision maker will need to apply the public interest test in s 11A(5). This is inherent in the structure of the business information exemption.

6.188 The test of reasonableness applies not to the claim of harm but to the objective assessment of the expected adverse effect. For example, the disclosure of information that a business’ activities pose a threat to public safety, damage the natural environment; or that a service provider has made false claims for government money may have a substantial adverse effect on that business but may be reasonable in the circumstances to disclose. Similarly, it would not be unreasonable to disclose information about a business that revealed serious criminality. These considerations require a weighing of a public interest against a private interest, preserving the profitability of a business, but at this stage it bears only on the threshold question of whether the disclosure would be unreasonable.

(Footnotes omitted)

12    In relation to s 47G(1)(b), the FOI Guidelines explain (at [6.198]) that “this limb of the conditional exemption comprises two parts: a reasonable expectation of a reduction in the quantity or quality of business affairs information to the government” and “the reduction will prejudice the operations of the agency.” According to the Guidelines, there must also be a “reasonable likelihood that disclosure” would cause “a reduction in both the quantity and quality of business information flowing to a government”: FOI Guidelines at [6.199]. Paragraphs [6.200] and [6.201] of the FOI Guidelines provide as follows:

Where the business information in question can be obtained compulsorily, or is required for some benefit or grant, no claim of prejudice can be made. No prejudice will occur if the information in issue is routine or administrative (that is, generated as a matter of practice).

The agency will usually be best placed to identify, and be concerned about the circumstances where the disclosure of documents might reasonably be expected to prejudice the future supply of information to it.

The EPBC Act

13    The FOI access requests in issue in this matter primarily concern documents created as part of the statutory consultation process under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). It is therefore necessary to provide a brief overview of the operation of relevant parts of the EPBC Act.

14    The EPBC Act provides a statutory framework for regulating activities that have or are likely to have significant impacts upon the environment: Australian Conservation Foundation Inc v Minister for Environment (2016) 251 FCR 308; [2016] FCA 1042 at [6]. The EPBC Act provides that certain actions are unlawful if they occur without approval: ss 66; 67; 67A of the EPBC Act. Those actions are outlined in Part 3 of the EPBC Act and relevantly include actions that have or are likely to have a significant impact on the ecological character of a declared Ramsar wetland (s 16(1)) or actions that have or are likely to have a significant impact on a listed threatened species (s 18).

15    The Minister may determine that an action requires approval if he or she considers that a provision contained in Part 3 (the controlling provision), prohibits the action (referred to as a controlled action): s 67 of the EPBC Act. Section 68 of the EPBC Act allows a person who proposes to take action who thinks it may be a controlled action to make a referral to the Minister. Once a referral is made, the Minister must publish the referral on the internet and invite comment from the public and relevant Ministers: s 74(2)-(3) of the EPBC Act.

16    If the Minister determines that the action is a controlled action, the Minister is then obliged under s 75 of the EPBC Act to consider whether or not approval for the action is required, and must take into account all adverse impacts the action has or will likely have on the matter protected by the controlling provision: ss 75, 82(1) of the EPBC Act; Minister for the Environment v Sharma (2022) 400 ALR 203; [2022] FCAFC 35 at [65]-[71]. The Minister may decide that the relevant impacts of the action must be assessed by way of an Environmental Impact Statement (EIS): ss 87, 101 of the EPBC Act.

17    If the Minister decides that approval is required, ss 131, 131AA and 131A of the EPBC Act outline a consultation process before the Minister makes his or her decision whether or not to approve the taking of the action. That process includes inviting comments from other Ministers, the person proposing the action and the public: Sharma at [76]. In deciding whether or not to approve the action and what conditions to attach to the approval, the Minister must take into account any assessment reports, environmental impact statements and any relevant comments given to the Minister: s 136 of the EPBC Act; Sharma at [79].

The access requests and the Department’s decisions

18    There was little or no dispute between the parties concerning the background facts, the making of the FOI requests and the decisions relating thereto.

19    In September 2014, the Queensland Government and the Redland City Council announced that Walker had been selected as the preferred developer for the Toondah Harbour Priority Development Area. Walker then negotiated and entered into commercial agreements, including a development agreement, in respect of a project called the Toondah Harbour Development Project.

20    Between November 2015 to July 2018, Walker submitted several referrals to the Commonwealth relating to the Project to determine whether it was a “controlled action” under the EPBC Act. Several meetings were held between representatives of Walker and the Minister for the Environment.

21    On 24 July 2018, the Minister determined that the Project was a “controlled action” under the EPBC Act which required further assessment by way of an EIS. That assessment process was ongoing at the time of the making of the FOI requests and the decisions relating thereto.

22    On 15 February 2019, the Department received a request under the FOI Act for documents relating to the Project and the referrals under the EPBC Act (the First FOI Request). The request was made by the ACF, although Walker did not become aware of the identity of the FOI applicant until around September 2020.

23    The Department consulted Walker about the potential disclosure of documents in respect of the First FOI Request during April 2019. On 7 May 2019, Walker objected to the disclosure of the documents on the basis that each of the documents was exempt from disclosure under s 47(1)(b) of the FOI Act, or alternatively, under s 47G(1)(a) or 47G(1)(b) of the FOI Act. The Department consulted with Walker about the potential disclosure of further documents on 21 May 2019.

24    On 24 May 2019, the Department decided to grant access to certain documents and to refuse access to other documents. The Department provided a revised notice of determination on 29 May 2019 which extended the decision to grant access to additional documents.

25    Walker applied for an internal review of the Department’s decision under Part IV of the FOI Act on 26 June 2019.

26    The Department affirmed the original decision in respect of the First FOI Request on 25 July 2019 (the First FOI Decision).

27    Walker applied to the Commissioner for a review of the First FOI Decision on 23 August 2019.

28    On 20 September 2019, the Department received a second request from the ACF under the FOI Act for briefs prepared by the Department for the Minister about the Project (the Second FOI Request).

29    Following consultation between Walker and the Department about certain documents, on 5 November 2019, Walker objected to the disclosure of the documents on the basis that each of the documents was exempt from disclosure under s 47(1)(b) of the FOI Act or alternatively was conditionally exempt from disclosure under ss 47G(1)(a) or 47G(1)(b) of the FOI Act.

30    On 13 November 2019, the Department decided to grant access to certain documents in full and other documents in part.

31    Walker applied for an internal review of that decision on 10 December 2019.

32    The Department affirmed its decision in respect of the Second FOI Request on 9 January 2020 (Second FOI decision).

33    Walker applied to the Commissioner for a review of the Second FOI decision on 7 February 2020.

34    On 15 June 2020, a delegate of the Commissioner exercised its discretion under s 54W of the FOI Act not to undertake a review of Walker’s two applications for review of the Department’s decisions.

35    On 13 July 2020, Walker filed applications in the Tribunal seeking a review of both the First FOI Decision and the Second FOI Decision. The Tribunal heard those two applications together.

Walker’s case before the Tribunal

36    It is useful to briefly outline Walker’s case before the Tribunal, though it will be necessary to refer to some of the submissions advanced by Walker in more detail later in the context of two of the questions of law raised by the appeal. In the Tribunal, Walker continued to rely on both s 47 and s 47G of the FOI Act. The Tribunal’s decision concerning the application of s 47 of the FOI Act is not the subject of any of the questions of law raised by the appeal. It is according unnecessary to consider either Walker’s arguments based on s 47 of the FOI Act, or the Tribunal’s decision in respect of those arguments.

37    Walker’s arguments in respect of conditional exemption under s 47G focussed on three documents. The first document, referred to in the Tribunal as Document 1, was a meeting brief to the Minister prepared by officers of the Department. The second and third documents, referred to as Document 1b and Document 1c, were attachments to that meeting brief. Walker argued that each of those documents was conditionally exempt pursuant to both ss 47G(1)(a) and 47G(1)(b) of the FOI Act.

Walker’s s 47G(1)(a) argument

38    Walker contended that Documents 1, 1b and 1c were conditionally exempt under s 47G(1)(a) because their disclosure would or could reasonably be expected to unreasonably to affect Walker in respect of its lawful business, commercial or financial affairs. The three documents were said to contain information relating to the potential environmental impact of the Project.

39    Walker claimed that disclosure of that information would unreasonably affect its future dealings and lawful business for three reasons: first, because disclosure would occur in an “isolated manner and without information relating to the context for the information”; second, because disclosure would occur in circumstances where the approval process under the EPBC Act “contains a mandated public disclosure regime in which complete information relating to the Project, including relevant context, is made available to the public for the purpose of public information and consultation and in respect of which detailed documentation responding to mandated terms of references is required to be prepared”; and third, because disclosure would occur in circumstances in which that statutory procedure “could be undermined by the isolated disclosure of information, including opinions, without any indication of whether or not the information has been superseded, or is accurate or complete”: Applicant’s Statement of Facts, Issues and Contentions (ASFIC) at [54].

40    Walker also contended that Document 1 contained “matters regarding the Project that are factually inaccurate, misleading or false, and that is not apparent on the face of the document” and that “disclosure of false, misleading or inaccurate statements could well have some adverse effect on Walker’s commercial affairs by wrongly suggesting that Walker’s proposed development has certain negative characteristics”: ASFIC at [49]; [55]. That adverse effect would, it was argued, be “manifestly… unreasonable given that it is predicated upon inaccurate, false or misleading information”: ASFIC at [55].

41    In support of those contentions, Walker relied on a statement from Mr Peter Saba, who was at the time, the Director of Development and Major Projects at one of Walker’s subsidiaries. Mr Saba’s statement referred to and exhibited a letter from Walker’s solicitors to the Information Commissioner dated 7 February 2020 (the Solicitors’ Letter). The Solicitors’ Letter, among other things, summarised what were said to be the false, inaccurate or otherwise misleading statements in Document 1 and the reasons they were said to be false. In his statement, Mr Saba stated that he fully agreed with what was said in the Solicitors’ Letter about the false, inaccurate and misleading statements and specifically addressed two statements in Document 1.

42    It will be necessary to refer in more detail later to what was said in the Solicitors’ Letter and Mr Saba’s statement concerning the adverse effect that disclosure of the allegedly false, inaccurate or misleading documents would have in respect of Walker’s business. That is because the first error of law advanced by Walker hinges to an extent on the proposition that the Tribunal failed to address a submission advanced by Walker, including a submission articulated in the Solicitors’ Letter and the statement by Mr Saba, concerning the effect of the disclosure of the allegedly false, inaccurate or misleading statements.

Walker’s s 47G(1)(b) argument

43    Walker also contended that Documents 1, 1b and 1c were conditionally exempt under s 47G(1)(b) as disclosure could reasonably be expected to prejudice the future supply of information to the Commonwealth or its agencies.

44    Walker contended that it had an obligation under its development agreement to obtain all necessary approvals, including under the EPBC Act, and that such approvals required it to make specified information about the proposed development “publicly available for the purpose of informing the public and enabling a mandated statutory consultation procedure”: ASFIC at [57]. That information was said to be “provided in an appropriate and relevant context and with an opportunity for Walker to correct any statements that would otherwise be false, misleading or inaccurate and otherwise to respond to matters raised in respect of the information”: ASFIC at [57]. In that context, Walker argued as follows (ASFIC at [58]-[59]):

Walker, and developers such as Walker, have a reasonable expectation that information generated as part of their engagement with Government (other than material that is required to be publicly disclosed as part of the process of obtaining any necessary approvals and for the purpose of providing information to the public and enabling consultation) will not be disclosed publicly save to the extent required or appropriate pursuant to the statutory publication and consultation procedures.

It is reasonably likely that developers such as Walker will be reluctant to engage openly with the Department (and any other relevant Commonwealth agency) to the extent that information may be disclosed pursuant to FOI Act requests, particularly in circumstances where the developer does not have an opportunity to correct any false, misleading or inaccurate statements contained in such information, or otherwise to enable the information to be provided in an accurate form and with relevant context.

45    Mr Saba advanced the same argument in his statement (at [54]):

However, beyond complying with statutory obligations under the EPBC Act, it is reasonably likely that I, and other representatives of Walker, would be reluctant openly to engage with the Department in relation to the Project or future developments, because of the risk of documents and information concerning Walker and the Project, which have been prepared by members of the Department without any opportunity by Walker to consider and make any necessary corrections, being disclosed to the public.

The Tribunal’s decision

46    The Tribunal decided to affirm the decisions under review. It published its Decision and Reasons for Decision (Reasons or R) on 1 August 2023.

47    The Tribunal found that Documents 1, 1a and 1b were not conditionally exempt under either s 47G(1)(a) or s 47G(1)(b) of the FOI Act.

Reasoning in relation to s 47G(1)(a)

48    The Tribunal rejected Walker’s contention that disclosure of the documents would, or could reasonably be expected to, unreasonably affect it in respect of its commercial affairs because they contained false, misleading or inaccurate statements. The nub or crux of the Tribunal’s reason for rejecting that contention was that, if the documents did contain false, misleading or inaccurate statements, Walker would be able to correct them, including in circumstances where the documents were read by a potential objector.

49    The Tribunal addressed Walker’s arguments largely by reference to what was said in the Solicitors’ Letter about specific allegedly false, misleading or inaccurate statements in the documents. The Tribunal reasoned as follows in respect of a particular statement identified in paragraph 6(a) of the Solicitors’ Letter (at R [29]-[34]):

Redacted paragraph 8 in the [Solicitors’ Letter] seeks to bring this, and other sub-paragraphs of paragraph 6 within s 47G(1)(a). The reference to “any person reading it” seems to have in mind potential objectors to Walker’s propose development. Mr Saba’s affidavit makes it plain that the comments from the public are required to be sent by Walker to the Minister: paragraph 48.

The comments from the public will not be considered by the Minister without examination. Suppose that the statement identified in paragraph 6(a) is adopted by an objector. Walker will inevitably repeat to the Minister the matters set out in the [Solicitors’ Letter], and of the contents of the affidavit of Ms Woodside. In those circumstances, one would not expect the disclosure of document 1 unreasonably to affect Walker adversely, because it has the means to correct the statement itself, as the evidence in this case shows.

Walker points out that since the statement comes from the Department, it carries an aura of authenticity. Thus, objectors to the application of Walker may be likely to rely upon it in their objections, so the argument suggests the case made by Walker is that the objectors may be misled, presumably unless they investigate the matter for themselves. A well-informed or experienced objector may well investigate the matter for himself or herself. Walker may choose to inform likely objectors of the facts which have been specified in the [Solicitors’ Letter] as particulars of the assertions that statements are false, inaccurate or misleading.

The minute from the Department to a former Minister may not be important to the Minister, and it seems likely that if the briefing minute is brought to the attention of the Minister by an objector or by the Department, the Minister also would have much more information brought to his or her attention as well, by objectors, by the Department and by Walker itself.

The evidence before the Tribunal shows that Walker itself is already equipped to draw attention to each of the matters particularised in the [Solicitors Letter] and which Walker relies upon to seek to falsify or challenge the statements in question. If one assumes that the particulars make statements in document 1 inaccurate or misleading, Walker is now ready to expose the statements as inaccurate or misleading, with particulars. It does not seem to me to be more likely than not that the disclosure of document 1 containing the first statement would, or could reasonably be expected to, affect Walker adversely. Therefore I am not satisfied that that the relevant part of document 1 is conditionally exempt under s 47G(1)(a) of the Act. The same reasoning affects any other part of document 1 which Walker says is inaccurate or misleading.

The [EPBC Act] has a provision in s 131AA for the designated proponent (here, Walker) to make comments on a proposed decision of the Minister before the decision is made and if a departmental recommendation is made based upon any statement which appears in document 1 or to the same effect, Walker will have a statutory right to make comment on the recommendation

50    As can be seen, the Tribunal approached the issue essentially on the basis that while the documents in question would be disclosed to the public generally, Walker’s primary concern was that the documents would or might be used or misused by potential objectors. It reasoned that, if the documents were used by potential objectors to make “comments” in the context of the processes under the EPBC Act, Walker could correct any false, misleading or inaccurate statements in the documents, either by communicating with the objectors directly, or with the Minister if the objector makes any comment to the Minister based on any such false, misleading or inaccurate statements. It followed, so the Tribunal reasoned, that disclosure would not, or could not reasonably be expected to, affect Walker adversely.

51    The Tribunal’s reasoning in respect of other statements identified in the Solicitors’ Letter was similar. In relation to the statement identified in paragraph 6(b) of the Solicitors’ Letter, for example, the Tribunal reasoned that, even if that statement were inaccurate, Walker could in any event “rely on the particulars mentioned in the [Solicitors’ Letter] by way of comment to the Minister, and adverse effect from any inaccuracy neither would nor could reasonably be expected”: R [35]. Similarly, in relation to the statement identified in paragraph 6(c) of the Solicitors’ Letter, the Tribunal said that Walker could “itself assert what it says are the accurate facts” (R [36]) and in respect of the statement identified in paragraph 6(d), Walker “may, if it wishes, draw the Minister’s and the Department’s attention to the true facts”: R [37].

52    The Tribunal also addressed Walker’s broader contention (in ASFIC [54]) that it would be adversely affected by disclosure in an “isolated manner” and in circumstances where the environmental approval process contained a public disclosure and consultation regime which could be undermined by “isolated disclosure”. The Tribunal rejected that contention. It reasoned that Walker’s contentions in that regard proceeded on the erroneous premise that if documents are disclosed under the FOI Act, they necessarily become part of the environmental approval process, or that the disclosure occurs as part of that process. The Tribunal reasoned that the FOI Act was not, in its opinion, to be construed in that way, and that “[n]o warranty is given that a document released [under the FOI Act] will be other than what it purports to be”: R [46]. While it would perhaps be fair to say that the Tribunal’s reasoning in relation to this part of Walker’s case was not entirely pellucid, Walker’s questions of law and appeal grounds do not challenge this aspect of the decision.

Reasoning in relation to s 47G(1)(b)

53    The Tribunal rejected Walker’s contention that disclosure of information in the documents could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for a number of reasons. The key elements of the Tribunal’s reasons for so finding may be summarised as follows.

54    First, the Tribunal referenced paragraph [6.201] of the FOI Guidelines, referred to earlier, and noted that the agency, here the Department, would usually be best placed to identify and be concerned about the circumstances where disclosure might reasonably be expected to prejudice the future flow of information to it. In this case, the Department had no such concerns: R [51]. This, however, was not a significant, let alone decisive, element of the Tribunal’s reasoning.

55    Second, the Tribunal similarly referenced paragraph [6.200] of the FOI Guidelines and noted that, to the extent that any information in the documents in question was compulsorily acquired by the Department, “the exemption cannot be claimed”: R [52]. This was also not a significant, element of the Tribunal’s reasoning.

56    Third, and perhaps more significantly, the Tribunal noted that, in seeking approval under the EPBC, Walker was seeking a valuable benefit and reasoned as follows (at R [53]):

A potential benefit from the Commonwealth, namely approval under the EPBC Act, is being sought by Walker. That benefit is no doubt very valuable to Walker. In its own case, it is hardly likely that it would refuse in the future to supply information in the course of seeking the benefit, out of fear that the information would be included in fulfilment of the respondent’s duty under the FOI Act. Similarly, it is hardly likely that competitors of Walker as proposed developers under the EPBC Act would refuse to supply information necessary for them to supply in pursuit of obtaining a similar benefit.

57    It may be noted in this context that paragraph [6.200] of the FOI Guidelines states that “[w]here the business information … is required for some benefit or grant, no claim of prejudice can be made”.

58    Fourth, the Tribunal supplied an answer to a rhetorical question posed in the Solicitors’ Letter (at [9]). That question was: “why would any person, firm or company dealing with the Australian Government be prepared to provide any information to it about his, her, their or its business, commercial or financial affairs when there is not only a risk that it might find its way into the public domain, but a risk that it may be falsely reported, or misrepresented, by the Government in its own internal documents which may themselves find their way into the public domain”. The Tribunal suggested that “[o]ne answer that might be made to the rhetorical question there posed is that the person in question would be able to rebut the statements in document 1 or any similar document” and that “[a] ny statement made to government in the course of seeking a benefit has the risk of being released under FOI legislation”: R [54].

59    Fifth, the Tribunal concluded that there was no evidence to support Walker’s contention (at [58] of the ASFIC) that Walker, or developers such as Walker, had a “reasonable expectation that information generated as part of their engagement with Government (other than material that is required to be publicly disclosed as part of the process of obtaining any necessary approvals and for the purpose of providing information to the public and enabling consultation) will not be disclosed publicly save to the extent required or appropriate pursuant to the statutory publication and consultation procedures”: R [56].

60    Sixth, the Tribunal similarly concluded that there was no evidence to support Walker’s contention (at [59] of the ASFIC) that it “is reasonably likely that developers such as Walker will be reluctant to engage openly with the Department (and any other relevant Commonwealth agency) to the extent that information may be disclosed pursuant to FOI Act requests, particularly in circumstances where the developer does not have an opportunity to correct any false, misleading or inaccurate statements contained in such information, or otherwise to enable the information to be provided in an accurate form and with relevant context”: R [56].

61    Seventh, and related to the previous two points, the Tribunal doubted that Walker had the expectation referred to in [58] of the ASFIC, or was likely to have the reluctance referred to in [59] of the ASFIC, effectively because that would mean that Walker was operating under “a misconception about the provisions of the FOI Act”, which the Tribunal considered would be “very surprising”: R [56].

The questions of law and associated appeal grounds

62    As noted earlier in these reasons, Walker’s appeal was based on four questions of law. Each question was supported by several grounds of appeal. The Department did not contend that Walker’s grounds of appeal and arguments did not properly raise or involve questions of law.

Question 1

63    Question 1 is whether the Tribunal made an error of law in failing to deal with Walker’s submissions regarding the unreasonable adverse effect of disclosing false information about Walker’s lawful business affairs, for the purpose of s 47G(1)(a) of the FOI Act.

64    The grounds of appeal associated with this question are grounds 1 to 6:

1.    The Applicant relevantly submitted to the Tribunal that the disclosure of a Ministerial briefing (Document 1) containing false information about the Applicant and the proposed development would, or could reasonably be expected to, unreasonably affect the Applicant in respect of its lawful business affairs.

2.    The nature of such adverse effect as submitted by the Applicant related to the disclosure of such false information to the public generally, and was not confined to the adverse effect that might be associated with such false information being disclosed only to potential objectors who might use the information in making a formal objection to future development applications.

3.    The Tribunal accepted that Document 1 contained false information as alleged by Applicant (or, in the alternative, proceeded on the assumption that it did): J[25]

4.    The Tribunal purported to consider the Applicant’s argument under s 47G(1)(a) as to the adverse effect of disclosing Document 1, having regard to that false information.

5.    In doing so the Tribunal erroneously confined its analysis to an assessment of the adverse effect that could be expected from the false information coming into the hands of “potential objectors” to the Applicant’s proposed development (J[29]-[33]).

6.    In adopting this approach the Tribunal failed to engage with, and resolve, the substance of the submission advanced by the Applicant, which was not confined to the position of “potential objectors”.

Question 2

65    Question 2 is whether the Tribunal made an error of law by determining that for the purpose of s 47G(1)(a) of the FOI Act, a person’s lawful business affairs cannot be adversely affected, or adversely affected in an unreasonable way, if the person has a means of correcting that misleading information.

66    The ground of appeal associated with question 2 (ground 7) is:

7.    The Tribunal also erred by determining that for the purpose of s 47G(1)(a) of the FOI Act, a person’s lawful business or professional affairs cannot be adversely affected by misleading information, if the person has a means of correcting that misleading information in the future (J[30]-[33]).

Question 3

67    Question 3 is whether the Tribunal made an error of law in failing to deal with Walker’s submissions regarding the adverse impact on future voluntary disclosure of information for the purpose of s 47G(1 )(b) of the FOI Act.

68    The grounds of appeal associated with this question are (grounds 8 to 10):

8.    In relation to s 47G(1)(b), the Applicant relevantly submitted to the Tribunal that disclosure of Document 1 could reasonably be expected to prejudice the future supply of information to the Commonwealth for the purpose of administering the [EPBC Act] approval process because the prospect of such disclosure could reasonably be expected to lead the Applicant and other proponents to confine their voluntary disclosure of information to the Commonwealth.

9.    The Tribunal purported to consider this argument under s 47G(1 )(b), but in doing so confined its reasoning to the likely impact on the provision of information that is required to be disclosed for the purposes of the approval process.

10.    In adopting this approach the Tribunal failed to engage with, and resolve, the substance of the submission advanced by the Applicant, which expressly distinguished between information that is required to be disclosed for the purposes of an approval process and information that is otherwise volunteered by proponents.

Question 4

69    Question 4 is whether the Tribunal made an error of law by failing to undertake the assessment required by s 47G(1)(b) of the FOI Act.

70    The grounds of appeal associated with this question are (grounds 11 and 12):

11.    The Tribunal also erred in its application of s 47G(1)(b) of the FOI Act, by determining that the Applicant ought to have known of the operation of the FOI Act and thereby any disclosure pursuant to the FOI Act must have been reasonably expected by the Applicant (J[56]).

12.    In adopting this reasoning the Tribunal overlooked that the operation of the exemption in s 47G(1)(b) is itself an aspect of the operation of the FOI Act and failed to make the assessment required by s 47G(1)(b) of the FOI Act as to whether disclosure could reasonably be expected to prejudice the future supply of information to the Commonwealth.

Question 1: did the Tribunal fail to deal with a submission made by Walker regarding the unreasonable adverse effect of disclosure?

71    It is necessary to first consider the principles that must be applied when an applicant contends that an administrative decision-maker like the Tribunal ignored, overlooked or failed to respond to or engage with their representations, contentions or submissions.

Applicable principles

72    There was no dispute about the applicable principles in respect of this question.

73    A “failure to respond to a substantial, clearly articulated argument relying upon established facts” may be both a constructive failure to exercise jurisdiction and a failure to accord procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ); Secretary, Department of Education v Dawking [2024] NSWCA 4 at [90] (Gleeson JA, Mitchelmore and Kirk JJA agreeing).

74    The “requisite level of engagement” by an administrative decision-maker with a representation will “necessarily depend on the nature, form and content” of the representation or contention and “will vary, among other things, according to the length, clarity and degree of relevance of the argument”: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ). The decision-maker is not required to consider representations that “are not clearly articulated or which do not clearly arise on the materials before them”: Plaintiff M1/2021 at [25]. Nor is the decision-maker required to refer in its written reasons to every contention made by a party. It is, for example, not necessary for the decision-maker to refer to contentions or submissions that are irrelevant, misconceived or immaterial to the outcome: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]-[47] (French, Sackville and Hely JJ); Saffari v Australian Information Commissioner [2023] FCAFC 127 at [24] (Sarah C Derrington, Stewart and Abraham JJ).

75    It is important to distinguish between the case where a decision-maker ignores or overlooks an argument or contention, and the case where a decision-maker rejects, or gives little weight to, or is said to have misunderstood or failed to fully grapple with an argument or contention. The latter type of case tends towards merits review and is unlikely to constitute a constructive failure to exercise jurisdiction: Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [15] (Kirk JA, White and Mitchelmore JJA agreeing) see also National Disability Insurance Agency v KKTB [2022] FCAFC 181; (2022) 295 FCR 379 at [163(6)] (Thawley J); Klewer v National Disability Insurance Agency [2023] FCA 630 at [147] (Raper J). The “failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved”: Ming at [15]; Dawking at [92].

76    In considering whether the Tribunal has ignored, overlooked, or failed to engage with or respond to an argument or contention and therefore constructively failed to exercise its jurisdiction, the Court must be mindful of the following observations made by the Full Court in WAEE at [46]:

The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

Did Walker clearly articulate an argument about disclosure to the public generally?

77    Walker’s contention that the Tribunal failed to deal with its submissions regarding the unreasonable adverse effect of disclosing false information about its lawful business affairs, for the purpose of s 47G(1)(a) of the FOI Act, hinged to a large extent on the proposition that it clearly articulated a submission to the effect that it would be unreasonably adversely affected by the disclosure of the documents to the public generally, not just potential objectors. The first question, then, is whether that proposition has any merit.

78    Walker submitted that its case in the Tribunal was not confined to the adverse effect of potential objectors campaigning against the Project. Rather, it extended to include the “reputational implications” and the “political implications for [it] in terms of its standing in the community”. In Walker’s submission, by confining its consideration of Walker’s argument to an analysis of the effect that disclosure of the documents to potential objectors, the Tribunal failed to engage with, and resolve, the substance of that argument or submission.

79    The general nature of the case advanced by Walker in the Tribunal in respect of s 47G(1)(a) was outlined earlier. In order to determine whether Walker’s argument in respect of adverse effects clearly extended to the public generally, it is necessary to consider in more detail the argument that Walker advanced in the Tribunal.

80    The starting point is the ASFIC. Unfortunately, Walker’s contentions concerning its case in respect of s 47G(1)(a) were expressed in very broad, general terms in the ASFIC. The relevant contention was, in substance, that disclosure of documents containing allegedly false, misleading or inaccurate statements “could well have some adverse effect on Walker’s commercial affairs by wrongly suggesting that Walker’s proposed development has certain negative characteristics”.

81    The Solicitors’ Letter also expressed Walker’s concerns about the disclosure of documents in very broad terms. It said (at [8]):

As to s 47G(1)(a), such a document, being a meeting brief from a senior officer of the Department to the Minister for the Environment herself, carries with it such an aura of authority that any person reading it would feel compelled to accept the statements made in it as true and accurate. However, to the extent that they are incorrect or misleading, or demonstrate bias, their inevitable acceptance by persons to whom access to the document is given as true and accurate, would be certain to unreasonably affect Walker in its lawful business.

82    The general contentions in the ASFIC and the Solicitors’ letter, however, must be considered together with, or in the context of, Mr Saba’s evidence concerning the likely impact of disclosure of the documents. Mr Saba’s evidence on that topic was as follows (at [46] to [51] of his statement):

Walker has carried out a significant amount of work and incurred substantial expenses in order to prepare the draft EIS over the past two years. It is a lengthy and substantial document based on comprehensive and robust scientific assessment.

As discussed in paragraphs 31-32 above, the draft EIS will shortly be published for public comment, and I expect that there will be a substantial number of submissions lodged in response.

In accordance with the EPBC Act, Walker will be required to provide comments received from the public to the Minister, together with the finalised EIS taking into account those comments.

That procedure, mandated by the EPBC Act, provides a mechanism for disclosure to the public of documents relating to the Project, and for public consultation in relation to the question of approval of the Project under the EPBC Act.

I believe that, if the access documents are disclosed, the information will most likely will be revealed through media reports and utilised by action groups, for example, Birdlife Australia, Redlands 2030 and Australian Conservation Foundation, to campaign against the approval of the Project. There will then be a competing and potentially inconsistent disclosure of information to the public in relation to the Project, in circumstances in which the information disclosed:

(a)    is false, inaccurate and misleading, but that is not apparent from the face of the documents; and

(b)    may be inconsistent with the documents which the EPBC Act requires be disclosed to the public for the purpose of public consultation, including the soon to be released draft EIS, and which set out accurate information about the Project.

In this way, public participation in decision-making on the project under the EPBC Act will be undermined rather than enhanced, in particular having regard to the false, inaccurate and misleading material in the documents (which I have discussed at [40] ff. above).

83    It is tolerably clear that Mr Saba’s main concern in respect of disclosure was that “action groups”, including the ACF, could or would use the allegedly false, misleading or inaccurate information in the documents to campaign against the Project. Those action groups could, broadly speaking, be seen as falling under the general rubric of “potential objectors”. Mr Saba therefore could effectively be said to have largely tethered Walker’s case concerning the impact of disclosure to the actions of potential objectors and the adverse effects that those actions would have in respect of its business or commercial affairs related to the Project. It is also noteworthy that Mr Saba said nothing, or next to nothing, about any broader reputational or political implications for Walker that might arise from disclosure. It is, in those circumstances, not difficult to see why the Tribunal construed the reference to “any person reading it” in the Solicitors’ Letter (at [8]) as having in mind potential objectors to Walker’s proposed development: R [29].

84    Walker relied on two passages from the oral submissions made by Walker at the Tribunal hearing.

85    First, in the course of elaborating Walker’s case in respect of s 11B(4)(b) of the FOI Act, which provides that the fact that “access to the document could result in any person misinterpreting or misunderstanding the document” is irrelevant in deciding whether access to the document would be contrary to the public interest, Walker’s counsel said:

… there are misleading statements and there are statements are simply incorrect. And we say those are important matters to have regard to, both in relation to the damage or harm that could be caused by disclosure of the documents. But also in the public interest test, because we say, it’s manifestly not in the public interest for misleading or incorrect statements about the project, or about aspects of the process to be in the public domain and we say that those matters are clearly relevant.

… And if it is apparent, as we say it is, that these statements are, in fact, going to provide misinformation to the public, or mislead the public, that must be something that can be relevant as to the harm that would flow for the purposes of section 47G, or also to the public interest test.

86    While that brief submission does seem to indicate, albeit in a quite fleeting and general way, that Walker’s case in respect of s 47G(1)(a) included that it would suffer damage as a result of the public being misled by the information in the documents, it could scarcely be said to be a substantial clearly articulated argument. That is particularly so given the fact that the submission was advanced in respect of s 11B(4)(b) of the FOI Act, not s 47G(1). There is also no mention whatsoever of the claim that Walker might suffer any reputational or political implications or damage arising from disclosure, which is the way the argument was put in this appeal.

87    Second, in the course of taking the Tribunal through Mr Saba’s statement, counsel for Walker said:

Then paragraph 46 – and this sets out the likely impact of the disclosure and identifies, first, the amount of work and expense, and then it sets out in paragraph 50 that if the access documents are disclosed, the information will most likely be revealed through media reports utilised by action groups to campaign against the approval of the project and that there will be competing or potentially inconsistent disclosure of information to the public in relation to the project in circumstances in which the information disclosed.

88    That submission did not take the matter any further. It effectively simply paraphrased certain paragraphs in of Mr Saba’s statement. As indicated earlier, those paragraphs suggested that Walker’s case concerning adverse effects was primarily directed at the use that action groups might make of the documents in the approval processes under the EPBC Act.

89    In all the circumstances, Walker’s contention, in support of question 1 and the associated grounds of appeal, that its submissions before the Tribunal included a substantial and clearly articulated argument to the effect that it would be unreasonably adversely affected by the disclosure of the documents to the public generally, not just potential objectors, cannot be accepted. It is unsurprising that the Tribunal construed or characterised Walker’s argument as being primarily directed to the adverse effect that disclosure of the documents would have if potential objectors used the information in them to campaign against the Project.

No constructive failure to exercise jurisdiction or denial of procedural fairness

90    It cannot, in all the circumstances, be accepted or concluded that the Tribunal constructively failed to exercise its jurisdiction, or denied Walker procedural fairness, or otherwise erred in law, because it failed to deal with, or ignored, overlooked, or failed to engage with, its submissions concerning the unreasonable adverse effect of disclosing allegedly false information concerning its lawful business affairs. It is true that the Tribunal largely dealt with Walker’s contentions concerning s 47G(1)(a) of the FOI Act on the basis that Walker’s primary concern was that potential objectors who obtained access to the documents might use them to make comments to the Minister in the context of the processes under the EPBC Act. That was, however, largely a product of the way Walker had articulated its contentions before the Tribunal.

91    Contrary to the submissions it advanced in support of its appeal, Walker did not, before the Tribunal, clearly articulate any contention to the effect that it was concerned about disclosure to the public generally because of the risk or possibility of either reputational or political damage or implications from such disclosure. While Walker’s submissions before the Tribunal may not have expressly referred to “potential objectors”, Mr Saba’s evidence was primarily directed to the problems that might emerge in the context of the procedures under the EPBC Act if “action groups” used the information to campaign against the Project. It is not surprising, in the circumstances, that the Tribunal interpreted Walker’s case as being directed at the harm it might suffer if potential objectors used the information in the documents to make comments to it or the Minister in the context of the procedures under the EPBC Act.

92    It follows that it cannot be accepted that the Tribunal failed to deal with, or ignored, overlooked or failed to engage with, Walker’s contentions and submissions concerning s 47G(1)(a) of the FOI Act. Rather, the Tribunal addressed what it understood to be the substance and effect of those contentions and submissions. The worst that could be said is that the Tribunal somehow misunderstood, or misconstrued, Walker’s contentions and submissions. For the reasons already given, that is at best doubtful, though even if it did, that would not, in the particular circumstances of the case, constitute a constructive failure to exercise jurisdiction, or a denial of procedural fairness, or an error of law which would be open to challenge in this proceeding. Rather, it would, at most, amount to a complaint about the merits of the Tribunal’s decision.

93    It should also perhaps be noted in this context that it is also at best doubtful that the error that Walker contends that the Tribunal made in characterising its contentions and submissions, if made out, was material, in the sense that a different result was possible if the error had not been made. The Tribunal reasoned that Walker had the ability and means by which to correct or neutralise any misuse of the information which was said to be inaccurate or misleading. That reasoning applies as much to any misuse of the information by the public generally as it does to the misuse of the information by potential objectors. It would also apply to any potential reputational damage or political implications which might flow from the disclosure of the information to the public generally, though as already noted, Walker’s contentions and submissions before the Tribunal made no explicit reference to reputational damage or political implications flowing from disclosure to the public generally. Nor was there any evidence before the Tribunal to support such claims.

94    Walker’s first question of law is accordingly answered adversely to it. The Tribunal did not err in law in failing to deal with its submissions regarding the unreasonable adverse effect of disclosing false information about its unlawful business affairs, for the purpose of s 47G(1)(a) of the FOI Act. There was no constructive failure to exercise jurisdiction, or denial of procedural fairness, on the part of the Tribunal. Walker has failed to make out appeal grounds 1 to 6.

Question 2: did the Tribunal misapply the test in s 47G(1)(a) in considering whether there were adverse effects?

95    Walker submitted that the Tribunal erred in law by determining that, for the purpose of s 47G(1)(a) of the FOI Act, a person’s business or professional affairs cannot be adversely affected by misleading information if the person has a means of correcting that misleading information in the future. Walker characterised the Tribunal’s error as a failure to apply the correct statutory test. It characterised the Tribunal’s reasoning as identifying an adverse effect and then positing that the adverse effect can be “mitigated by some further independent step”. Walker submitted that it was not open to the Tribunal to have regard to “some subsequent step that may (or may not) be taken by [Walker] after disclosure is made”.

96    There are at least two difficulties with Walker’s contention that the Tribunal erred by failing to apply the correct statutory test under s 47G(1)(a) of the FOI Act.

97    The first difficulty is that it is based on a mischaracterisation, or at least an unfair or inaccurate characterisation, of the Tribunal’s reasons. The Tribunal did not find that a person’s business or professional affairs cannot be adversely affected by misleading information if the person has a means of correcting that misleading information in the future. It simply found that, in the particular circumstances of this case, Walker’s business affairs would not, or could not reasonably be expected to be adversely affected by the disclosure of documents because of Walker’s capacity and ability to correct any misleading information in the documents. That is not to say that that is always the case. The Tribunal also did not, as Walker submitted, first identify an adverse effect of the disclosure of the information and then identify an independent or subsequent step that might be taken by Walker to mitigate that adverse effect. Rather, the Tribunal simply found, in effect, that the disclosure of the information would not and could not reasonably be expected to unreasonably affect Walker adversely in the first place.

98    In that regard, the Tribunal reasoned, in effect, that: it was doubtful that some of the statements in the documents were inaccurate or misleading (R [35] and [38]); some statements were unlikely to affect Walker in any event (R [37], [39], [40]); some potential objectors might investigate the accuracy of statements in the documents for themselves (R [31]); if members of the public, including potential objectors, made comments based on statements in the documents, the Minister was unlikely to consider those comments without “examination”, including considering other information and comments from Walker (R [30], [32], [34]); and Walker was itself well equipped to correct any allegedly misleading information in the documents (R [30], [32], [33], [35] – [40]).

99    The second difficulty is that there is no sound basis for the contention that, in applying the statutory test in s 47G(1)(a) – whether disclosure “would, or could reasonably be expected to, unreasonably affect [a person] adversely” – a decision maker is somehow precluded from considering what might reasonably be expected to occur following the disclosure. It may, of course, be accepted that the decision-maker must have regard to the circumstances that exist at the time of disclosure. That said, the test in terms looks to the future – what might reasonably be expected to occur as a consequence of the disclosure. It is, in those circumstances, open to a decision-maker to conclude that disclosure of, for example, misleading information, could not reasonably be expected to unreasonably affect a person because that person would readily be able to correct the misleading information before it had any adverse effect. That sort of reasoning does not involve the decision-maker having regard to circumstances other than those that exist at the time of disclosure. Nor does it involve the two-stage reasoning process that Walker erroneously contended the Tribunal engaged in.

100    It follows that Walker’s second question of law is accordingly answered adversely to it. The Tribunal did not make an error of law by determining that for the purpose of s 47G(1)(a) of the FOI Act, a person cannot be affected, or adversely affected in an unreasonable way, if the person has the means of correcting that misleading information. It was open to the Tribunal to conclude, on the material before it, that disclosure of the documents in issue would not, or could not reasonably be expected to, unreasonably affect Walker adversely because, among other things, Walker was readily able to correct any allegedly misleading information in the documents. That reasoning did not involve any misconstruction or misapplication of the statutory test in s 47G(1)(a) of the FOI Act

Question 3: did the Tribunal fail to deal with a submission made by Walker concerning prejudice to the future supply of information to the Commonwealth?

101    Walker’s third question of law is whether the Tribunal failed to deal with a submission it made in support of the proposition that disclosure of the documents in question would have an adverse impact on future voluntary disclosure of information for the purposes of s 47G(1)(b) of the FOI Act. The submission that the Tribunal failed to deal with was, according to Walker, that “disclosure could reasonably be expected to prejudice the future supply of information to the Commonwealth for the purposes of administering the [EPBC Act] approval process because the prospect of disclosure could reasonably be expected to lead [Walker] and other proponents to confine their voluntary disclosure of information to the Commonwealth”: appeal ground 8.

102    Walker contended that the Tribunal “confined its reasoning to the likely impact on the provision of information that is required to be disclosed for the purposes of the approval process” and thereby failed to engage with or resolve the substance of its submission, which was said to “expressly distinguish between information that is required to be disclosed for the purposes of an approval process and information that is otherwise volunteered by proponents”: appeal grounds 9 and 10.

103    There are at least two difficulties with Walker’s contention that the Tribunal failed to deal or engage with its submission concerning the adverse impact of disclosure of the documents in issue on the future voluntary disclosure of information, as distinct from information that is required to be disclosed for the purposes of the approval process. The first difficulty is that it is questionable that Walker clearly articulated an argument which distinguished between the voluntary and compulsory disclosure of information. The second difficulty is that the Tribunal in any event engaged with and rejected the substance of Walker’s submissions concerning s 47G(1)(b) of the FOI Act.

104    As for whether Walker clearly articulated a submission concerning voluntary disclosure of information, the starting point is paragraphs 58 and 59 of the AFSIC. Those paragraphs of the AFSIC, which are extracted in full earlier in these reasons, articulated Walker’s case in the Tribunal concerning s 47G(1)(b) of the FOI Act. They do not clearly articulate any distinct argument or contention based on the future voluntary disclosure of information by Walker or other “proponents”. Rather, they suggest that Walker’s case was that it and other “developers” had a reasonable expectation that any information “generated” as part of their engagement with the Government would not be disclosed “save to the extent required or appropriate” pursuant to the EPBC Act. The suggestion appeared to be that Walker and other developer would be “reluctant to engage openly” with the Government if the information might be disclosed under the FOI Act. It was by no means made clear or explicit that any reluctance to “engage openly” would distinctly relate to voluntary disclosure.

105    Walker’s argument or contention concerning s 47G(1)(b) of the FOI Act as articulated in the Solicitors’ Letter also did not explicitly distinguish between the voluntary, as opposed to compulsory, disclosure of information in the future. As adverted to earlier, paragraph [9] of the letter, which summarised Walker’s argument based on s 47G(1)(b) of the FOI Act, simply stated:

As to s 47G(1)(b), Walker suggests that it might be asked, rhetorically, why would any person, firm, or company dealing with the Australian Government be prepared to provide any information to it about his, her, their or its business, commercial or financial affairs when there is not only a risk that it may find its way into the public domain, but a risk that it may be falsely reported, or misrepresented, by the Government in its own internal documents which may themselves find their way into the public domain.

106    Mr Saba’s statement perhaps came the closest to articulating an argument concerning the future voluntary disclosure of documents. In paragraph 54 of his statement, which is extracted in full earlier in these reasons, Mr Saba asserted that he and other representatives of Walker would be reluctant to openly engage with the Department “beyond complying with statutory obligations under the EPBC Act” if there was a risk that documents and information prepared by the Department concerning Walker and the Project might be disclosed without Walker having the “opportunity to consider and make necessary corrections.” That tended to suggest that the reluctance to engage openly related to non-compulsory disclosures, though the suggestion appeared to be that the reluctance would only arise if Walker was not given the opportunity to make corrections before disclosure. Mr Saba’s assertion to that effect hardly amounted to a clear articulation of a distinct argument concerning the adverse effect on the future voluntary disclosure of documents generally.

107    In any event, the Tribunal clearly engaged and dealt with the substance of Walker’s arguments concerning s 47G(1)(b) of the FOI Act as articulated in the ASFIC, the Solicitors’ Letter and Mr Saba’s statement. The Tribunal rejected Walker’s contention that the disclosure of the documents in question “could reasonably be expected to prejudice the future supply of information” by Walker and other developers or proponents for essentially two reasons.

108    First, the Tribunal rejected Walker’s contention that it might be reluctant to engage openly with and provide information and documents to the Government in the context of the procedures under the EPBC Act because approval under the EPBC Act was a “benefit” and “it is hardly likely that it would refuse in the future to supply information in the course of seeking the benefit, out of fear that the information would be included in fulfilment of [the department’s] duty under the FOI Act”: R [53]. The same reasoning applied to Walker’s “competitors”. The Tribunal’s rejection of Walker’s contention that it might be reluctant to provide information or documents in the future was not limited to the compulsory provision of information or documents. It encompassed the voluntary provision of information or documents.

109    Second, the Tribunal rejected Walker’s contention concerning its reluctance to provide information in the future because it was readily apparent that “[a]ny statement made to government in the course of seeking a benefit” - which would include an approval under the EPBC Act - “has the risk of being released under FOI legislation”: R [54]. It followed, according to the Tribunal, that there would only be a prejudice to the future supply of information if Walker and other developers or proponents had been acting under a misconception concerning the operation of the FOI Act. The Tribunal was unwilling to accept that Walker had been acting any such misconception, as it was unsupported by any evidence, and found in any event that it could not “reasonably to be expected” that Walker would operate under any such misconception: R [56], [57]. The Tribunal’s reasoning in that regard encompassed or engaged with Walker’s contentions, such as they were, about future disclosures, including voluntary disclosures.

110    It follows that Walker’s contention that the Tribunal failed to deal or engage with any aspect or element of its contentions or submissions concerning s 47G(1)(b) of the FOI Act has no merit and must be rejected. While Walker may disagree with the Tribunal’s reasoning, that is a separate issue and is essentially beside the point in the context of this question of law. Walker’s third question of law is accordingly determined adversely to it and appeal grounds 8, 9 and 10 are rejected.

Question 4: did the Tribunal fail to undertake the assessment required by s 47G(1)(b)?

111    The nub of Walker’s argument in respect of this question of law is that the Tribunal failed to undertake the assessment required by s 47G(1)(b) of the FOI Act because its reasoning involved the circular proposition that “a developer like Walker should expect the FOI Act to apply, with the consequence that, if disclosure occurs under the FOI Act, that is part of what must reasonably be expected to occur.” As Walker pointed out, however, if a developer like Walker is taken to be aware of the FOI Act, it would also be aware of the conditional exemption in s 47G(1)(b) and would therefore have a reasonable expectation that the information would not be disclosed if disclosure could prejudice the future supply of information to the Commonwealth.

112    It might perhaps be accepted that aspects of the Tribunal’s reasoning concerning Walker’s conception of the FOI Act might not be entirely coherent or convincing. The Tribunal’s reasoning also appears to involve an element of circularity. It does not, however, follow that the Tribunal failed to undertake the assessment required by s 47G(1)(b) of the FOI Act. Read fairly and without an “eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; WAEE at [46]) it is tolerably clear that the Tribunal addressed the statutory test and was unpersuaded that it had been met by Walker.

113    As explained in the context of the previous question of law, the Tribunal was not satisfied that the test was satisfied for two reasons, though both ultimately involved a rejection of Walker’s assertion that, if the documents in question were disclosed, it would in the future be reluctant to supply information or documents to the Government in the context of procedures under the EPBC Act. The Tribunal considered that it was unlikely that Walker and other developers would be reluctant to provide information and documents in that context both because they were seeking a benefit, and because it did not accept, in the absence of any satisfactory evidence, that Walker had not in any event been proceeding on the basis that there was at least some risk that information or documents it provided in the context of procedures under the EPBC Act might be subject to disclosure under the FOI Act.

114    In so reasoning, it is tolerably clear that the Tribunal was addressing and making findings in respect of the statutory test – whether disclosure could reasonably be expected to prejudice the future supply of information to the Commonwealth. It found that it was not satisfied that it could reasonably be expected that disclosure would have that result. While Walker might disagree and quibble with the Tribunal’s findings, that involves a challenge to the merits of the decision, not the error of law as articulated in the fourth question of law.

115    It follows that the fourth question of law must also be answered adversely to Walker. The Tribunal did not err in law by failing to undertake the assessment required by s 47G(1)(b) of the FOI Act. Appeal grounds 11 and 12 are rejected.

continuation of Non-publication orders

116    The final issue that must be addressed concerns the continuation of a non-publication order made by the Court on 3 April 2024 in respect of some parts of some documents which were reproduced in the Appeal Book. The basis upon which the non-publication order was made was that the relevant parts of the documents tended to disclosure the contents of some of the documents which Walker maintained were conditionally exempt from disclosure under s 47G(1) of the FOI Act. Disclosure of the documents prior to the determination of the appeal would, in those circumstances, tend to render the proceedings moot.

117    For the reasons that have been given, the appeal will be dismissed. It follows that the non-publication order is no longer necessary. It would in those circumstances be appropriate to order that the non-publication order be vacated, though that order should only come into effect 28 days after the date of judgment so as to afford Walker the opportunity to file a notice of appeal, should it wish to do so, and apply for a continuation of the non-publication order pending the determination of that appeal.

Conclusion and disposition

118    Walker failed to demonstrate that any of the four questions of law raised by the appeal should be answered in its favour. It failed to make out any of the grounds of appeal relating to those questions of law. Walker’s appeal must accordingly be dismissed. Walker did not identify any reasons why, if the appeal was determined adversely to it, costs should not follow the event. Nor are there any readily apparent reasons why costs should not follow the event. Walker should accordingly pay the Department’s costs of the appeal.

Associate:

Dated:    16 May 2024