Re Attorney-General'S Department and Australian Iron and Steel Pty Limited v Peter Cockcroft; G260 of 1985 Administrative Law [1986] FCA 35 (21 February 1986)

FEDERAL COURT OF AUSTRALIA

Re: ATTORNEY-GENERAL'S DEPARTMENT and AUSTRALIAN IRON AND STEEL PTY. LIMITED
And: PETER COCKCROFT
Nos. G274 of 1985; G260 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Sheppard J.
Beaumont J.

CATCHWORDS

Administrative Law - Freedom of information - Whether documents exempt from disclosure under ss. 43 (1) (c) (ii) and 45 - Meaning of "could reasonably be expected to prejudice the future supply of information" - whether disclosure would constitute a "breach of confidence" - degree of confidentiality required.

Words and Phrases - "expect".

Freedom of Information Act 1982, ss. 43 (1) (c) (ii) and 45.

Re Actor's Equity Association of Australia and Australian Broadcasting Tribunal (1985) 3 A.A.R. 1

News Corporation Ltd. v. National Companies and Securities Commission (1984) 57 A.L.R. 550

Jason Kioa v. The Honourable Stewart John West (High Court, unreported, 18 December 1985)

Ex parte White; In re White (1885) 14 Q.B.D. 600

Re Witherford and Department of Foreign Affairs (1983) 5 A.L.D. 534

Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. (No. 2) (1985) 59 A.L.J.R. 77

Franchi v. Franchi (1967) R.P.C. 149

Orr v. The State (1958) 111 So. 2d 627

Crown Building Co. Limited v. Inland Revenue Commissioners (1946) 1 All E.R. 452

Western Natural Gas Co. v. Cities Natural Gas Co. (1966) 223 A. 2d 379

Koufos v. Czarnikow Limited (1967) 1 A.C. 350

HEARING

SYDNEY
21:2:1986

ORDER

The appeals be allowed.

The decisions of the Administrative Appeals Tribunal be set aside.

The matter be remitted to be heard and decided again, with the hearing of further evidence.

Peter Cockcroft pay the costs of the Attorney-General's Department and Australian Iron and Steel Pty. Limited in these appeals.

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

DECISION

These appeals from the Administrative Appeals Tribunal are brought pursuant to s. 44 of the Administrative Appeals Tribunal Act, 1975 on a number of questions of law. The first applicant, the Department of the Attorney-General, and the second applicant, Australian Iron and Steel Pty. Limited ("A.I. & S."), challenge the decisions of the majority of the Administrative Appeals Tribunal, first, refusing to uphold claims by the applicants that certain documents and parts of certain other documents were exempt from disclosure for the purposes of Part IV of the Freedom of Information Act, 1982 ("the Act") and secondly, directing that access be granted to such documents.

2. Exemption was claimed on two grounds. In respect of certain documents, s. 43 (1) (c) (ii) of the Act was relied upon by both applicants. It provides:

"43.(1) A document is an exempt document if its

disclosure under this Act would disclose -

. . .

(c) information. . .concerning the business,
commercial or financial affairs of an
organization or undertaking, being information -

. . .

(ii) the disclosure of which under this Act
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 the administration of
matters administered by an agency."

3. In respect of the remaining documents in question, A.I. & S. relied on s.45(1) of the Act:

"45.(1) A document is an exempt document if
its disclosure under this Act would constitute a
breach of confidence."

4. The claims for exemption arose in the following circumstances. In August 1980, the respondent, Mr. Peter Cockcroft, complained to the New South Wales Committee on Discrimination in Employment and Occupation ("the Committee") of what he alleged to be "political" discrimination in employment on the part of A.I. & S. The burden of Mr. Cockcroft's complaint was that A.I. & S. had refused to employ him at its Port Kembla steelworks because he was an officer of the South Coast branch of the Communist Party of Australia.

5. In order to understand the respective contentions of the parties, some explanation of the constitution and administration of the Committee is necessary. In June 1973 Australia ratified the International Labour Organisation (ILO) Convention 111 - Discrimination (Employment and Occupation) 1958. To implement the obligations it assumed under the Convention, the Commonwealth Government established National and State Committees on Discrimination in Employment and Occupation. The broad functional objectives of the Committees are to promote equality of opportunity and treatment in employment and occupation and to receive, investigate and endeavour to resolve complaints alleging discrimination in employment and occupation. To enable the Committees to perform these functions, the Federal Parliament appropriates an annual allocation of funds. These funds were originally administered by the Department of Employment and Industrial Relations, on the advice of the National Committee. Funding is now administered by the Attorney-General's Department. The National Committee consists of an independent Chairman/Convener and representatives of, inter alia, the Commonwealth Government, employer organisations and trade unions. The State and Territory Committees consist of an independent Chairman/Convener, a Commonwealth Government representative (the Regional Director of the Department of Employment and Industrial Relations) and one representative each of the State or Territory Government, employer organisations and trade unions.

6. The National Committee is serviced by officers located in the Central Office of the Department of Employment and Industrial Relations and the State/Territory Committees by officers located within the Department's Regional Offices. The Department of Employment and Industrial Relations, originally, and now the Attorney-General's Department, has the functional responsibility of servicing the Committees on Discrimination in Employment and Occupation and allocates staff for this purpose. Since staff so provided have the responsibility of maintaining control over the records and documents of the Committees, it is common ground that the Attorney-General's Department is the appropriate party to represent the Committee in these proceedings.

7. As there is no Federal legislation providing for the establishment of the Committees, they have no power to compel complainants and respondents to appear before them or to give evidence. In most cases, the Executive Officer conducts the investigation of a complaint, inviting the parties to submit written evidence or attend for interviews. The Committees do not conduct public hearings and do not direct their activities to publicly identifying cases of discrimination or apportioning blame between complainants and respondents. They endeavour to conciliate between the parties with a view to arriving at a resolution of the complaint which is, wherever possible, satisfactory to both parties.

8. In the field of discrimination, complainants may take legal action pursuant to State or Federal legislation. However, complainants who resort to the Committees enjoy the advantage of privacy and a similar advantage is available to respondents. In a document entitled Procedural Guidelines for Committees on Discrimination in Employment and Occupation (published in 1983) the following guideline paragraph appears:

"4. 18 Lacking Statutory powers to compel
information, the Committees must rely on
co-operation. The guarantee of strict
confidentiality is the best way to
encourage complainants, respondents and
interested parties to provide information
for a Committee's investigation."

9. To revert to the history of the matter, in August and September 1980, the Committee sought the views of A. I. & S. on Mr. Cockcroft's complaint. A. I. & S. responded by letter dated 10 September 1980 as follows:

". . . This Company has decided not to offer
employment to Mr. Cockcroft. Mr. Cockcroft has
never been employed by this Company. We
understand that Mr. Cockcroft arrived in
Australia from Britain about five years ago;
that in Britain he worked as a welfare officer,
teacher and a student union official at a
University and that in Australia he has been
employed in a warehouse and handicraft shop and
in a bookshop. (Our understanding as to the
above comes from reports in "Tribune -
Australia's Communist Weekly"). We also note
from a newspaper item we refer to later that Mr.
Cockcroft is said to have been employed by the
NSW Government Railways. We are, of course,
aware that Mr. Cockcroft is the South Coast
District Secretary of the Communist Party of
Australia, but we do not know whether this is a
paid or an honorary position.

Mr. Cockcroft's application for employment with
this Company has been the subject of some media
publicity - see, for instance, the "Illawarra
Mercury" item of 6 August 1980 headed "AIS
accused of Bias - Commo Leader Refused a Job".

Having regard to all these circumstances we
would like to be assured, before the matter is
taken further, that the Committee is satisfied
that Mr. Cockcroft's application for employment
with this Company is a genuine application. On
this aspect we would like to know whether Mr.
Cockcroft has sought employment with this
Company only or with other employers as well.
If his application has been to this Company
only, why is this so? If he has applied to
other employers, have his applications been
rejected, and, if so, has Mr. Cockcroft made
complaints to your Committee in respect to these
rejections? (We are not seeking the names of
such other employers but would like to know how
many, if any, there were.)

We should mention that, as Mr. Cockcroft's
complaint refers to the Federated Ironworkers'
Association, we have sent a copy of your letter
of 18 August and a copy of this reply to the
State Secretary of that union." (Emphasis
added).

10. On 18 September 1980, A. I. & S. provided the Commonwealth Minister for Industrial Relations at the time, Mr. Street, with three documents which were claimed to be exempt under the Act. Objection was taken by counsel for Mr. Cockcroft to our inspecting any of the documents for which exemption was claimed. However, the three documents handed to Mr. Street are described as follows in a schedule prepared by the Attorney-General's Department for the purposes of these proceedings:

"'AG9' Copy - AIS document handed to Mr. Street
- 17 September 1980 - brief statement of
reason for refusing employment."

"'AG10' Copy - AIS document handed to Mr. Street
- 18 September 1980 - contains background
material relied on by AIS in refusing
employment."

"'AG11' Copy - AIS document handed to Mr. Street
- 17 September 1980 - chronology of
Cockcroft's employment application."

11. (Exemption was claimed under both s. 43 (1) (c) (ii) and s. 45(1) for each of these documents).

12. Copies of these documents were forwarded by Mr. Street to Mr. Viner, then Commonwealth Minister for Employment and Industrial Relations, under cover of a letter dated 16 October 1980:

"(During my) visit to Port Kembla I was
approached by the General Manager of Australian
Iron and Steel, (Mr. Hall), regarding a problem
with an application for employment of a Mr P
Cockcroft which has been brought to the
attention of the New South Wales Committee on
Discrimination (in Employment) and Occupation.

I advised Mr. Hall that as the matter was within
your area of responsibility I would bring it to
your attention. I am forwarding copies of
background information (i.e. "AG9", "AG10" and
"AG11") and would appreciate any advice that you
may be able to offer."

13. By letter dated 3 November 1980, the Committee informed A. I. & S. that Mr. Cockcroft had advised it that he was registered with the Commonwealth Employment Service at Wollongong and that he had been referred to a number of prospective employers. By letter dated 19 November 1980, the Committee asked A. I. & S. to respond to Mr. Cockcroft's complaint. On 1 December 1980, A. I. & S. wrote to the Committee:

". . .

With respect, it does not appear to us that your
letter of 3 November 1980 answers the matters
raised by us in the extract quoted from our
letter of 10 September.

In particular, your letter of 3 November does
not indicate:-

(a) Whether the Committee is satisfied that Mr.
Cockcroft's application for employment with
this Company is a genuine application;

(b) Whether Mr. Cockcroft has sought employment
with the "various employers" to which he
has been referred by the Commonwealth
Employment Service at Wollongong;

(c) If Mr. Cockcroft has sought employment with
such employers, the result of such
applications;

(d) If any application has been rejected,
whether Mr. Cockcroft has made a complaint
to your Committee in respect of such
rejection;

(e) How many employers, if any, Mr. Cockcroft
has sought employment with.

It seems to us that the above points are ones of
real importance in considering whether or not Mr
Cockcroft's application for employment with this
Company is genuine and, accordingly, we await
your further advices."

14. By letter dated 15 December 1980, the Committee informed Mr. Cockcroft that a meeting was to be held on 9 January 1981 between a representative of the Committee and Mr. Hall as General Manager of A. I. & S. The evidence before the Tribunal was that at the meeting Mr. B. J. Hodgett, representing the Committee, informed Mr. Hall that "any documentation that you supply to the New South Wales Committee regardless of its content would be treated on a confidential basis."

15. By letter dated 19 January 1981, the Committee's executive officer pressed A. I. & S. for a response to Mr. Cockcroft's complaint. He invited A.I. & S. to state whether there were 'any other pertinent factors, as distinct from Mr. Cockcroft's political opinions as a member of the Communist Party of Australia which could have led your company to decide not to engage him as an employee." The executive officer indicated that he would pass on any information thus supplied to the members of the Committee.

16. On 20 February 1981, A. I. & S. wrote to the Committee. Exemption was also claimed under both s. 43(1)(c)(ii) and s.45(1) in respect of this document, which is described in the Attorney-General's Department schedule in these terms:

"'AG3' Original - letter and attachments - 20
February 1981 - AIS to NSW CDEO detailing
reasons for refusing employment of
Cockcroft."

17. The Committee met on 21 February 1981 and considered Mr. Cockcroft's complaint. It formed the opinion that no discrimination within the meaning of the International Labour Organization (ILO) Convention 111 - Discrimination (Employment and Occupation) 1958 had occured. It communicated that opinion to Mr. Cockcroft and A. I. & S. by letters dated 27 February 1981. A claim for exemption was made under s. 43(1)(c)(ii) in respect of the relevant part of the minutes of this meeting. The following description appears in the Attorney-General's Department schedule:

"'AG18' Copy - extract of minutes of 67th
meeting of NSW CDEO - 21 February 1981 -
records complaint and summarises AIS
position."

18. Claims for exemption were also made under s. 43(1)(c)(ii) in respect of portions of a number of documents generated by the Committee for its own internal purposes at this time. They are described as follows in the Attorney-General's Department schedule:

"'AG6' File note - 15 December 1980 - Assistant
Secretary, External Programmes Branch -
containing deleted exempt matter
concerning the position of AIS in
relation to employment of Cockcroft."

"'AG7' File note - 9 January 1981 - Assistant
Secretary, External Programmes Branch -
containing deleted exempt matter
concerning the position of AIS in
relation to employment of Cockcroft."

"'AG8' Minute - Assistant Secretary, External
Programmes Branch to Mr. Jefferies - 13
January 1981 - containing deleted exempt
matter outlining the position of AIS in
relation to employment of Cockcroft."

19. By letter dated 14 August 1981, the Committee wrote to A. I. & S. After referring to its earlier finding that no discrimination had occurred, the Committee said:

". . . The procedure normally adopted by Employment
Discrimination Committees is to communicate to
the complainant, where appropriate, the text or
substance of the reply to the allegations of the
person complained against. The New South Wales
Committee did not, however, supply Mr. Cockcroft
with the substance of your reply of 20 February
1981. (i.e. "AG3") Mr. Cockcroft has
subsequently approached the NSW Privacy
Committee seeking the reasons given by you for
not employing him.

Would you please advise me as soon as possible
as to whether you have any objections to the
text of your letter of 20 February being made
available to Mr. Cockcroft."

20. In its reply dated 8 September 1981, A. I. & S. said:

". . . In our view this is not a case where it is
appropriate for such a disclosure. At the time
of our earlier discussions with officers of your
organisation we were advised that the contents
of our response to Mr. Cockcroft's allegations
would remain confidential between our Company
and your organisation.

We expected that the issue relating to Mr
Cockcroft would have ended when the Employment
Discrimination Committee concluded in February
1981 that no discrimination had occurred on the
basis of Mr Cockcroft's political convictions.
However, since then, the issue has been taken up
further by the NSW Anti-Discrimination Board and
the relevant correspondence involving this Board
was sent to your organisation via Mr J Spencer
on 16 July 1981. Now, a third body, the NSW
Privacy Committee, has become involved in the
issue.

In all the circumstances as they presently exist
we are of the view that the text of our letter
of 20 February 1981 should not be made available
to Mr Cockcroft."

21. This question was, apparently, discussed by the Committee on at least two occasions. The Attorney-General's Department schedule claims exemption by virtue of s.43(1)(c)(ii) in respect of the following:

"'AG19' Original - agenda item of 70th meeting of
National CDEO - 22 July 1981 - concerning
procedures for investigating complaints
and release of information to NSW Privacy
Committee."

"'AG26' Copy - agenda item of 81st meeting of
National CDEO - 19 November 1982 -
concerning complaint, AIS position and
request for access to documents by NSW
Privacy Committee."

22. We will deal first with the claims for exemption made under s.43(1)(c)(ii). A considerable body of evidence was tendered to the Tribunal by the applicants in support of these claims for exemption. To some extent, the evidence overlapped with evidence adduced in support of claims for exemption under s.45(1) made by A. I. & S. In his evidence, Mr. Smith, a Senior Industrial Relations adviser to the Confederation of Australian Industry and an alternate member of the Committee, expressed the following opinion:

"Have you formed any conclusions as to the
significance of the ability of the committee to
elicit information from employers as part of its
operations?---Well, the committee, being one of
a conciliatory role and one which was
established on a tripartite basis so that you
could enlist the expertise of trade unions and
employers and government, could not effectively
operate unless it had the goodwill and trust of
the people with which it deals. The committees
deal in the very difficult area of employment
discrimination and what we try and do is ensure
that parties can work happily together and in
that way it requires a great deal of skill on
the part of the conciliators to bring about the
resolution of a complaint that can be ongoing.
We seek to change attitudes in relation to
discrimination; we do not want to overtly
modify behaviour, we want to get to the root
cause and seek to change attitudes."

23. He also explained how, in his view, confidentiality was important to those who approached the Committee:

"There are other agencies in the various states
and often people would prefer to go to the
legislative agency. But we still get a lot of
customers, if I could call them that, that
because of the nature in which our committee
deals with matters, that it is in confidence,
there is no public airing of the complaints and
we resolve issues between the parties."

24. Mr. Hodgett, a Special Projects Officer of the Department of Employment and Industrial Relations, gave evidence of a conversation he had at the meeting with senior executives of A.I. & S., including Mr. Hall, held on 9 January 1981:

"Can you remember what Mr. Hall said to that
question from you?---That - Mr. Hall said - that
the content of some of this material was of such
a nature that if it became public it could be
regarded as defamatory and he or his company
were loath to pass it on to the committee in
view of what could conceivably happen. I then
said to him that 'Any documentation that you
supply to the New South Wales committee
regardless of its content would be treated on a
confidential basis'."

25. However, in holding that no exemption under s.43(1)(c)(ii) had been made out, particular reliance was placed by the majority of the Tribunal upon the following evidence of Mr. Thirlwell, the Personnel Officer of A.I. & S.:

"MR McMAHON: Mr. Thirlwell, these proceedings
have been pending for some time now?---Yes.

Have they had any effect at all on the company's
response for information from any agency of the
Commonwealth?---No. Quite deliberately I
discussed this situation with the personnel
officers who receive a lot of the particular
requests for information that I referred to back
in evidence last August, to ensure that in the
interim period nothing like that should in fact
take place.

And in the interim period which, as I say, has
been for some years now - - -?---Yes.

Are you telling us that no change has been made
in the company's procedures for responding to
requests, for example, from CES or Social
Security?---Certainly not from AIS Port Kembla,
no. In fact - - -

It has been as frank in dealing with the
departments in that interim period as you have
been prior to the institution of these
proceedings?---I would certainly like to think
so but, taking it further than that, I have a
number of discussions with the senior officers,
for example, of the Wollongong branch of the CES
and I believe if they were finding any
difficulty in obtaining information they would
have ample opportunity of raising it with me,
and they have not done so. Rather, I took the
point of confirming with my subordinates that we
should try and be of as much assistance as we
can, without formalizing the situtation.

You have not issued any instructions to your
staff about heading letters "confidential" or
"private"? ---No, but I would have to stress to
you far and away the bulk of contact that I am
talking about is of a verbal nature rather than
finding its way into correspondence; and I
would also have to say to you that having regard
to the state of employment, for example, in the
Wollongong area in the last four years the level
of contact, say, from the CES to the steel works
about employees and the like has been
drastically reduced over that period from what
it was in 1979/80 when there were many many more
people not simply seeking employment but gaining
it.

But you recieve lots of written requests, do you
not, from government agencies?---Quite, quite.

And you respond to those in writing?---Yes, we
do, we do, but the main ones that I was looking
at here in terms of this was my practical
experience in the personnel department, which of
course was largely perhaps Social Security and
CES, things of that nature - but also these days
in terms of the Federal government, involving
the Steel Industry Authority and groups like
that.

Have you been asked for any information by the
New South Wales committee on what is referred to
as CDEO?---Equal opportunity, that is the equal
opportunity side?

Yes?---Well, we have had a rather contentious
issue on it at the moment in terms of the New
South Wales jurisdiction itself, but I am not
aware of any other request from the New South
Wales committee to AIS than in what I call the
Cockcroft case."

26. The majority of the Tribunal held that the "overwhelming" conclusion to be drawn from this evidence was that disclosure of the documents or the threat of such disclosure has had and will have no effect on the supply of the information in question: "The past in this case must be an infallible guide to the future. There could hardly be stronger evidence for guidance as to what could 'reasonably be expected' to happen."

27. Earlier, the majority had expressed the test to be applied in order to activate the operation of s.43(1)(c)(ii) as follows:

"The next question to be asked is whether the
disclosure of the information could reasonably
be expected to produce certain consequences.
This does not mean that those consequences must
be regarded as reasonable from a public interest
point of view. It means whether it is more
probable than not, looked at from an objective
point of view, that the consequences will flow.
This approach was broadly adopted by the
Tribunal in Re Actors' Equity Association of
Australia and Australian Broadcasting Tribunal
(1985) 3 AA.R 1."

28. It was submitted on behalf of the applicants that the majority of the Tribunal erred both in the construction of s.43(1)(c)(ii) and in the failure to hold that provision to be applicable in the present circumstances. In aid of the submission, reference was made to some observations of Woodward, J. as to the meaning of a similar provision, s.37(1) of the Act, in News Corporation Ltd. v. National Companies and Securities Commission (1984) 57 ALR 550 at pp 561-2:

"I think that the words 'would, or could
reasonably be expected to. . .prejudice' mean more
than 'would or might prejudice'. A reasonable
expectation of an event requires more than a
possibility, risk or chance of the event
occurring. On the other hand, if the
legislature had required a probability of
prejudice it could easily have said so. In my
view it is reasonable to expect an event to
occur if there is about an even chance of its
happening and, without attempting to suggest
words alternative to those chosen by the
draftsman, it is in that general sense that the
phrase should be read."

29. In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s.43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Jason Kioa v. The Honourable Stewart John West, High Court, unreported, 18 December 1985 per Mason, J. at p 36; see also per Gibbs, C.J. at p 12).

30. The majority of the Tribunal thought that an assessment of what was more probable than than not was called for. As Woodward, J. has pointed out, there are difficulties in this approach for the legislature has chosen not to introduce the notion of a "probable" result (cf. Ex parte White; In re White (1885) 14 Q.ED. 600). It is also unnecessary to consider whether an "even chance" or something of that kind is needed. It is preferable to confine oneself to the language of the provision itself and to attempt to form an opinion, on the evidence, as to what can reasonably be expected to happen if disclosure occurs. In our opinion, in departing from the terms of s.43(1)(c)(ii) and requiring the applicants to establish a case on the balance of probabilities, the majority of the Tribunal fell into error in their construction of the provision.

31. Further, in our view, the majority of the Tribunal fell into error in the significance it sought to attribute to the conduct of A.I. & S. in its dealings with the Committee during the pendency of the proceedings for review. The Committee, having indicated to A.I. & S. that it proposed to decline to disclose the documents to which access was claimed, no inference of the kind drawn by the majority was open. A.I. & S. was entitled to assume that, if it continued to provide information of the kind now in question, the Committee would decline to disclose it. That being so, it was wrong for the majority to use the evidence of Mr. Thirlwell to ground the inference sought to be drawn that A.I. & S. would continue to co-operate with the Committee in the future if the material now in dispute were disclosed to Mr. Cockcroft.

32. In the result, we would allow the appeal so far as concerns the exemptions claimed under s.43(1)(c)(ii). The question arises as to what other orders should now be made in this connection. Not having seen the documents in question we cannot attempt a judgment of the kind called for by s.43(10)(c)(ii). It must follow that we would order that this part of the case be remitted to the Tribunal to be heard and decided again with the hearing of further evidence.

33. There remain the claims for exemption based on s.45(1). As has been said, these claims, made only by A.I. & S., were pursued in respect of the following documents:

"'AG3' Original - letter and attachments - 20
February 1981 - AIS to NSW CDEO detailing
reasons for refusing employment of
Cockcroft."

"'AG9' Copy - AIS document handed to Mr Street -
17 September 1980 - brief statement of
reason for refusing employment."

"'AG10' Copy - AIS document handed to Mr Street -
18 September 1980 - contains background
material relied on by AIS in refusing
employment."

"'AG11' Copy - AIS document handed to Mr Street -
17 September 1980 - chronology of
Cockcroft's employment application."

34. The majority of the Tribunal, in holding that no case had been made out under s.45, acknowledged that the provision was wide enough to afford protection from disclosure in circumstances where an action for breach of confidence may not succeed (see Re Witherford and Department of Foreign Affairs (1983) 5 ALD 534 at p 542; and as to the general equitable jurisdiction to grant relief against abuse of confidential information independently of other causes of action, see Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. (No. 2) (1985) 59 ALJR 77 at p 85; Kearney, The Action for Breach of Confidence in Australia, at p 41). However, the majority was much impressed with the fact that A.I. & S. sent a copy of its letter dated 10 September 1980 to the Federated Ironworkers' Association. It was thought that "this set the tone for subsequent correspondence, Minutes and interviews." The majority of the Tribunal was also much influenced by the fact that information was given by A.I. & S. to Mr. Street in the knowledge that he would pass it on to Mr. Viner. The majority concluded that these circumstances deprived the communications from A.I. & S. in question of the degree of secrecy required to justify the protection of s.45(1).

35. In our opinion, the majority of the Tribunal fell into error in holding that the conduct of A.I. & S. in forwarding a copy of its letter dated 10 September 1980 to the Federated Ironworkers' Association was capable of characterising the subsequent dealings between the parties as lacking the necessary quality of confidence. The fact that, in one particular instance, A.I. & S. intended that the Union be made aware of the contents of its communication to the Committee cannot be determinative of the character of the subsequent dealings between A.I. & S. and the Committee in terms of their confidentiality or otherwise. The subsequent dealings must be assessed in their own context. The passage emphasised in the letter of 10 September 1980, a matter raised again by A.I. & S. in its letter dated 1 December 1980, shows that its concern at that stage was to resolve what it saw to be a preliminary question whether Mr. Cockcroft's application for employment was genuine, as it said in the emphasised passage, "before the matter is taken further." The correspondence indicated that A.I. & S. saw its dealings with the Committee as proceeding or possibly proceeding in a number of stages. It does not necessarily follow from that fact that A.I. & S. was prepared to make the Union aware of its query on a preliminary aspect of the matter that A.I. & S. was prepared to waive any confidentiality it might wish to protect in its communications with the Committee on the merits of the matter. That may well have involved very different considerations.

36. Further, in our view, the majority of the Tribunal erred in thinking that the intention of A.I. & S. that the contents of their communication to Mr. Street would be transmitted to Mr. Viner destroyed any confidentiality which might otherwise have attached to the information thus conveyed. Information may remain confidential in such circumstances: "The law does not require information to be absolutely inaccessible before it can be characterised as confidential. . .Publication of information to a limited number of persons will not destroy the confidential nature of information" (Gurry, Breach of Confidence, at p.73).

37. In Franchi v. Franchi, (1967) RPC 149, Cross, J. said (at pp 152-3):

"Clearly a claim that the disclosure of some
information would be a breach of confidence is
not to be defeated simply by proving that there
are other people in the world who know the facts
in question besides the man as to whom it is
said that his disclosure would be a breach of
confidence and those to whom he has disclosed
them.

. . .

It must be a question of degree depending on the
particular case, but if relative secrecy
remains, the plaintiff can still succeed."

38. It follows, in our opinion, that the majority of the Tribunal fell into error in assuming that because Mr. Street would pass on to Mr. Viner the information in the documents "AG9", "AG10" and "AG11" the claim for their confidentiality was destroyed.

39. It is true that no assertion of confidentiality of the material now in question was made on behalf of the Attorney-General's Department. However, it was clearly open to A.I. & S., as the party with the primary interest in maintaining its alleged secrecy, to seek to uphold a claim for exemption on this ground.

40. We would allow the appeal in respect of the claims made under s. 45 (1). The question arises as to what further orders should be made in this connection. Whether the communications in question attracted confidentiality is principally a question of fact. The preferable course is to remit this part of the case to the Tribunal to be heard again, with the hearing of further evidence.

41. Mr. Cockcroft must pay the costs of the appeals. If he applies, he should be granted a costs certificate in respect of the appeals pursuant to s. 6 (1) of the Federal Proceedings (Costs) Act, 1981.

42. We would make the following orders:

1. Appeals allowed.

2. Set aside the decisions of the Administrative
Appeals Tribunal.

3. Remit the matter to be heard and decided again,
with the hearing of further evidence.

4. Order that the respondent pay the costs of the
applicants of the appeals.

In this matter I have had the advantage of reading the judgment to be

delivered by Bowen C.J. and Beaumont J. I agree in their conclusions and with the orders they propose. So far as the case made by the applicant, Australian Iron and Steel Pty Limited, based on s. 45 of the Freedom of Information Act 1982 ("the Act") is concerned, I agree in the reasons expressed by the other members of the Court and have nothing to add. In relation to the case made by both applicants based on the provisions of s. 43 of the Act I wish to state my own reasons for concluding that the appeal should be allowed.

2. In my opinion the only question of law which arises for determination is the meaning and effect of the words "could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency . . ."; sub-para. 43 (1) (c) (ii) of the Act. The difficulty is to state the degree of certainty which is required before it can be said that the document in question will be an exempt document for the purposes of the section. The application of the words to a given case will usually involve an exercise of judgment and not give rise to a question of law. In most cases no appeal from a decision of the Administrative Appeals Tribunal will lie to this Court. But in the present case the applicants challenge the meaning given the words by the Tribunal. Essentially its conclusion was that documents are not exempt unless their disclosure will "more probabl(y) than not, looked at from an objective point of view", prejudice the future supply of information to the Commonwealth or one of its agencies.

3. References to Roget's Thesaurus and the Macquarie Thesaurus and to dictionary definitions of the word "expect" disclose that it has various shades of meaning. For instance, the Shorter Oxford English Dictionary defines it to mean:-

1. To wait.

2. To wait for, await.

3. To look for mentally; to look forward, regard as about to
happen; to anticipate the occurrence or the coming of.

4 (a) With "can" to look for for with likelihood.

(b) To look for as due from another.

5. To suppose, surmise that.

4. The Oxford English Dictionary itself defines the word "expected" to mean looked for or anticipated. The Macquarie Dictionary defines the word "expect" to mean, inter alia, to look forward to, to regard as likely to happen, to anticipate the occurrence or the coming of in the sense of "I expect to do it, I expect him to come", to look for with reason or justification or to surmise or suppose. The second edition of Webster's Dictionary says of the words "expect", "anticipate" and "hope", that they agree in regarding some future event as about to take place. Of these "expect" is said to be the strongest and implies some ground or reason in the mind for construing the event as likely to happen. It was after referring to this statement in Webster that the Court of Appeals of the State of Alabama in Orr v. The State (1958) 111 So. 2d 627 said (p. 635) that Nelson's order of the day at Trafalgar, "England expects every man to do his duty", would have been "reduced to pusillanimous pap" had the Admiral said, "England hopes . . ."

5. The word "expect" has been the subject of judicial attention in a variety of contexts both in the United Kingdom and the United States. In the United States the expression "reasonably expected" has been discussed on a number of occasions. Much depends on the context in which the word is used.

6. In Crown Bedding Co Limited v. Inland Revenue Commissioners (1946) 1 All ER 452 the Court of Appeal was concerned with a provision of the Finance Act 1944 (U.K.) which used the expression, "the main benefit which might have been expected to accrue from the transaction or transactions during the currency of excess profits tax". Lord Greene M.R. said (pp. 456-7):-

"Counsel for the appellants attacks that finding
by going straight to the construction of the
section, and he says that under the section it is
not open to the Special Commissioners to find
that the main benefit which might be expected to
accrue was avoidance or reduction of tax where
avoidance or reduction of tax was not a
probability but only a possibility. . . the ground
being that in order to bring the section into
operation there must be expectation of a benefit
by way of avoidance or reduction of tax in the
sense that a reasonable man would expect such
avoidance or reduction to accrue, not that he
would think that it might, in certain unlikely
events, accrue but that it would, in fact, in his
opinion, be likely to accrue.

In my opinion, that is much too narrow a
construction to put upon these words. After all,
the question of probability or possibility is a
matter really which can be considered as
resembling a scale. At the top of the scale is
certainty. At the bottom of the scale is
improbability so extreme that no sensible person
would ever take it into account. But, subject to
that, the precise point on the scale at which you
can say that a thing is probable rather than
possible and the precise point at which you say
that a probability falls to the level of a mere
possibility depends on the view taken by a
hypothetical observer. It seems to me that it is
quite impossible to put on the word 'expected'
the sense that a hypothetical observer must have
had that degree of confidence in the future as to
expect that the benefit would materialise."

7. It is to be observed that the expression in question was "might have been expected". The expression with which we are concerned in s. 43 of the Act is "could reasonably be expected."

8. The word "expectation" is defined in the Corpus Juris Secundum, Vol. 35, p. 230 as being the act or state of waiting or awaiting with confident anticipation. An "expectation" is said to be more than a bare hope; it is said to imply a high degree of certainty that a future event will occur. That meaning was applied in Western Natural Gas Co. v. Cities Natural Gas Co. (1966) 223 A 2d 379 at p 383. The word "expect" was there used in a contractual, not a statutory context.

9. In the end the problem we have involves us in construing the relevant provision in the Act in its context. I agree that it is unwise to endeavour to analyze a provision of this kind overmuch and that there are dangers in attempting to gloss ordinary English words. On the other hand, it is necessary to have an appreciation of what the words usually mean in every day language. I think it is clear that a higher degree of certainty is involved in the exercise than would be the case if the words used were, for instance, "a risk" of prejudice. But how much more certain must one be that prejudice might be the result of disclosure before one can say that it "could reasonably be expected"? The question is whether the Tribunal's test of disclosure more probably than not prejudicing the future supply of information is too strict. I think the better view is that it is but I have not found the problem without difficulty and I think that in resolving it, it should be remembered that the provision is contained in an Act which was intended to make available to members of the public a great deal of material which might otherwise have been regarded as confidential. We ought not be too ready to afford exemptionunless the words of the statute are clear.

10. The difficulty of ascribing a meaning to the word "expect" has not only troubled me. It appears to have troubled other judges including Lord Greene M.R. in the Crown Bedding case and also Woodward J. in News Corporation Limited v. National Companies and Securities Commission (1984) 57 ALR 550 who said (pp. 561-2) that a reasonable expectation of an event required more than a possibility, risk or chance of the event occurring. So much is, I think, clear. But the problem he then faced, as do we, was to endeavour to indicate the degree of certainty that is required before the relevant event "could reasonably be expected". He said that it was reasonable to expect an event to occur if there were about an even chance of its happening and, by inference, not unless that were so. In my respectful opinion that statement goes too far and restricts the meaning of the provision in a way which was not intended. I would prefer the less certain, albeit somewhat negative, approach adopted by Lord Greene M.R. in the Crown Bedding case (supra). It is true that the word was there used in conjunction with the word "might". But I do not believe that the word "could" which is the word used here is used in any different context.

11. In the course of my consideration of the matter I have considered whether or not the words in question do import, at least to a degree, the notion of likelihood or probability. Although at one stage I thought this was not the correct approach, a consideration of the dictionary definitions, to some of which I have referred, and, of what has been said in a number of authorities, has led me to the conclusion that some aspects of the concept of probability or likelihood, but short of a preponderance of probabilities, are imported. Unless they are, it is impossible to come to terms with the degree of certainty which the section requires before a document will be exempt from production. I think, however, that one has to be careful that one does not transfer the problem into another universe of discourse and move too far away from the words which the legislature has chosen to use; cf. Koufos v. Czarnikow Limited [1967] UKHL 4; (1969) 1 AC 350, per Lord Reid at p 390.

12. I do not myself feel able to derive from the presence of the word "reasonably" in the relevant expression a great deal of assistance. The difficulty is to give full weight to the meaning of the word "expected". It is only then that one can turn one's mind to the question of the significance of the qualification of it by the word "reasonably". The words are expressed in the passive voice - "could reasonably be expected". What is required is that the decision-maker act reasonably. For the document to be exempt his conduct must be taken to be that of the reasonable man. But then comes the difficulty. So acting, the decision-maker must expect that disclosure of the document could prejudice the future supply of information. In my opinion he will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply. But, stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.

13. I said earlier that, in my opinion, there was only one question of law which arose for decision in connection with the claim for exemption based on s.43. That question was whether the Tribunal erred in the statement of principle which it made in connection with the application of the provision to the facts before it. For reasons which I have given, I have reached the conclusion that it did fall into error. But if I had not, I would not have felt able to disturb its findings otherwise. If its statement of principle were correct, its other findings, being findings of fact, would not have been open to review by this Court.