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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Administrative Law - Judicial Review - Documents in possession of National Companies and Securities Commission - Whether exempt under s.38 - Consideration of secrecy provisions in statutes - Whether s.47 of National Companies and Securities Commission Act is an enactment of the kind referred to in s.38 - Whether a corporation can have "personal affairs" within the meaning of s.12.Freedom of Information Act 1982 ss. 12 and 38.
National Companies and Securities Commission Act s.47.
Administrative Law - Freedom of Information - Right of access to government documents - Enactment prohibiting disclosure of certain information - Whether document thereby exempt from access - Freedom of Information Act 1982 (Cth), s. 38 - National Companies and Securities Commission Act 1979 (Cth), s. 47 (1).
Statutes - Interpretation - Words and phrases - Whether expression "personal affairs" in statute refers to affairs of corporation as well as natural persons - Freedom of Information Act 1982 (Cth), s. 12 (2). The appellants sought access, under the Freedom of Information Act 1982 (Cth) ("the F. of I. Act"), to certain documents held by the respondent. The documents had been received or compiled by the respondent in the course of carrying out its statutory duties of investigation under the National Companies and Securities Commission Act 1976 (Cth) ("the N.C.S.C. Act"). The defendant refused access, claiming the documents fell within s. 38 of the F. of I. Act and were therefore exempt from disclosure.
Section 38 provided:
"38. A document is an exempt document if there is in force anfalling within s. 38 of the F. of I. Act. Broadly, s. 47 of the N.C.S.C. Act (the full terms of which are set out in the judgments prohibited a servant or agent of the defendant from disclosing, except in the performance of his official duties, information acquired by him in the course of his employment. The respondent was successful in the Administrative Appeals Tribunal which held that the documents were exempt, and from that decision the appellant appealed to the Federal Court.
enactment applying specifically to information of a kind
contained in the document and prohibiting persons referred to in
the enactment from disclosing information of that kind, whether
the prohibition is absolute or is subject to exceptions or
qualifications."
The respondent claimed that s. 47 (1) of the N.C.S.C. Act was an enactment
By s. 12 (2) of the F. of I. Act, a person was not entitled to access to any document received or compiled by a government agency before the commencement of relevant provisions of the Act unless, inter alia, the document contained "information relating to the personal affairs of that person." The Tribunal held that a corporation can have "personal affairs" within the meaning of that expression in s. 12 (2), and therefore documents relating to the "personal affairs" of the appellants would not be excluded from access by reason only of s. 12 (2). From that decision, the respondent cross-appealed to the Federal Court.
Held (per curiam): (1) Section 38 of the F. of I. Act should be construed as applying to enactments which specify the nature or quality of the information which is prohibited from disclosure. It has no application to an enactment, such as s. 47 (1) of the N.C.S.C. Act, which identifies the information merely by reference to the capacity of the person who has received or is in possession of the information.
(2) An enactment will apply "specifically", within the meaning of s. 38, to information of a certain kind if the enactment is formulated with such precision that it refers with particularity to the information.
(3) The expression "personal affairs" in s. 12(2)(a) refers only to the affairs of a natural person and not to the affairs of a corporation.
Motel Marine Pty Ltd v. I.AC (Finance) Pty Ltd [1964] HCA 7; (1963) 110 CLR 9, referred to;
Lochgelly Iron and Coal Company Ltd v. McMullan [1933] UKHL 4; (1934) AC 1, distinguished.
HEARING
Sydney, 1983, December 5; 1984, March 1. 1:3:1984APPEAL.appellants' appeal from the respondent's rejection of an application for access to certain documents held by the respondent and said to be accessible under the Freedom of Information Act 1982 (Cth).Appeal from a decision of the Administrative Appeals Tribunal dismissing the
J. J. Spigelman, for the appellants.
G. F. Griffith Q.C. and G. Gibson, for the respondent.Solicitor.
Cur. adv. vult.Solicitors for the appellants: Dawson Waldron.
Solicitor for the respondent: T. A. Sherman, Acting Commonwealth Crown
F. P. CARNOVALE.
ORDER
1. The appeal be upheld.2. The cross-appeal be upheld.
3. The matter be remitted to the Administrative Appeals Tribunal.
4. The National Companies and Securities Commission pay to The News Corporation Limited, Mirror Newspapers Limited, Nationwide News Pty. Limited and Control Investments Pty. Limited half their costs of the appeal and cross-appeal.
Orders accordingly.
DECISION
In this matter we have had the advantage of perusing the draft reasons of St.John J. We agree with his conclusion that the appeal and cross appeal be upheld and generally with his reasons. As this is the first occasion upon which ss.12 and 38 of the Freedom of Information Act 1982 have been considered by the Full Court of this Court we think it desirable that we express our own reasons for upholding the appeals. The object of the Freedom of Information Act 1982 is conveyed by its long
title "An Act to give to members of the public rights of access to official
documents of the Government of
the Commonwealth and of its agencies". An
agency is defined to mean "a Department or a prescribed authority". A
prescribed authority
is defined and given a wide meaning. The object of the
Act is described in some detail in s.3. It is to extend as far as possible
the
right of the Australian community to access to information in possession of
the Government of the Commonwealth by -
(a) making available information about the operations of departments
and public authorities; and
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons.
The right of access is given by s.11. This provides that, subject to the Act, every person has a legally enforceable right to obtain access in accordance with the Act to a document of an agency other than an exempt document or an official document of a Minister other than an exempt document. There are some documents to which the Act does not apply because they are made available in other ways (s.12). Also it may be noted that the Act applies only to a document which becomes a document of an agency or an official document of a Minister after the date of commencement of Part III of the Act (sub-s.12(2)). A document of an agency or an official document of a Minister which relate to a person's personal affairs or which are necessary to enable documents to which access is given to be understood are covered by a provision for relation back to an earlier time. (See now Freedom of Information Amendment Act 1983 (s.7)).
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 (see Commonwealth v John Fairfax & Sons Limited [1980] HCA 44; (1981) 55 A.L.J.R. 45 at p.49 per Mason J.).
There are two Schedules to the Act which list various bodies which are wholly or partly exempt from its provisions. Also the Act contains provisions exempting various types of documents. These documents are mainly the subject of exemptions set forth in Part IV. Thus, exemption is provided in Part IV for documents affecting national security, defence, international relations and relations with States (s.33); Cabinet documents (s.34); Executive Council documents (s.35); internal working documents (s.36); documents affecting enforcement of the law and protection of public safety (s.37); documents to which secrecy provisions of other enactments apply (s.38); documents affecting financial or property interests of the Commonwealth (s.39); documents concerning certain operations of agencies (s.40); documents affecting personal privacy (s.41); documents subject to legal professional privilege (s.42); documents relating to certain business affairs, for example, trade secrets (s.43); documents affecting national economy (s.44); documents containing material obtained in confidence (s.45); documents disclosure of which would be contempt of Parliament or contempt of court (s.46); and certain documents arising out of companies and securities legislation (s.47).
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. Indeed, there is a vast
body of American authority
concerning the interpretation of the American Freedom of Information Act 5
U.S.C. 552, which was in some respects used as a model, which suggests that
the provisions of the Act concerning access are to be "generously
construed"
while the exemptions are to be "narrowly construed". (See cases cited in
United States Code Annotated Title 5 Government
Organization and Employees
pp.82 et seq and Cumulative Supplement for use in 1983 pp.12 et seq). This
approach in America may in
part be due to the presence in the statute of the
following provision following the exemptions:
"552(c) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress."
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.
The fact that a document is exempt under this Act is not intended to prevent or discourage Ministers or agencies from publishing or giving access to documents (including exempt documents) where they can properly do so or are required by law to do so (s.14). However there is a practical restriction upon the operation of s.14 which arises from the fact that ss.91 and 92 limit the protection given against certain actions, for example, defamation and in respect of offences, to access given because it was required by the Act or in the bona fide belief that it was required so to be given.
One other provision should be noted, that is, that where it is possible for the agency or Minister to make a copy of a document with such deletions that the copy would not then be an exempt document and would not by reason of the deletions be misleading, then access may be available to the document with the exempted material deleted (s.22 and see sub-s.58(2)).
It is with this background in mind that we turn to consider the two particular exemptions which were argued before us on this appeal. It will be noted that the decision on these two exemptions will not finally determine the appellants' ("News Corporation") right of access to the relevant documents.
The first question argued before us was, as St.John J. says, whether s.47 of
the National Companies and Securities Commission Act 1979 ("the N.C.S.C. Act")
is an enactment of the kind referred to in s.38 of the Freedom of Information
Act 1982 ("the Act"). This is a matter to be decided by reference to the words
of s.38, construed in their context. It is in the following terms:-
"38. A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."
Section 47 of the N.C.S.C. Act does prohibit certain persons "from
disclosing information", but the crucial question is whether it can be said
that that information
is "of the kind" referred to in s.38. Section 47 refers
to the particular persons and information to which it applies in the following
terms:
"47(1). Subject to this section, a person who is, or has at any time
been -
(a) appointed for the purposes of this Act or any other prescribed
Act;
(b) engaged as a member of the staff of the Commission; orCommission or any function or power on behalf of the Commission,
(c) authorized to perform or exercise any function or power of the
shall not, except to the extent necessary to perform his official
duties, or to perform or exercise such a function or
power, either
directly or indirectly, make a record of, or divulge or communicate to any
person, any information that is
or was acquired by him by reason of
his being or having been so appointed, engaged or authorized, or make use
of any such information,
for any purpose other than the performance of his
official duties or the performance or exercise of that function or power.
Penalty $5,000 or imprisonment for one year, or both."
Section 47 describes the information, the disclosure of which is prohibited, as information that has been acquired by a person who is within the categories referred to in paras.47(1)(a)-(c). In other words the important aspect is the capacity in which the relevant person acquires the information. If the disclosure of this information is to be exempt under s.38 of the Act, it must be because it is "information of a kind contained in a document in respect of which there is an enactment applying specifically to information" of that kind.
The N.C.S.C. argued before the Tribunal and before us that s.47 satisfied the requirements of s.38 because it defined the kind of document by reference to the capacity in which the relevant person received the information. The Tribunal was of the opinion that by so doing s.47 sufficiently described the category of information with which s.38 deals. With respect to the learned President of the Tribunal and his careful reasoning we cannot accept this conclusion as correct. We are firmly of the opinion that s.38 expressly and intentionally directs attention to the nature of the information contained in the document and not to the capacity of the person who has received the information. This is made clear by the words in s.38 "information of a kind contained in the document".
Section 38 defines a particular category of exempt documents with some care, although the generality of the words used leaves scope for argument. These documents are exempt because, stated generally, they contain information and because there is in force an enactment relating to that information which prohibits its disclosure. Thus the document is defined by reference to the information it contains and the fact that persons are prohibited from disclosing that type of information.
The crucial question is as to the kind of information which it is necessary for the document to contain before it can be elevated to the class of exempt documents. The section states it as being information in respect of which an enactment "applies specifically", which enactment prohibits persons therein referred to from disclosing it. For the purpose of deciding whether the document is exempt, the section necessarily requires that the nature of the information in the subject document first be determined. Then the question is to ascertain whether "there is in force an enactment applying specifically to information" which the subject document has been found to contain ("the particular information"). In this respect the legislature has stated quite explicitly that to have relevance an enactment must apply "specifically" to the particular information. It is not enough for the enactment to have general application or to be formulated in such general terms that it would encompass the particular information without expressly referring to it. The enactment must be formulated with such precision that it refers with particularity to the information.
Viewing the crucial words in s.38 in this way, it is, in our opinion, clear where the legislature has placed the emphasis in identifying exempt documents under this head. It applies exclusively to documents which contain information of a specified kind; and to ascertain what information the subject document contains must be the first step in determining a claim to exemption. It is only after both the particular information in the document and any relevant enactment has been identified that the question arises whether that enactment refers to persons and prohibits them from disclosing the particular information. No support can be found in the words of the section for an argument which ignores the emphasis which is placed on the information contained in the document and which seeks to establish as crucial the fact that persons referred to in the enactment are prohibited from disclosing information. Such an argument overlooks the fact that the section goes to some lengths to identify the type of information which they are prohibited from disclosing. It attaches no necessary significance to the status of the persons prohibited other than they are referred to in the enactment.
In our opinion this construction of s.38 receives support from a consideration of the enactments which prohibit persons from disclosing information. We were referred to many secrecy provisions. Counsel for News Corporation divided these into three categories: those which define the kind of information by reference to the characteristics or qualities of the information, those which rely upon the status or capacity of the person in possession of the information and an intermediate hybrid group. The latter category refers specifically to the capacity of the person in possession of the information and only generally to the characteristics of the information. It is not necessary to consider further this category except to say that whether it is within s.38 may depend upon the significance it is proper to attach to the word "specifically" in that section.
A few examples of the two contrasting categories will suffice to illustrate
the ambit of s.38. Section 70 of the Crimes Act 1914 provides as follows:
"70(1). A person who, being a Commonwealth officer, publishes or
communicates, except to some person to whom he is authorized
to publish or
communicate it, any fact or document which comes to his knowledge, or into
his possession, by virtue of his office,
and which it is his duty not to
disclose, shall be guilty of an offence."
We agree with the contention of counsel for the News Corporation that this provision is similar to s.47 in that it defines the information which is not to be disclosed only by reference to the fact that it came into the possession of the officer by virtue of his office.
Section 78 of the Crimes Act 1914 by way of contrast in sub-s.(1) makes
specific reference to the characteristics of the information. It is, to the
extent relevant,
as follows:
"78(1). If a person for a purpose intended to be prejudicial to the
safety or defence of the Commonwealth or a part of
the Queen's dominions-
(a) makes a sketch, plan, photograph, model, cipher, note, document or
article that is likely to be, might be or is intended
to be directly or
indirectly useful to an enemy or a foreign power;
(b) obtains, collects, records, uses, has in his possession or
communicates to another person a sketch, plan, photograph,
model, cipher,
note, document, article or information that is likely to be, might be
or is intended to be directly or
indirectly useful to an enemy or a
foreign power; or
(c) . . .We do not wish to express a final view about a section which has not been the subject of full argument and which is not in issue in the proceedings before us. However, as at present advised we see no reason to disagree with the submission of counsel for News Corporation that s.78 of the Crimes Act illustrates a type of section which would bring about exemption under s.38 whereas s.70 of the Crimes Act illustrates a type of section which would not exclude documents in the possession of an officer from disclosure.
he shall be guilty of an indictable offence."
We were also referred to contrasting provisions in the Atomic Energy Act
1953. Section 53 is in the following terms:
"53. A member of the Commission or an Advisory Committee, or an
officer or employee of the Commission, shall not, except
in the course of
his duty or with the approval of the Commission, communicate to a person
any information concerning the activities
of the Commission or the
contents of a document to which he has had access by reason of his
position as such a member, officer
or employee.
Penalty: Imprisonment for 7 years."This section in its general reference to the contents of a document may be regarded as similar to s.47 of the N.C.S.C. Act. On the other hand s.48 of the Atomic Energy Act may be regarded as furnishing another illustration of a provision making specific reference to the characteristics or qualities of information which is not to be disclosed. To the extent relevant it provides:
"48(1). A person who has knowledge of or access to, or has in his
possession or under his control, a photograph, sketch,
plan, model,
article, instrument, appliance, note or other document, or any
information, which is capable of conveying, or
is or includes
restricted information and-
(a) . . .The definition of restricted information covers information on a substantial number of prescribed topics.
(b) . . .
shall not-
(c) publish it without authority . . .
(d) . . .
(e) . . .
(f) . . .
(g) . . .
Penalty: Imprisonment for 7 years."
In our view s.38 should be construed as applying when enactments specify the nature or quality of information which is not to be disclosed; it has no application if the enactment identifies the information merely by reference to the capacity of the person who has received or is in possession of the information.
On the question whether a corporation can have "personal affairs" as contemplated by para.12(2)(a) of the Act, it is not as easy to reach a firm conclusion. The Act clearly indicates a dichotomy between business and non-business affairs but whether it sees a corporation as having non-business affairs is uncertain. Clearly a natural person is perceived as having non-business affairs referred to as "personal affairs" but with corporations there is no such certainty. There is no provision in the Act which unambiguously uses the expression "personal affairs" in relation to the affairs of a corporation. However the Act differentiates between natural and corporate persons when dealing with business affairs, labelling such affairs in the case of a natural person as "business or professional" and "business commercial or financial" in the case of a corporation.
In s.3 of the Act the legislature acknowledges that the right of the Australian community to access to information in documentary form must be limited to the extent necessary to protect the private and business affairs of persons. Doubtless the expression "person" here encompasses both natural and corporate persons. But this is the only instance in the Act in which the non-business affairs of a person are described as his or its "private" affairs, although the marginal notes to certain sections refer to the protection of a person's privacy.
Paragraph 12(2)(a) of the Act gives a person whose personal affairs are
referred to in a document an extended right to access to the document. In the
ordinary
course his or its entitlement to access is limited to documents which
became a document of the agency after the commencement of the
Act. However if
the document relates to the personal affairs of a person, access may be
obtained if the document became a document of
the agency during the period of
5 years prior to commencement of the Act. This period has since been altered
by the Freedom of Information Amendment Act 1983. In the ordinary course a
person includes a corporation unless a contrary intention appears. However as
Mann C.J. said in Bennett-Hullin
v Clark (T.P.) & Co. (1944) V.L.R. 45 at p.46
when speaking of the word "person":
"This is a technical rule of convenience limited to the construction of written documents, and is quite contrary to all practice in spoken language, as was pointed out by Lord Blackburn in Pharmaceutical Society v London & Provincial Supply Association (1880) 5 App.Cas. 857 at p.868."
It may be of significance that the provisions placing a document relating to "personal affairs" in a separate category were not in the bill as originally introduced into the Senate. They were later included as were the provisions entitling a natural person to have incorrect information concerning his personal affairs amended.
In extending the period of access in respect of personal affairs, it is uncertain whether the legislature had in mind that a corporation may have personal in addition to business affairs. If a corporation can have such affairs, the question for determination is whether it was intended to extend the period in respect of a corporation or to limit the extension to affairs which are personal and in some instances peculiar to a natural person. As has been mentioned the words "personal affairs" are used on a number of occasions in the Act. In many instances such use is undoubtedly restricted to natural persons and in no instance are the words used with certainty in respect to the affairs of a corporation.
In sub-s.41(1), under the marginal note "Documents affecting personal privacy", a document is exempt if it involves unreasonable disclosure of information relating to the personal affairs of "any person (including a deceased person)". The reference to deceased person and lack of reference to a dissolved corporation or one struck off the register indicates that the legislature had in mind only a natural person as having, for the purposes of the section, personal affairs. This indication is confirmed by sub-s.41(3) which specifically deals with information (relating to personal affairs) of a medical or psychiatric nature, the disclosure of which could be "prejudicial to the physical or mental health or well being" of the person.
It is significant that when the Act deals with the need to preserve privacy of business documents, which need is without doubt relevant to natural persons as well as corporate persons, it expressly differentiates between such persons and the nature of their affairs. Section 43 provides that, as far as a natural person is concerned, the document is exempt if it discloses information in respect of his business or professional affairs. This exemption contrasts with that granted in the case of a corporate person, where it is granted to the "business commercial or financial affairs" of "an organization or undertaking".
Section 27 differentiates in like manner when dealing with requests for business documents. It again refers to the business affairs of a person (obviously a natural person though it does not use this expression) as his business or professional affairs whereas it uses the terminology "business commercial or financial affairs of an organization or undertaking" in respect of a corporation.
The expression "personal affairs" is also used in s.48 in circumstances where it can only relate to a natural person. That section empowers a person, who must be an Australian citizen or a person whose continued presence in this country is not subject to limitation as to time, to request amendment of incorrect information concerning his personal affairs. This right is not granted to a corporation.
It was put to us, as it was to the Tribunal, that a corporation must be seen
as having personal affairs, otherwise it would always
be excluded from
obtaining remission of the charge for provision of a document. This contention
was based on the provisions of sub-s.30(3)
which are as follows:
"30(3). Without limiting the matters which the agency or Minister may
take into account for the purpose of determining
whether or not to remit a
charge under sub-section (2), the agency or Minister shall take into
account-
(a) whether the payment of the charge or of any part of the
charge would cause financial hardship to the applicant;
(b) whether the document to which the applicant seeks access
relates to the personal affairs of the applicant;
and
(c) whether the giving of access is in the general public interest or in the interest of a substantial section of the public."
It is not a necessary consequence of the conclusion that a corporation does not have personal affairs that it be precluded from obtaining a remission of fees. All that the sub-section does is to indicate that when exercising its discretion on remissions, the agency is obliged to take into account the fact that the document relates to personal affairs. It does not say that if it does not so relate, a remission shall in no circumstances be granted. It merely states that, if it does so relate, this is a relevant consideration to which some weight must be given in deciding whether to remit fees.
These provisions of the Act support the view that it is not intended that the expression "personal affairs" is applicable to a corporation. There is nowhere to be found an unequivocal indication to the contrary. There are clear indications that the legislation attaches considerable significance to the personal affairs of a natural person. The privacy of such personal affairs is to be protected, information about them must be correct or at least liable to be corrected on request, access to documents containing information about personal affairs should be more readily and in some circumstances less expensively obtainable. These are all cogent considerations which are of greater significance to a natural person than to a corporation, and justify disparate treatment of this aspect of the affairs of a natural person.
We agree for those reasons with the opinion of St.John J. that the expression "personal affairs" in para.12(2)(a) refers only to the affairs of a natural person and not to the affairs of a corporation.
We would allow the appeal and cross-appeal and remit the matter to the Administrative Appeals Tribunal. Each party has been partly successful. We think the appropriate order for costs would be that the Commission pay half the costs of News Corporation of the appeals.
This appeal from a decision of the Administrative Appeals Tribunal, raises a question of law which may be simply expressed. That question is whether s.47 of the National Companies and Securities Commission Act 1979 ("the N.C.S.C. Act") is an enactment of the kind referred to in s.38 of the Freedom of Information Act 1982 ("the Act"). The appellants urge the simple answer "no" and the respondent, supporting the decision appealed from, the simple answer "yes". A cross-appeal involving an entirely separate question, is dealt with later.
The Act, which Counsel for the respondent described as interim legislation with a long period of gestation, has, as yet, received little judicial attention.
The facts with which this Court is, and the Tribunal was concerned, are simple and lacking in controversy. The National Companies and Securities Commission ("the Commission"), a body corporate which owes its existence to the N.C.S.C. Act is, by that Act, charged with the duty, inter alia, of surveillance of the acquisition of shares in circumstances where control or potential control of companies may pass from one to another. An expansive treatment of its functions and structure is contained in the reasons for decision of a Full Court of this Court in The News Corporation Limited v. National Companies and Securities Commission, unreported 28th October, 1983.
In exercise of its duty of surveillance, the Commission undertook the investigation of transactions between 1st August 1981 and 5th October 1982 by the appellants in the shares in Thomas Nationwide Transport Limited. The documents received and compiled pursuant to that investigation were sought to be declared accessible to the appellants pursuant to the Act in proceedings before the Tribunal. In refusing the application the Tribunal held that s.47 of the N.C.S.C. Act was an enactment of the kind referred to in s.38 of the Act, and the documents were, therefore, exempt from disclosure. It is against that ruling that the appeal is brought.
Section 38 of the Act is in the following terms:-enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."
"38. A document is an exempt document if there is in force an
Section 47 of the N.C.S.C. Act is in these terms:-time been --
"47. (1) Subject to this section, a person who is, or has at any
(a) appointed for the purposes of this Act or any other prescribed
Act;
(b) engaged as a member of the staff of the Commission; orCommission or any function or power on behalf of the Commission,
(c) authorized to perform or exercise any function or power of the
shall not, except to the extent necessary to perform his official
duties, or to perform or exercise such a function or
power, either
directly or indirectly, make a record of, or divulge or communicate to any
person, any information that is
or was acquired by him by reason of
his being or having been so appointed, engaged or authorized, or make use
of any such
information, for any purpose other than the performance of
his official duties or the performance or exercise of that
function or
power.
Penalty: $5,000 or imprisonment for one year, or both."
Section 47(2) of the N.C.S.C. Act specifies the circumstances in which a person, as described in s.47(1) is not precluded from production. That sub-section is not reproduced as nothing turns upon its terms.
The contentions of both parties to the appeal were directed to discover the meaning of the phrase in s.38 of the Act "applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind". The appellant urges that "kind" demands classification to be based upon intrinsic or internal content found on examination of the document itself; the capacity in which the information contained in the document is received is said to be insufficient to satisfy the word "kind". The respondent argues that "kind" encompasses a classification based upon the capacity in which the information is received and it follows that s.47 of the N.C.S.C. Act is an enactment providing exemption. Counsel for the respondent stressed the interim nature of the legislation and informed the court that a review of "secrecy provisions", of which s.38 of the Act should apply, was presently being undertaken. He invited attention to the legislative history, the second reading speech introducing the Bill for the Act, the Report of the Senate Standing Committee on the Freedom of Information Bill 1978, Parliamentary Paper 272/1979, and referred the court to two papers, one by Mr. L. J. Curtis, an Acting Deputy Secretary of the Attorney-General's Department, and a paper by Mr. Bayne, delivered at a seminar on Access to Government Information at the Australian National University in May 1983. None of these documents confirm the assertion that the legislation is of an interim nature and, even if they did, the Court's duty to interpret the Act would not be influenced as we can only conclude that the Act is intended to apply and its content, at the particular time of application, is the relevant consideration. Reference will later be made to these documents.
The various parts of the Act relied upon to provide guidance towards its true construction need reproduction in whole or in summary form.
The long title to the Act is "An Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies".
The object of the Act is contained in s.3 in the following terms:-right of the Australian community to access to information in the possession of the Government of the Commonwealth by --
"3. (1) The object of this Act is to extend as far as possible the
(a) making available to the public information about the operations of
the departments and public authorities and, in
particular, ensuring
that rules and practices affecting members of the public in their
dealings with departments and
public authorities are readily available
to persons affected by those rules and practices; and
(b) creating a general right of access to information in documentary
form in the possession of Ministers, departments
and public
authorities, limited only by exceptions and exemptions necessary for the
protection of essential public interests
and the private and business
affairs of persons in respect of whom information is collected and
held by departments and
public authorities.
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in sub-section (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information."
The Interpretation section, s.4, contains the following relevant
definitions:-
"agency" means a Department or a prescribed authority;made under an Act or under such an Ordinance;
"enactment" means--
(a) an Act;
(b) an Ordinance of the Australian Capital Territory; or
(c) an instrument (including rules, regulations or by-laws)
"exempt document" means (inter alia) a document which, by virtue of a provision of Part IV is an exempt document.
Here, I interpolate that there is no contest that the Commission is an agency and that s.47 of the N.C.S.C. Act is an enactment.
In s.7, certain bodies specified in Part I of Schedule 2 of the Act are exempted from the application of the Act, and in Part II of that Schedule, exempted as to documents in respect of competitive commercial activities.
Parts II and III of the Act provide for publication of certain documents and information and the mode of gaining access to documents and the agencies' duties in respect to requests for access.
Part IV of the Act is headed "Exempt Documents". And the first section
therein is s.32 which is in the following terms:-
"32. 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 provison 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."
Sections 33 to 47 of the Act each define exempt documents according to certain criteria. Those criteria include national security and defence documents, Cabinet documents, Executive Council documents, internal working documents, documents affecting enforcement of the law, documents affecting financial or property interests of the Commonwealth, documents concerning certain operations of agencies, personal privacy, legal professional privilege, business affairs, national economy, confidential documents, documents which would be in contempt of Parliament or court and certain documents received by the Commission in respect of the duties it has in relation to powers conferred upon it by the States. It was agreed by the parties that the Commission was not exercising powers conferred on it by the Companies Act 1981 (Victoria). This latter provision (s.47) is inapplicable where the Commission is exercising powers conferred by the Australian Capital Territory Code.
Section 55 of the Act provides for review by the Administrative Appeals Tribunal of a refusal to grant access, and in s.61, in proceedings before the Tribunal, the agency or Minister to which or to whom the request for access is made has the onus of establishing that the decision given was justified or that the Tribunal should give a decision adverse to the applicant. As no factual issues arise in the present case, the onus is of no importance, the matter being one simply of statutory interpretation.
By s.92, the provision of access to documents by officers is protected in
the following terms:-
"92. Where access has been given to a document and--authority, in accordance with section 23 or 54, to make decisions in respect of requests, in the bona fide belief that the access was required by this Act to be given,
(a) the access was required by this Act to be given; or
(b) the access was authorized by a Minister, or by an officer having
neither the person authorizing the access nor any person concerned in the giving of the access is guilty of a criminal offence by reason only of the authorizing or giving of the access."
The number of statutes, regulations and statutory rules which prohibit or restrict publication or disclosure of information and which require evidence to be taken or meetings to be held in camera is long. A precise figure was not available, but the total is clearly in excess of two hundred.
Counsel for the appellant divided those enactments that restricted or
prohibited disclosure or publication of information into three
categories.
Category 1 included those that define the information to which they apply by
intrinsic characteristics. The second defined
the information subject to the
prohibition by referring both to the capacity in which it was received and its
restriction to matter
that related to "other persons", that is, persons other
than the officer prohibited. The third defined the information only by either
the mode by which or the capacity in which it was received. An example of this
third category was reg.35 of the Public Service Regulations
which is in the
following terms:-
"35. Except in the course of official duty, no information concerning public business or any matter of which an officer or employee has knowledge officially shall be given, directly or indirectly, nor shall the contents of official papers be disclosed, by an officer or employee without the express authority of the Chief Officer."
Other examples relied upon were certain sections of the Crimes Act where the information, the subject of the prohibition, is identifiable by the content.
Neither party to the appeal argued that Public Service Regulation 35 or enactments similar in definition of the information to which it was directed, caused such information to be exempt under s.38 of the Act. The Act would have no work to do in relation to Departments of Government if it did so apply. No "kind" is identified and the word "specifically" is relied upon by the appellant to lend support to the need for definition by describing the intrinsic characteristics of the information to be exempted. The appellants' argument then proceeded that reg.35 was identical to s.47 of the N.C.S.C. Act in that there was no attempt to define the information by any intrinsic quality. At this point the comment can be made that the functions of the Commission limit the information likely to be received to a class consistent with its objects and functions but such a classification lacks specificity.
It is appropriate at this stage to point to some difficulties that the relevant words of s.38 of the Act produce. The work the adverb "specifically" is intended to do is not as clear as it could be. It governs "applying". All enactments "apply". To apply "specifically" must, in the context, be intended to be a delimitation of the application. It expresses an opposite notion to that of "generally" or "vaguely". The most appropriate meaning of "kind" is "class of things". Information received in a particular capacity could be said to be different to information received in a different capacity but such a differentiation gives no indication of the intrinsic or internal characteristics of the information received.
It is permissible for the court to look at existing legislation containing
secrecy provisions in order to attempt to resolve the
interpretive problems
posed by s.38 of the Act. The best known example with perhaps the widest
application, in the sense that it
affects the greatest number of citizens, is
s.16 of the Income Tax Assessment Act 1936. The relevant part defines
"officer" as a person employed who may acquire information relating to the
affairs of any other person
disclosed under the provisions of the Act. The
general secrecy provision is in these terms:-
"16. (2) Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any such information so acquired by him."
In the categorisation advanced by the appellants, this secrecy provision falls into the second category. The dividing line between the second and third category is that the former adds a qualification excluding information about the officer himself; it is confined to information about "other persons".
Counsel for the appellant argued that it was not necessary to consider the application of s.38 of the Act to s.16 of the Income Tax Assessment Act but, if it were permissible for the Court to do so, regard could be had to its existence to provide guidance as to legislative intention. However, it is not permissible to attempt to assess the legislative intention generally in relation to exemption because s.32 of the Act prohibits consideration of other sections in Part IV of the Act. Inclusion in, or exclusion from, in the subject section is not a permissible consideration in the interpretation of the particular section relied upon to grant exemption.
Counsel for the respondent to the appeal invited the Court not to give s.38 its ordinary or literal meaning. As already indicated, he described the legislation as interim in nature and referred the court to the equivalent section in a Bill advanced in 1978. Because of the novelty of the general purpose of the Act, the Court should, he argued, regard it as idiosyncratic to the extent that conventional authorities for reference on interpretation were non-existent. He sought to rely on a deduction of Mr. Curtis, in the paper referred to, that most of the secrecy provisions in prior legislation would survive. Even if it were permissible to take this prediction into account, we would not be assisted. It is clear that we cannot do so. The reference to Mr. Bayne's paper is not supportive of the respondent's argument because that author's view at p. 36 of the relevant paper, is that the words "specifically to information of that kind" require that "the information in the document be examined to determine whether it is of such a character that it falls within the statutory language". He then goes on to give an example from the Structural Adjustment (Loans Guarantees) Act 1974 where the prohibition on the officer divulging information "concerning the affairs of a firm acquired by him in the course of those duties . . . ". Clearly the character of the information is there more specifically defined than in the s.47 under review. The second reading speech and the Senate Standing Committee Report were not helpful on the interpretation of s.38 of the Act. Counsel for the respondent went on to rely upon the obviously "commercially sensitive and confidential nature of the matters within the orbit of the Commission's exercise". The short answer to this is that, although this may well be relevant for exemption under another section of Part III, no reference was made by the legislature in s.38 to information of that description. He also sought to call in aid the object section and the reference in paragraph 3(1)(b) to the "exemptions necessary for the protection of essential public interests". Again, if the further qualification of "essential public interests" were to be added to the description of the information sought to be protected by s.38, the legislature would have said so.
Although the matter is not without difficulty, I am of the opinion that the intention of the legislature exhibited by s.38 of the Act is at least fairly clear and that s.47 of the N.C.S.C. Act is not the kind of enactment which the former section defines. I therefore agree that the appeal should be upheld.
The cross-appeal challenges the Tribunal's decision that corporations can
have "personal affairs" within the meaning of paragraph
12(2)(a) of the Act
which is in the following terms:-
"12. (2) A person is not entitled to obtain access under this Part
to a document or a part of a document that became
a document of an agency
or an official document of a Minister before the date of commencement of
this Part unless--
(a) the document or that part of the document contains information relating to the personal affairs of that person and the document became a document of the agency or an official document of the Minister not earlier than 5 years before the date of commencement of this Part; or. . . . "
No definition of "personal" or "personal affairs" is contained in the Act.
"Business affairs" and "professional affairs" are referred
to in s.27.
Exemption for documents relating to "business affairs" is granted in s.43. The
word "person" used in any Act includes
a "body corporate" unless a contrary
intention appears; Acts Interpretation Act 1901, s.22. This does not mean that
the adjective "personal" can be likewise translated. According corporations
legal personality and its consequences
has a long history. The capacity of a
borrower corporation to "sign personally" under the Tasmanian Lendings of
Money Act 1915 did
not exist; Motel Marine Pty. Ltd. v I.A.C. (Finance) Pty.
Ltd. [1964] HCA 7; (1963) 110 C.L.R. 9. Therein, Kitto, Taylor and Owen, JJ. quoted both
ancient (commencing with Coke on Littleton) and modern authority on the
artificiality
of the corporation. Their Honours approved Salmond on
jurisprudence; "a corporation having neither soul nor body". The respondent
to
the cross-appeal relied upon Lochgelly Iron and Coal Company, Limited v.
McMullan [1933] UKHL 4; (1934) A.C. 1 where the House of Lords held that the appellant
corporation could be held to be "personally negligent" in failing to perform a
statutory
duty to roof a coal mine, such failure resulting in death of a
former exmployee. A Workers Compensation Act gave the employee or
his
dependants the option of proceeding under that Act or proceeding independently
of that Act, but provided that the employer should
not be liable "except in
the case of personal negligence". Lord Atkin (at p. 9) said that the words
"personal negligence" apply to
both the employer and to the person for whom he
is responsible. His Lordship went on:-
"They appear to denote no more than the word negligence, the word 'personal' having special reference to the employer, in order to make clear that in ordinary cases where the employer would only be vicariously liable for the negligence of servants, but might be excused by the doctrine of common employment, he is to remain liable if it is he himself who was negligent and not merely his servants. Where the duty to take care is expressly imposed upon the employer and not discharged, then in my opinion the employer is guilty of negligence and of 'personal' negligence."
Lord Wright (at p.21) ascribed the use of the phrase "personal negligence" in respect of a breach of duty to having been "imposed on him by law and of such a character that he is debarred from avoiding responsibility by delegating its performance, or by invoking the doctrine of common employment". The decision is therefore, of no assistance for present purpose.
It is clear, in my view, that "personal" and "business" affairs were different in the mind of the draftsman. A corporation, brought into existence for business, can have business affairs. So too can real persons but, in addition, affairs relating to family and marital relationships, health or ill health, relationships with and emotional ties with other real people.
I, also, would uphold the cross-appeal. The matter should be remitted to the Administrative Appeals Tribunal. As both the appeal and the cross-appeal succeeded, the Commission should pay half of the appellants' costs.
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