Re Department of Industrial Relations v Brian M Forrest (In His Capacity As Deputy President of the Administrative Appeals Tribunal Constituted Under the Administrative Appeals Tribunal Act 1975) and Tony Burchill [1990] FCA 16 (2 February 1990)

FEDERAL COURT OF AUSTRALIA

Re: DEPARTMENT OF INDUSTRIAL RELATIONS
And: BRIAN M. FORREST (IN HIS CAPACITY AS DEPUTY PRESIDENT OF THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED UNDER THE ADMINISTRATIVE
APPEALS TRIBUNAL ACT 1975) and TONY BURCHILL
No. G156 of 1989
FED No. 17
Administrative Law
11 AAR 256/90 ALR 417

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Lockhart(2) and Hill(2) JJ.

CATCHWORDS

Administrative Law - Freedom of Information - review by Administrative Appeals Tribunal - Invalidity of conclusive certificate under Freedom of Information Act 1982 - nature of proceeding before Administrative Appeals Tribunal - whether public or in private.

Freedom of Information Act 1982 s.s. 4, 11, 34, 35, 55, 58(1), 58B, 58C, 58E, 61, 63, 64, 65

Administrative Decisions (Judicial Review) Act 1977 s.s. 5(1)(e), 5(2)(b),(g)

Administrative Appeals Tribunal Act 1975

HEARING

MELBOURNE
2:2:1990

Counsel for Applicant : Mr M.E.J. Black QC

Mr K. Bell

Solicitors for Applicant : Australian Government Solicitor

Counsel for Respondent : Mr A.G. Uren QC
Mr I. Turley

Solicitors for Respondent: Minter Ellison

ORDER

The decision of the Administrative Appeals Tribunal made pursuant to sub-section 58C(3) of the Freedom of Information Act 1982 and dated 15 March 1989 be set aside.

The respondent Tony Burchill pay the applicants costs.

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

DECISION

The essential issues raised by this application involve the consideration of the nature of some of the powers conferred upon the Administrative Appeals Tribunal ("the Tribunal") by the Freedom of Information Act 1982 ("the F.O.I. Act"). The particular issue involves the question of whether the Tribunal was in error in the way it exercised the power conferred upon it by sub-section 58C(3) of the F.O.I. Act, but the proper consideration of that question depends upon an understanding of other powers conferred upon the Tribunal by the F.O.I. Act as well as a brief reference to some of the provisions of the Administrative Appeals Tribunal Act 1975 ("the A.A.T. Act").

2. The Department of Industrial Relations ("the Department") brought this application pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") seeking an order of review in respect of a decision made by the Tribunal constituted by a Deputy President. Originally the application included a claim based upon s.39B of Judiciary Act 1903, but that claim was abandoned. The proceeding is within the original jurisdiction of this Court but the Chief Justice, pursuant to sub-section 20(1A) of the Federal Court of Australia Act 1976 directed that the matter be heard and determined by a Full Court exercising the original jurisdiction of the Court. The decision sought to be reviewed was made under sub-section 58C(3) of the F.O.I. Act. At the hearing of the application the Department relied upon the ground specified in paragraph 5(1)(e) of the Judicial Review Act namely that the making of the decision was an improper exercise of the power conferred by paragraph 58C(3) of the F.O.I. Act. In particular, the Department relied upon the grounds specified in paragraphs 5(2)(b) and (g) of the Judicial Review Act namely that the Tribunal failed to take a relevant consideration into account in the exercise of the power and that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power.

3. There appears to be no real dispute on the facts relevant to this application. By a request in writing dated 26 January 1988, the respondent Tony Burchill ("Burchill"), in his capacity as a journalist employed by David Syme and Co. Ltd., pursuant to s.15 of the F.O.I. Act sought access to a document of the Department which was and is an agency under the F.O.I. Act. The document access of which was sought, was described as the Commonwealth submission on parliamentary pay made to a private conference of the Remuneration Tribunal constituted under the Remuneration Tribunals Act 1973. There is no dispute that such a document is in existence, is in the custody of the Department and is a document of an agency within the meaning of the F.O.I. Act. Subsequently the document became identified as the Commonwealth Submission to the Anomalies Conference on Parliamentarian's Salaries. It appears also that such a conference was held by the Remuneration Tribunal in the presence of representatives of the Australian Council of Trade Unions, the Confederation of Australian Industry, the Commonwealth Government, the Government Parliamentary Caucus, and the Opposition respectively. The contents of the document were disclosed to those present at the conference.

4. Prima facie, under s.11 of the F.O.I. Act, Burchill had a statutory right to obtain access to the document. That section provides as follows:-

"11. Subject to this Act, every person has a legally
enforceable right to obtain access in accordance with
this Act to-
(a) a document of an agency, other than an exempt
document; or
(b) an official document of a Minister, other than
an exempt document.

5. Under sub-section 4(1) of the F.O.I. Act the phrase "exempt document" when used in that Act means, among other things not relevant to this application, "a document which, by virtue of a provision of Part IV, is an exempt document". By the same sub-section, the phrase "exempt matter" when used in that Act means "matter the inclusion of which in a document causes the document to be an exempt document".

6. Part IV of the F.O.I. Act is headed "Exempt Documents". The Part comprises sections 32 to 47 inclusive. A number of those sections make documents coming within specified classes of documents, exempt documents. For immediate purposes, the relevant section is s.34. That section contains a number of sub-sections, but for the purposes of this application, sub-sections 34(1) and (2) only need be set out:-

"34.(1) A document is an exempt document if it is-
(a) a document that has been submitted to the
Cabinet for its consideration or is proposed
by a Minister to be so submitted, being a
document that was brought into existence for
the purpose of submission for consideration
by the Cabinet.
(b) an official record of the Cabinet.
(c) a document that is a copy of, or of a part
of, or contains an extract from, a document
referred to in paragraph (a) or (b); or
(d) a document the disclosure of which would
involve the disclosure of any deliberation or
decision of the Cabinet, other than a
document by which a decision of the Cabinet
was officially published.
(1A) ...
(2) For the purpose of this Act, a certificate
signed by the Secretary to the Department of the
Prime Minister and Cabinet certifying that a document
is one of a kind referred to in a paragraph of
sub-section (1) establishes conclusively, subject to
the operation of Part VI, that it is an exempt
document of that kind.
(3) ..."

7. By letter dated 17 May 1988, the Department informed Burchill the document was an exempt document under sections 34, 36 and 40 of the F.O.I. Act. Mr Burchill sought an internal review of that decision under s.54 of the F.O.I. Act but the Department, on internal review, made a decision refusing access to the document on the ground that the document was an exempt document. The Department on internal review claimed that the document was an exempt document since it was a document which came within a number of the classes specified in Part IV and in particular sections 34, 36 and 40 of the F.O.I. Act. This decision included a claim under s.40 which had not been made in the original decision. By application dated 5 August 1988, Burchill sought a review under the A.A.T. Act of that decision on internal review.

8. Part VI of the F.O.I. Act is headed "Review of Decisions". It comprises sections 53 to 66 inclusive. Reference has been made already to s.54 which makes provision for the internal review of a decision refusing to grant access to a document. Section 55 makes provision for review by the Tribunal. The parts of sub-section 55(1) relevant to this proceeding are set out:-

"55.(1) Subject to this section, an application may
be made to the Administrative Appeals Tribunal for
review of-
(a) a decision refusing to grant access to a
document in accordance with a request ...".

9. Under sub-section 55(2), before an application for a review of a decision of the type referred to in paragraph 55(1)(a), being the type of decision the subject of this application, can be made, there must have been an internal review under s.54, but see sub-section 54(3) which applies where there has been undue delay. In the present case, there had been a review under s.54.

10. The F.O.I. Act makes provision for two distinct types of proceedings where an application is made to the Tribunal under s.55 of the F.O.I. Act for the review of a decision. In one type of proceeding, the Tribunal is required to exercise the powers of the agency which claimed that the document is an exempt document and to determine whether the document is an exempt document. The other type of proceeding is to be followed where a conclusive certificate has been given under a provision of the F.O.I. Act such as s.34 or one of a number of other sections of that Act which provide for the giving of a similar type of certificate. In this type of proceeding the Tribunal has the power to determine the question of whether there exist reasonable grounds for the claim that the document is an exempt document. The Tribunal does not exercise the powers of the agency which claimed that the document was an exempt document. The results flowing from the decision made by the Tribunal in the two different types of proceedings are themselves different. In the former, the decision of the Tribunal is either that the document is an exempt document or that the document is not an exempt document in which case access to the document is to be given. In the latter, the decision of the Tribunal is whether there exist reasonable grounds for the claim that the document is an exempt document. If the Tribunal decides that reasonable grounds so exist, nothing further is to be done. The document is an exempt document. If the Tribunal decides that reasonable grounds do not so exist, the appropriate Minister must, within a specified time, either revoke the certificate or not revoke the certificate. Where the certificate is revoked, the claim that the document is an exempt document shall be taken to have been withdrawn and access is to be given. Where the certificate is not revoked, the Minister must give notice to the person requesting access and give notice to each House of Parliament of specified matters. The procedures to be followed after a decision is made by the Tribunal whether reasonable grounds exist for the giving of a certificate are set out in s.58A of the F.O.I. Act and need not be referred to in detail at this stage.

11. In the present case, on 5 August 1988, Burchill made application to the Tribunal under s.55 of the F.O.I. Act for a review on the decision made by the Department that the document was an exempt document. The application included also a claim for a wider class of documents but that claim does not affect this case. The application also included a claim with respect to a levy paid by Burchill but this claim is not relevant to this case. On 21 October, being before the application by Burchill came on for hearing before the Tribunal, the Secretary to the Department of the Prime Minister and Cabinet signed a certificate pursuant to s.34 of the F.O.I. Act. The certificate was as follows:-

"FREEDOM OF INFORMATION ACT
CERTIFICATE UNDER SUB-SECTION 34(2)
I, MICHAEL HENRY CODD, Secretary to the Department of
the Prime Minister and Cabinet, hereby certify
pursuant to sub-section 34(2) of the Freedom of
Information Act 1982 that the Commonwealth Submission
to the Anomalies Conference on Parliamentarian's
Salaries (held on Department of Industrial Relations
file A87/1170) is a document of a kind referred to in
paragraphs 34(1)(c) and 34(1)(d) of that Act.
Attached hereto is a schedule identifying the parts
of the document in relation to which this certificate
is given."

The schedule described those parts of the document which, it was claimed, contained exempt matters which, it was claimed, made the document an exempt document.

12. Reference must be made to the procedures to be followed by the Tribunal in hearing and determining the application made to it by Burchill.

13. The application for review was in a form which required the Tribunal to observe the first type of procedures referred to in these reasons. The giving of the conclusive certificate under s.34 of the F.O.I. Act changed the nature of the procedures to be adopted by the Tribunal if Burchill requested that the Tribunal determine the question whether there existed reasonable grounds for the claim that the document was an exempt document under s.34. On this question, the Tribunal was required to observe the second type of procedure referred to in these reasons. Nevertheless, the claims arising under sections 36 and 40 remained to be considered by the Tribunal in conformity with the first type of procedure.

14. Under sub-section 58(1), in proceedings under Part VI of the F.O.I. Act, the Tribunal has the power to review the decision made by the agency and to decide any matter in relation to the request for access to a document that could have been made or declared by the agency "and any decision of the Tribunal under this section has the same effect as a decision of the agency." This essentially is the first type of proceeding referred to above. The F.O.I. Act makes no specific provision with respect to the constitution of the Tribunal to hear and determine requests pursuant to this type of proceeding.

15. Sub-section 58(3) of the F.O.I. Act is set out in full:-

"(3) Where there is in force in respect of a
document a certificate under section 33, 33A, 34, 35
or 36, the powers of the Tribunal do not extend to
reviewing the decision to give the certificate, but
the Tribunal, constituted in accordance with section
58B, may determine such question in relation to that
certificate as is provided for in whichever of
sub-sections (4), (5) and (5A) applies in relation
to that certificate."

16. This sub-section makes it clear that in the present case the Tribunal does not have power to review the decision of the Secretary to the Department of the Prime Minister and Cabinet to give the certificate under s.34, but the request to review the decision by the Department that the document is an exempt document remains in existence. Sub-section 58(4) confers a power on the Tribunal where such a certificate has been given to determine the question whether there exist reasonable grounds for the claim that the document is an exempt document under s.34. As will appear later, the Tribunal must be constituted in a particular manner to determine this question. Sub-section 58(4) is set out in full:-

"58.(4) Where application is or has been made to the
Tribunal for the review of a decision refusing to
grant access to a document in accordance with a
request, being a document that is claimed to be an
exempt document under section 33, 33A, 34 or 35 and in
respect of which a certificate (other than a
certificate of a kind referred to in sub-section (5A))
is in force under that section, the Tribunal shall, if
the applicant so requests, determine the question
whether there exist reasonable grounds for that
claim."

17. It is important to note the nature of the power conferred by sub-section 58(4). It is different in nature to the power conferred by sub-section 58(1). The decision by the Tribunal does not have the same effect as the decision of the agency. The power conferred by s.58(4) is a power to determine a question between disputing parties. The nature of the power so conferred will be raised later in these reasons.

18. Before considering the specific provisions of the F.O.I. Act relating to requests made under s.58(4), a brief reference is made to some of the provisions of the A.A.T. Act relating to proceedings before the Tribunal. Unless specifically excluded, those provisions would apply with respect to the hearing of the request the subject of this case. Under s.32 of the A.A.T. Act at a hearing before the Tribunal, a party may appear in person or may be represented by some other person. Thus a party may be represented by a barrister and solicitor. Under s.35, normally the hearing of a proceeding before the Tribunal is in public. This means that any person has the right to attend a hearing. Under that section, the Tribunal has a power, by order, to direct that the hearing or part of a hearing shall take place in private. In these circumstances, to give effect to the direction that the hearing shall be in private, the Tribunal has power to "give directions as to the persons who may be present". Further, the Tribunal has power to make orders prohibiting or restricting the publication of evidence or other material given to the Tribunal particularly where the hearing is in private.

19. The special provisions of the F.O.I. Act applying to proceedings where the Tribunal is considering the question of whether there exist reasonable grounds for a claim that a document is an exempt document commences with s.58A. The substance of that section is that where "the Tribunal determines that there do not exist reasonable grounds for the claim to which the question relates", the appropriate Minister, in the present case the Prime Minister, is required within 28 days after the determination is communicated to him to "make a decision to revoke the certificate or not to revoke the certificate". Where the Minister makes a decision to revoke the certificate, in matters under s.34, "the claim that the document to which the certificate relates is an exempt document shall be taken, for the purposes of this Act, to have been withdrawn". Where the Minister makes a decision not to revoke the certificate, he is required to give notice of his decision to the person seeking access and table a copy of the notice in Parliament together with a statement of his findings in conformity with sub-section 58A(2). Presumably, if the certificate is not revoked, it remains conclusive evidence that the document is an exempt document and the Tribunal has no power to determine what decision it would have made on the application to review the decision made by the agency.

20. Section 58B of the F.O.I. Act contains provisions relating to the constitution of the Tribunal hearing requests under sub-sections 58(4), (5) or (5A). The Tribunal must be constituted by three presidential members or a presidential member alone with consequential provisions not relevant for present purposes.

21. Section 58C is of crucial importance in this case. Sub-section 58C(1) provides that the section has effect notwithstanding anything contained in the A.A.T. Act. Under sub-section 58C(2) the hearing of a proceeding referred to in sub-section 58B(1), which includes the hearing before the Tribunal in the present case, must in certain circumstances be heard in private but the other parts shall be held in public unless the Tribunal otherwise orders under sub-section 58C(4). That sub-section is similar to the powers conferred by s.35 of the A.A.T. Act. The parts of sub-section 58C(2) relevant to this case are set out:-

"58C.(2) At the hearing of a proceeding referred to
in sub-section 58B(1), the Tribunal-
(a) shall hold in private the hearing of any
part of the proceeding during which evidence
or information is given, or a document is
produced, to the Tribunal by-
(i) an agency or an officer of an agency;
(ii) ...
or during which a submission is made to the
Tribunal by or on behalf of an agency ...,
being a submission in relation to the claim-
(iv) in the case of a document in respect
of which there is in force a
certificate under ... section 34 ...
that the document is an exempt
document;
(v) ...
(b) subject to sub-section (4), shall hold the
hearing of any other part of the proceeding
in public."

22. The decision by the Tribunal sought to be reviewed in this proceeding was made under sub-section 58C(3). That sub-section prescribes the method by which effect is given to the mandatory provisions of sub-section 58C(2). In order to give effect to sub-section 58C(2), where one of the specified conditions is about to occur, the Tribunal is required to ensure that the hearing is held in private. The Tribunal is required, by order, to give directions as to who shall be present at the private hearing and must make consequential orders prohibiting the publication of material presented at the private hearing. Sub-section 58C(3) is set out in full:-

"(3) Where the hearing of any part of a
proceeding is held in private in accordance with
sub-section (2), the Tribunal-
(a) may, by order, give directions as to the
persons who may be present at that hearing;
and
(b) shall give directions prohibiting the
publication of-
(i) any evidence or information given to
the Tribunal;
(ii) the contents of any documents lodged
with, or received in evidence by, the
Tribunal; and
(iii) any submission made to the Tribunal,
at that hearing."

23. Before coming back to this sub-section, a reference to some other provisions of the F.O.I. Act should be made. Section 58E appears to support a policy that in determining a question under s.58(4), the Tribunal should not look at the document which is claimed to be an exempt document except as a last resort where it is not satisfied, by evidence or otherwise, that there exist reasonable grounds for the claim to which the question relates. After doing that, presumably if the Tribunal is still not satisfied, it determines under sub-section 58A(1) that there do not exist reasonable grounds for the claim to which the question relates. The whole of s.58E is set out:-

"58E.(1) In any proceedings before the Tribunal under
this Act in relation to a document in respect of which
there is in force a certificate under section 33, 33A,
34, 35 or 36, the Tribunal is entitled to require the
production of the document in accordance with this
section and not otherwise.
(2) Where, in considering a question referred to
in sub-section 58(4), (5) or (5A) in relation to a
document, the Tribunal is not satisfied, by evidence
on affidavit or otherwise, that there exist reasonable
grounds for the claim to which the question relates,
the Tribunal may require the document to be produced
for inspection by the Tribunal as constituted for the
purposes of the proceeding.
(3) After an inspection under this section the
Tribunal shall return the document to the person by
whom it was produced without permitting any person who
is not a member of the Tribunal as constituted for the
purposes of the proceeding, or a member of the staff
of the Tribunal in the course of the performance of
his duties as a member of that staff, to have access
to the document or disclosing the contents of the
document to any such person."

24. Section 64 of the F.O.I. Act contains comparable provisions with respect to procedures to be followed where the Tribunal is, pursuant to s.58, reviewing a decision where no conclusive certificate has been given. Under s.64(1) an agency is not required to file with the Tribunal the exempt document and provides "if the Tribunal is not satisfied, by evidence or affidavit or otherwise, that the document is an exempt document it may require the document to be produced for inspection by members of the Tribunal only and if, upon inspection, the Tribunal is satisfied that the document is an exempt document, the Tribunal shall return the document to the person by whom it was produced without permitting any person other than a member of the Tribunal as constituted for the purposes of the proceeding to have access to the document". The provision then contains consequential provisions giving effect to that provision.

25. In the present case, the hearing before the Tribunal commenced on 14 March 1989. The Department, which was the respondent in the proceedings before the Tribunal, accepted that under s.61 of the F.O.I. Act it had the onus of establishing its case. In accordance with that concession, counsel for the Department opened his case and called evidence both by affidavit and orally from witnesses being officers of an agency. One was an officer of the Department. The other was an officer from the Department of the Prime Minister and Cabinet. This evidence was directed to all claims that the document was an exempt document as well as to the question whether there existed reasonable grounds for the granting of the certificate under s.34. Under sub-section 58C(2) that evidence should have been given in a private hearing. More importantly, the Tribunal should have made orders under sub-section 58C(3) to give effect to the requirements of sub-section 58C(2). In its context, the word "may" appearing at the beginning of paragraph 58C(3)(a) is a classical example of where the word "may" imposes a duty. It imposes a duty on the Tribunal to give effect to the mandatory provisions of sub-section 58C(2). In the well known authority of Julius v Bishop of Oxford (1880) 5 App Cas 214 the House of Lords expressed the view that enabling words are treated as being mandatory where they are words to effectuate a legal right. In paragraph 58C(3)(a) the word "may" must be construed as imposing a duty on the Tribunal to give directions as to the persons who may be present at a part of a hearing coming with sub-section 58C(2) and the Tribunal must give the consequential directions provided for by paragraph 58C(3)(b). Unless this is done, the mandatory provisions of sub-section 58C(2) are nullified. The principle is expressed clearly by Jarvis C.J. in Macdougal v Paterson [1851] EngR 970; (1851) 11 CB 755 at 766 as follows:-

"The word "may" is merely used to confer the
authority: and the authority must be exercised, if
the circumstances are such as to call for its exercise."

26. A number of the more recent authorities on this question are discussed in Bowling v General Motors-Holden's Pty. Ltd. [1980] FCA 143; (1980) 50 FLR 79 at pp 90-94.

27. On 15 March 1989, during the course of the hearing before the Tribunal, counsel for the Department announced that he desired "to take evidence in private session" and that under sub-section 58C(3) of the F.O.I. Act an order should be made that the only persons to be present be "the respondent's counsel, his (sic) legal advisers and officers of the court (sic) and that Mr Burchill and persons assisting him, his counsel and his legal advisers not be present during the giving of that evidence." After hearing submissions, the Tribunal said:-

"What I propose to do in this case is to make an
order that Mr Turley's client (Burchill) and any
witnesses and advisers other than his legal advisers
be excluded from the hearing and that a publication
disclosure order also will be made. It will be made
in these terms: Pursuant to section 58C(3) the
order will be that the applicant and any witnesses
on behalf of the appliant and advisers, save and
except his legal advisers, be excluded from the
hearing of the application until otherwise directed
by the Tribunal.
Further, I order that the publication and disclosure
to any person, including the applicant, of any
evidence, the contents of any document lodged with
the tribunal or received in evidence and any
submissions made to the tribunal during any part of
the hearing held in private shall be prohibited."

28. Thereafter, counsel for the Department announced that the agency intended to review that decision and sought reasons in writing for that decision. The further hearing before the Tribunal was adjourned to a day to be fixed. The formal decision and reasons for decision are dated 15 March 1989 but must have been published after that date. The formal decision was as follows:-

"Pursuant to the provisions of s.58C(3) of the
Freedom of Information Act 1982:
It is ordered that the applicant, his witnesses and
advisors save and except his counsel and instructing
solicitor be excluded from the hearing of the
application until otherwise directed by the Tribunal
and
I Direct that the publication of and disclosure of
any evidence, the content of any document lodged
with the Tribunal or received in evidence and any
submissions made to the Tribunal during that part of
the hearing held in private shall be prohibited.

29. It is apparent that the first part of this order is not in conformity with the provisions of section 58C of the F.O.I. Act. The hearing should have been in private by reason of sub-section 58C(2) while the evidence was being given by officers of an agency. Much of the evidence given at the public hearing was relevant to the proceedings under s.58C(2). An order under paragraph 58C(3)(a) should have given directions as to the persons who may be present at the hearing in private. The order made does not do that. The issue raised at the hearing before the Court was directed to the proper matters to be taken into account in exercising the discretion conferred on the Tribunal when performing the duty conferred by paragraph 58C(3)(a) but it seems that although that paragraph was referred to, the power exercised was based on some other provision.

30. At the hearing before this Court, attention was directed to the form of certificate given by the Secretary to the Department of the Prime Minister and Cabinet on 20 October 1988 and the Court raised the question whether the certificate satisfied the requirements of s.34 of the F.O.I. Act. The certificate states that the document which is claimed to be an exempt document "is a document of a kind referred to in paragraphs 34(1)(c) and 34(1)(d) of that Act". On its face, this description is so wide as to be almost meaningless. Further the document was prepared for presentation at a conference attended by a wide range of persons including representatives from those bodies referred to earlier in these reasons as well as the Remuneration Tribunal. This fact might well be a factor suggesting there existed no reasonable grounds for the claim that the document was an exempt document under s.34 but this does not deny the fact that the document may be an exempt document under other sections of the F.O.I. Act. That conference may well have been in confidence, whatever that may mean, but the powers of the Tribunal to make orders under s.58C(3)(b) of the F.O.I. Act would be no less effective. None of the parties to this case sought to challenge the validity of the certificate. The parties were prepared to accept that the certificate could be read as being based on paragraph 34(1)(d). In any event, a further certificate could be given rectifying any defect. In these circumstances, I do not express any view on this question. However, a warning is given. Having regard to the consequences resulting from a conclusive certificate given under Part IV of the F.O.I. Act, great care should be given to the question of whether a certificate should be given, the form of a certificate and whether it specifies clearly the basis on which it is claimed a document is an exempt document. Further, it is noted that the Department claims also that the document is an exempt document under other provisions contained in Part IV of the Act, but under s.34, the claim is that the document is "a document the disclosure of which would involve the discloure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published". The claims based on the other sections of the F.O.I. Act are still pending before the Tribunal.

31. The decision sought to be reviewed is said to have been made under paragraph 58C(3)(a) of the F.O.I. Act. That power is to be contrasted with the power conferred by sub-section 58C(4). That sub-section empowers the Tribunal where it "is satisfied that it is desirable to do so by reason of the confidential nature of any evidence, information or matter or for any other reason" by order to direct that the hearing of a part of the proceeding under s.58B(1) that "but for this sub-section, would be held in public" take place in private. Other provisions of the sub-section enable the Tribunal to give effect to such a direction. On its face, this is a power commonly conferred upon tribunals, including courts, but has no application where the proceeding is being conducted in private under sub-section 58C(2). One of the conditions precedent to the exercise of the power conferred by s.58C(4) is that the proceeding would otherwise be in public; compare paragraph 58C(2(a).

32. Another power is conferred by s.63 of the F.O.I. Act which on its face, appears to enable the Tribunal to proceed in the absence of an applicant under Part VI of the Act as well as the legal representations of the applicant. This power appears to be given to the Tribunal when hearing an application in private under sub-section 58C(2) and in cases where an order has been made under paragraph 58C(3)(a) allowing an applicant and his legal representatives to be present. The whole of s.63 is set out but the crucial part is contained in paragraph 63(2)(b):-

"63(1) In proceedings under this Part, the Tribunal
shall make such order or orders under sub-section
35(2) of the Administrative Appeals Tribunal Act 1975
as it thinks necessary having regard to the nature of
the proceedings and, in particular, to the necessity
of avoiding the disclosure to the applicant of-
(a) exempt matter contained in a document to
which the proceedings relate; or
(b) information of the kind referred to in
sub-section 25(1).
(2) Notwithstanding anything contained in the
Administrative Appeals Tribunal Act 1975-
(a) the Tribunal shall not, in its decision, or
reasons for a decision, in a matter arising
under this Act, include any matter or
information of a kind referred to in
sub-section (1); and
(b) the Tribunal may receive evidence, or hear
argument, in the absence of the applicant or
his representative where it is necessary to
do so in order to prevent the disclosure to
the applicant of matter or information of a
kind referred to in sub-section (1)."

33. It is noted that sub-section 35(2) of the A.A.T. Act enables the Tribunal to order proceedings before it to be in private where it "is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason". This phraseology may be compared with that contained in paragraph 58C(4) of the F.O.I. Act. Sub-section 63(1) requires the Tribunal to make such an order where the conditions specified in that sub-section are satisfied. Section 28 of the F.O.I. Act relates to cases where there is a question of whether a particular document exists or not. Paragraph 63(2)(b) appears to have general application and seems to be complementary to, among other provisions, paragraph 58C(3)(a).

34. In the present case, the Tribunal appears to have proceeded in error. Much of the proceedings before it on 14 and 15 March 1989 should have been held in private by reason of paragraphs 58C(2) of the F.O.I. Act but no orders had been made under sub-section 58C(3) to implement the statutory requirement. Mr Burchill and his legal representatives were present before the Tribunal. It was only when, on 15 March 1989, counsel for the Department desired to lead evidence on matters which were claimed to be exempt matters in the document claimed to be an exempt document, that the Tribunal heard argument and made an order under sub-section 58C(3). The order made was inappropriate for the purpose since the hearing should have been in private. In the circumstances it might have been appropriate to have made an order under paragraph 63(2)(b) but that matter was not argued before the Tribunal. If an order is made under that paragraph, there is no need to make any consequential order prohibiting publication of material presented to the Tribunal. First, such an order should have been made at an earlier stage under sub-section 58C(3). Secondly, neither Mr Burchill nor his legal representatives would have been at the hearing when that matter was disclosed. The representatives from the Department were constrained by other restrictions on disclosure of information.

35. The power of the Tribunal to make orders under paragraph 63(2)(b) of the F.O.I. Act was not raised during the hearing before this Court. In the course of submissions counsel for the parties asserted that a department was free to disclose exempt matters despite the prohibition against producing exempt documents to the Tribunal except for the limited purposes prescribed in sections 58E and 64 of the F.O.I. Act. On the facts of this case the Court should not express any final opinion on this question.

36. The proceeding before the Tribunal was complicated by the fact that the Department was seeking to establish that the document was an exempt document under a number of other sections of the F.O.I. Act. In addition to s.34, it was relying on sections 36 and 40. Of these sections provision is made in s.36 for the giving of a conclusive certificate with respect to one aspect of a claim but no such certificate appears to have been given, or if given no request appears to have been made under sub-section 58(4) with respect to it. It follows that those parts of the proceeding before the Tribunal in which the Department sought to rely upon sections 36 and 40 were being conducted under s.58(1). Those parts of the proceedings normally should have been heard in public. The question to be determined by the Tribunal with respect to those matters was whether the document was an exempt document within the meaning of any of those sections. This question is different to the question to be decided with respect to the claim based upon s.34 where the conclusive certificate had been given. The claims were being heard together. Insofar as the evidence given on 14 and 15 March 1989 was given by officers of an agency, it should have been given at a private hearing as required by sub-section 58C(2) but otherwise the same evidence should have been given at a public hearing unless orders to the contrary had been made. In any event, the provisions of s.63 apply to each part of the proceeding. Complications could arise. In theory, the Tribunal could find that the document is not an exempt document under s.36 or s.40 of the F.O.I. Act and that there existed no reasonable grounds for the claim that the document was an exempt document under s.34. In these circumstances, presumably the Prime Minister would be required to exercise the discretion conferred upon him by sub-section 58A of the F.O.I. Act.

37. The fact that all claims before the Tribunal were being heard together complicated the matter but the issue raised with respect to the order made under sub-section 58C(3) remains.

38. In all the circumstances of this case, I should not express any views on the substantive issues raised by the application under the Judicial Review Act insofar as they relate to the claim under s.58(4) of the F.O.I. Act. The Tribunal was in error in purporting to exercise the power conferred by sub-section 58C(3). It was led into this error by the way counsel for the Department sought an order under that sub-section. Counsel for Burchill did not attempt to correct the erroneous basis on which the order was being sought. Any views expressed by the Court on the matters to be considered in exercising a power under paragraph 63(2)(b) or any other section of the F.O.I. Act would be obiter and in the nature of an advisory opinion.

39. In the result the application should be granted. The order of the Tribunal made on 15 March 1989 should be set aside. The Tribunal would then be able to proceed with the hearing pending before it and make appropriate orders. There should be no order as to costs of this application.

40. Before concluding these reasons, reference should be made to the nature of the power conferred upon the Tribunal by sub-section 58(4) of the F.O.I. Act. The power is to determine the question of whether there are reasonable grounds for the making of a claim that a document is an exempt document. If a determination is made in the affirmative, the consequences prescribed by s.58A follow. This power has many similarities to the judicial power of the Commonwealth, a power which, according to existing authority, can be exercised by courts only. This can be illustrated by the power conferred upon a court by s.140 of the Conciliation and Arbitration Act 1904, the equivalent power now being contained in s.208 of the Industrial Relations Act 1988. Under sub-section 140(5D) of the Conciliation and Arbitration Act the Federal Court has power to make a declaration that the rules of an organization contravene sub-section 140(1) in a specified respect. Common contraventions allegedly arise under sub-section 140(1) namely that the rules are contrary to or fail to make a provision required by a provision of the Act or regulations made under the Act. Where such a declaration is made the Act prescribes the consequences. Thus under sub-section 140(7) where, afer a specified time, the organization has not amended its rules to bring them into conformity with the Act or regulations, the Industrial Registrar has power to make the requisite rules. Similar provisions of the Act apply with respect to other provisions of the Act, namely where a declaration is made, the Act prescribes the consequences that follow; e.g. sub-section 140(5G).

41. The power to make declarations of this kind have always been treated as a judicial power. In reality, there is no difference in nature between a declaration made by a Court under provisions of that kind and a determination made by the Tribunal under sub-section 58(4) of the F.O.I. Act. This matter was not raised at the hearing of this case, but a question may arise as to the validity of the power conferred upon the Tribunal by s.58(4) of the F.O.I. Act.

42. Further, there is much to be said for the view that it is not appropriate for the Tribunal to exercise the power conferred by s.58(1) and the power conferred by s.58(4) concurrently. This is so particularly on the facts of this case where an identified document is the subject of the dispute. The difficulties arising from a concurrent hearing can be illustrated by a reference to the following matters:-

(a) different issues to be decided;
(b) different procedures to be followed;
(c) different powers to be exercised;
(d) different decisions to be made;
(e) different results resulting from decisions
given; and
(f) the political discretion conferred on the
Minister irrespective of the decision made
under s.58(4).

43. In theory an agency could claim exemption under a number of the sections contained in Part IV of the F.O.I. Act. In theory, no problems would arise in the Tribunal hearing all those claims concurrently. The difficulties referred to above would not arise. Where a conclusive certificate is given with respect to a claim based upon a particular exemption, a new and different situation is brought into existence. No matter what the Tribunal might decide in the exercise of the power under s.58(1) with respect to a particular document, a decision under the power conferred by s.58(4) must take precedence with the ultimate decision being taken by the Minister.

44. As a result of these incompatible matters, a warning is given that where access is sought of an identified document and the agency claims an exemption, the agency should make an election either to:-

(a) claim exemption under one or more of the
sections; or
(b) seek to obtain a conclusive certificate with
respect to one or more of the sections where
provision is made for the giving of such a
certificate.

45. If a decision is made to rely on the course described in paragraph (b), that course should be the only course to be adopted. If the Minister feels strongly enough, the document remains an exempt document even if the Tribunal decides the certificate was given without reasonable grounds. Political consequences follow. Exemption under other sections is irrelevant.

46. Special considerations apply with respect to a certificate given under s.36(3). Such a certificate goes to part only of an exemption. A certificate given under that sub-section is not included in the class of matter referred to in s.58(4) but comes with s.58(5) where a similar procedure is prescribed but sub-section 36(3) is not referred to in s.58A(2).

47. Further the question of onus may be of importance. In proceedings where the Tribunal is exercising the power conferred by s.58(4) of the F.O.I. Act, the hearing is in private when the matters referred to in s.58C(2) are being presented, unless directions are given under s.58C(3). Prima facie, therefore, the hearing must be in private. No question of natural justice arises. Directions should be given only when the material before the Tribunal justifies a departure from the statutory requirement. Thus, it is difficult to visualise what would justify the giving of a direction with respect to an applicant. Likewise, with respect to the agent, whether a lawyer or not, acting on behalf of an applicant. In proceedings where the Tribunal is exercising the power conferred by s.58(1), different considerations apply. The proceedings are in public. The applicant and the legal advisers of the applicant have a statutory right to be present at those proceedings unless an order is made to the contrary; see s.35(2) of the A.A.T. Act and s.63 of the F.O.I. Act. Compare s.58C(4) and s.58C(2)(b).

48. In the present case, the Tribunal appears to have misapplied the provisions of s.58C(3)(a). In its reasons, after stating the relevant facts, the Tribunal said:-

"At the point in the proceedings when Mr. Bell
(counsel for the Department) said he proposed to
lead evidence from Mr. Templeton about the nature
and detail of cabinet deliberations, the process of
decision making, the decision itself and the
recording of it by Cabinet he sought an order under
s.58C(3) that the applicant's counsel and
instructing solicitor as well as the applicant and
any other of his advisers be excluded from the
private hearing. Mr. Turley (counsel for Burchill)
opposed the application and submitted the applicant
as well as himself and his instructing solicitor
should be permitted to remain."

49. The Tribunal rejected a submission that Burchill be present and concentrated on whether his legal advisers should be permitted to be present. The Tribunal referred to s.58C of the F.O.I. Act, and continued:-

"To decide the question whether reasonable grounds
exist for the respondent's (the Department's) claim
requires the matter be fully argued. Quite apart
from the considerations I take into account in
particular the category of the exemption claimed I
think it would inevitably flow from the course
requested by the respondent that counsel for the
applicant would not be in a position by submission
or otherwise to properly assist the Tribunal in its
function. Counsel and solicitor for the applicant
(Burchill) can only be of real assistance if aware
of the evidence to enable that evidence and any
submissions on behalf of the respondent to be
critically reviewed. That to my mind is a powerful
consideration to be considered by the Tribunal in
the exercise of its discretion in giving effect to
the procedural requirement of s.58C(3) of the FOI
Act and outweighs the argument based on the content
of the evidence the respondent proposed to lead.
... In my opinion the exclusion of the applicant
from the private hearing and the order made and
directions given is sufficient safeguard for the
confidentiality requirements of the FOI Act in the
circumstance of this application."

50. This approach is based upon a misunderstanding of s.58C(2)(b) and (3)(a) of the F.O.I. Act. On this basis, the legal advisers should always be permitted to be present and this cannot be correct.

This is an application for review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The application was heard by a Full Court of the Court following a direction given by the Chief Justice pursuant to sub-s. 20(1A) of the Federal Court of Australia Act 1976. The application was made by the Department of Industrial Relations for a review of the decision of the first respondent, Brian M. Forrest, a Deputy President of the Administrative Appeals Tribunal, made pursuant to sub-s. 58C(3) of the Freedom of Information Act 1982 ("the FOI Act") on 15 March 1989 in the course of a proceeding before the Tribunal. The decision of the Deputy President was in these terms:

"It is ordered that the applicant, his witnesses
and advisers save and except his counsel and
instructing solicitor be excluded from the hearing
of the application until otherwise directed by the
Tribunal and
I Direct that the publication of and disclosure of
any evidence, the content of any document lodged
with the Tribunal or received in evidence and any
submissions made to the Tribunal during that part
of the hearing held in private shall be prohibited."

2. The person described as the "applicant" in the order is the second respondent to the proceedings before this Court, Mr. Tony Burchill, who is a journalist employed by "The Age" newspaper.

3. On 29 September 1987 the then Minister for Industrial Relations wrote to the Chairman of the Remuneration Tribunal proposing that the Remuneration Tribunal, before finalising its 1987 report, hold a conference similar to the Anomalies Conference convened by the President of the Conciliation and Arbitration Commission, for the purpose of considering whether special or extraordinary circumstances existed which would justify consideration of the anomaly in parliamentary salaries as found by the Remuneration Tribunal in its 1984 and 1986 reports. The Minister in his letter proposed that the Australian Council of Trade Unions ("the ACTU"), the Confederation of Australian Industry ("the CAI"), the Federal Government, a representative of the Federal Parliamentary Caucus and a Parliamentary representative of the Opposition be invited to participate in the conference. The conference was held on 19 November 1987 and was attended by representatives of the ACTU, the CAI and officers of the Federal Department of Industrial Relations ("the Department"). The Federal Government made a submission in writing to the Anomalies Conference with respect to the remuneration of parliamentarians ("the Remuneration Submission"); it is this document which led to these proceedings.

4. By letter dated 14 March 1988 to the Department Mr. Burchill requested under the FOI Act access to "documents which show the Commonwealth's Submission on Parliamentary pay to a private conference of the Remuneration Tribunal called by the Federal Government". The reference to "a private conference" is to the Anomalies Conference mentioned above.

5. On 17 May 1988 an officer of the Department decided that the only document relevant to the request was the Remuneration Submission. The officer denied Mr. Burchill access to it on the ground that it was exempt from mandatory disclosure under paras. 34(1)(d), 36(1)(a) and 40(1)(d) of the FOI Act. The main reasons for the decision were said to be that disclosure of the Remuneration Submission would:-
. disclose a decision of the Cabinet which had not been officially published (para. 34(1)(d));
. disclose internal working documents of the Cabinet falling within the description of documents contained in para. 36(1)(a) of the FOI Act; and
. seriously undermine the capacity of the Remuneration Tribunal and the Commonwealth to conduct and participate in Anomalies Conferences and thus fall within para. 40(1)(d) of the FOI Act.

6. Mr. Burchill then requested internal review of the decision of the officer of the Department; the internal review was conducted by another officer of the Department who affirmed the earlier decision of the other officer and denied Mr. Burchill access to the Remuneration Submission on four grounds, three of which are those mentioned above; the fourth ground adds nothing relevant for present purposes.

7. The Tribunal subsequently received from Mr. Burchill an application for review of the decisions of the two officers concerned. The Tribunal then commenced a review of those decisions pursuant to s. 58 of the FOI Act to which reference shall be made later. The proceedings for review before the Tribunal were commenced by the filing of an application on 5 August 1988. The hearing before the Tribunal was held in March 1989.

8. In the meantime, on 20 October 1988, Mr. M.H. Codd, the Secretary to the Department of the Prime Minister and Cabinet, signed a certificate purporting to be issued pursuant to s. 34 of the FOI Act in these terms:

"I, MICHAEL HENRY CODD, Secretary to the Department
of the Prime Minister and Cabinet, hereby certify
pursuant to sub-section 34(2) of the Freedom of
Information Act 1982 that the Commonwealth
Submission to the Anomalies Conference on
Parliamentarian's Salaries (held on Department of
Industrial Relations file A87/1170) is a document
of a kind referred to in paragraphs 34(1)(c) and
34(1)(d) of that Act. Attached hereto is a
schedule identifying the parts of the document in
relation to which this certificate is given.
M.H. Codd
Secretary
20 Oct 1988"

9. There is a schedule to this certificate of Mr. Codd containing two pages which under various headings identifies particular parts of the Remuneration Submission in relation to which the certificate was given.

10. The evidence before the Tribunal included an affidavit of John William Templeton, the Director of the Cabinet Office in the Department of Prime Minister and Cabinet, sworn on 10 March 1989 which, so far as relevant, reads as follows:

"4. The decision to make a submission to the
Remuneration Tribunal was made by Cabinet on
17 November 1987. I was present when the
decision was made. It is recorded in Cabinet
Minute No. 10499. The deliberations of
Cabinet were detailed and had regard to the
complexity and sensitive nature of the issues.
The decision to authorise the submission was
similarly detailed, and the submission itself
reflects this. It follows the Cabinet
decision in terms of the detail of that
decision, and amplifies the key points of the
decision consistent with the deliberations of
Cabinet that preceded it. To release the
submission would reveal the decision and
deliberations. Neither the decision nor the
deliberations have been made public.
5. The submission actually contains extracts from
Cabinet Minute No. 10499. This reflects the
close correspondence between the decision and
deliberations of Cabinet and the submission
and also reflects that the submission was
prepared within a very short time after the
decision. The Cabinet meeting was on 17
November 1987 and the anomalies conference was
on 19 November 1987. The extracts concerned
are not purely factual material but represent
Cabinet's views as to the past and future
process with respect to the issue of Parliamentary
pay and also represent a negotiating position."

11. Counsel for the Department told the Tribunal that he proposed to lead evidence from Mr. Templeton about the nature and detail of Cabinet deliberations, the process of decision-making, the decision itself and the recording of it by Cabinet. It is common ground that the evidence which counsel for the Department proposed to lead from Mr. Templeton would have involved disclosure of the contents of the Remuneration Submission.

12. Counsel who appeared for the Department before the Tribunal submitted that Mr. Burchill, his counsel and instructing solicitor should not be present during that part of the hearing held in private. Counsel for Mr. Burchill submitted to the contrary. The Deputy President then made the ruling pursuant to paras. 58C(3)(a) and (b) of the FOI Act, the terms of which were set out earlier, whereupon the Department sought this review of the Tribunal's decision under the ADJR Act. In the meantime the proceeding before the Tribunal has been adjourned pending the result of this application for review.

13. The grounds of the application for review under the ADJR Act need not be set out. They echo certain of the grounds of review set out in s. 5 of the ADJR Act, in particular, that the making of the decision was an improper exercise of the power conferred by the FOI Act in that the Department failed to take into account or into any real account relevant considerations in the making of the decision. The particulars given in support of the ground include particulars (c) and (f) which read as follows:

"(c) Section 64 generally and section 58E
specifically of the F.O.I. Act give the
first-named Respondent limited powers of
inspection of exempt documents, and the power
had not been exercised by him when he made the
decision and therefore he had not reached the
state of non-satisfaction referred to therein."
"(f) The disclosure of the proposed evidence even
to the second-named Respondent's Counsel and
Solicitors would defeat the purpose of the
protection given by the F.O.I. Act to the
submission."

14. The other grounds of review, numbered 2, 4, 5, 6 and 7, were abandoned during the hearing before this Court.

15. Various questions were argued before us, but two critical questions emerged in the course of argument: first, whether the certificate given by Mr. Codd on 20 October 1988 is a valid certificate and; second, whether, assuming the certificate is valid, it is competent for the Tribunal to allow evidence to be given before it which would reveal the contents of the parts of the Remuneration Submission which were the subject of the certificate.

16. Before turning to the questions it is necessary to refer to the relevant provisions of the FOI Act.

17. The object of the FOI Act is stated in s. 3 in these terms:

"3(1) The object of this Act is to extend as far
as possible the right of the Australian community
to access to information in the possession of the
Government of the Commonwealth by -
(a) making available to the public information
about the operations of 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."

18. Section 11 provides that, subject to the Act, every person has a legally enforceable right to obtain access in accordance with the Act to (a) a document of an agency, other than an exempt document; or (b) an official document of a Minister, other than an exempt document.

19. An "agency" is defined by sub-s. 4(1) (the interpretation section) as meaning a Department or a prescribed authority. "Department" is defined a meaning a department of the Australian Public Service that corresponds to a department of State of the Commonwealth. Nothing turns on the definition of "prescribed authority" for present purposes. An "exempt document" is defined as meaning, inter alia, a document which, by virtue of a provision of Part IV, is an exempt document. "Exempt matter" is defined as meaning matter the inclusion of which in a document causes the document to be an exempt document.

20. Section 14 provides that nothing in the Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents) otherwise than as required by the Act, where they can properly do so or are required by law to do so.

21. Section 15 provides that a person who wishes to obtain access to a document of an agency or an official document of a Minister may make a request in writing to the agency or Minister for access to the document.

22. Where a request is made in writing and in accordance with the requirements of the relevant parts of s. 15 by a person to an agency or a Minister for access to a document and the regulated charge is paid, the person shall be given access to the document in accordance with the Act: s. 18.

23. Part IV deals with "exempt documents". There is set forth in Part IV a series of categories of documents which are "exempt documents" including the following:-
. documents affecting national security, defence or international relations (s. 33)
. documents affecting relations with States (s. 33A)
. Cabinet documents (s. 34) - the category with which this case is concerned
. Executive Council documents (s. 35)
. internal working documents - that is internal to the functions of an agency or Minister of the Federal Government (s. 36)
. documents affecting enforcement of the law and protection of public safety (s. 37)
. documents to which secrecy provisions of 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 business or professional affairs of an organisation or undertaking (s. 43)
. documents affecting the 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).

24. In the case of documents affecting national security, defence or international relations (s. 33), documents affecting relations with States (s. 33A); Cabinet documents (s. 34); Executive Council documents (s. 35); and internal working documents (s. 36), the FOI Act makes provision for the issue of a certificate either by the relevant Minister or Secretary (in the case of Cabinet documents (s. 34) by the Secretary to the Department of the Prime Minister and Cabinet) certifying that the document is of the relevant kind. It is then provided that such a certificate establishes conclusively, subject to the operation of Part VI, that it is an exempt document of that kind.

25. Section 34 should be set out in full. It reads as follows:

"34.(1) A document is an exempt document if it is -
(a) a document that has been submitted to the
Cabinet for its consideration or is proposed
by a Minister to be so submitted, being a
document that was brought into existence for
the purpose of submisson for consideration by
the Cabinet;
(b) an official record of the Cabinet;
(c) a document that is a copy of, or of a part
of, or contains an extract from, a document
referred to in paragraph (a) or (b); or
(d) a document the disclosure of which would
involve the disclosure of any deliberation or
decision of the Cabinet, other than a
document by which a decision of the Cabinet
was officially published.
(1A) This section does not apply to a document (in
this sub-section referred to as a 'relevant
document') that is referred to in paragraph (1)(a),
or that is referred to in paragraph (1)(b) or (c)
and is a copy of, or of part of, or contains an
extract from, a document that is referred to in
paragraph (1)(a), to the extent that the relevant
document contains purely factual material unless -
(a) the disclosure under this Act of that
document would involve the disclosure of any
deliberation or decision of the Cabinet; and
(b) the fact of that deliberation or decision has
not been officially published.
(2) For the purposes of this Act, a certificate
signed by the Secretary to the Department of the
Prime Minister and Cabinet certifying that a
document is one of a kind referred to in a
paragraph of sub-section (1) establishes
conclusively, subject to the operation of Part VI,
that it is an exempt document of that kind.
(3) Where a document is a document referred to in
paragraph (1)(c) or (d) by reason only of matter
contained in a particular part or particular parts
of the document, a certificate under sub-section
(2) in respect of the document shall identify that
part or those parts of the document as containing
the matter by reason of which the certificate is
given.
(4) For the purposes of this Act, a certificate
signed by the Secretary to the Department of the
Prime Minister and Cabinet certifying that a
document as described in a request would, if it
existed, be one of a kind referred to in a
paragraph of sub-section (1) establishes
conclusively, subject to the operation of Part VI,
that, if such a document exists, it is an exempt
document of that kind.
(5) Where a certificate in accordance with
sub-section (4) has been signed in respect of a
document as described in a request, the decision on
the request may be a decision that access to a
document as described in the request is refused on
the ground that, if such a document existed, it
would be an exempt document referred to in the
paragraph of sub-section (1) that is specified in
the certificate.
(6) A reference in this section to the Cabinet
shall be read as including a reference to a
committee of the Cabinet."

26. The next relevant part of the FOI Act is Part VI titled "Review of Decisions". Section 55 provides that application may be made to the Administrative Appeals Tribunal for review of various classes of decisions including a decision refusing to grant access to a document in accordance with a request (para. 55(1)(a)).

27. Section 58 states the powers of the Tribunal in a proceeding under Part VI and, so far as relevant, the section provides as follows:-

"58.(1) Subject to this section, in proceedings
under this Part, the Tribunal has power, in
addition to any other power, to review any
decision that has been made by an agency or
Minister in respect of the request and to decide
any matter in relation to the request that, under
this Act, could have been or could be decided by
an agency or Minister, and any decision of the
Tribunal under this section has the same effect as
a decision of the agency or Minister.
(2) Where, in proceedings under this Act, it
is established that a document is an exempt
document, the Tribunal does not have power to
decide that access to the document, so far as it
contains exempt matter, is to be granted.
(3) Where there is force in respect of a
document a certificate under section 33, 33A, 34,
35 or 36, the powers of the Tribunal do not extend
to reviewing the decision to give the
certificate, but the Tribunal, constituted in
accordance with section 58B, may determine such
question in relation to that certificate as is
provided for in whichever of sub-sections (4), (5)
and (5A) applies in relation to that certificate.
(4) Where application is or has been made to
the Tribunal for the review of a decision refusing
to grant access to a document in accordance with a
request, being a document that is claimed to be an
exempt document under section 33, 33A, 34 or 35
and in respect of which a certificate (other than
a certificate of a kind referred to in sub-section
(5A)) is in force under that section, the Tribunal
shall, if the applicant so requests, determine the
question whether there exist reasonable grounds
for that claim.
(5) ..."

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

29. Where the Minister makes a decision under sub-s. 58A(1) to revoke a certificate in a case where the certificate was given under sub-s. 34(2), the claim that the document to which the certificate relates is an exempt document shall be taken for the purposes of the FOI Act to have been withdrawn (sub-s. 58A(2). Where the Minister makes a decision under sub-s. 58A(1) not to revoke the certificate he shall cause notice in writing of the decision to be furnished to the applicant forthwith and cause a copy of the notice to be laid before each House of the Parliament within 5 sitting days of that House after the notice is so furnished. Such a notice shall state the findings of the Minister giving the notice on any material question of fact, the material on which those findings were based and the reasons for the decision (sub-ss. 58A(3) and (4)).

30. Section 58B states that, where a request is made to the Tribunal in accordance with sub-s. 58(4), (5) or (5A), the Tribunal shall be constituted, for the purposes of any proceeding for the determination of the question to which the request relates, by three presidential members or a presidential member alone (sub-ss. 58B(1) and (2)).

31. Sub-section 58C provides that the section has effect notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975 (sub-s. 58C(1)). Section 58C, so far as relevant, provides:

"58C(1) ...
(2) At the hearing of a proceeding referred to
in sub-section 58B(1), the Tribunal -
(a) shall hold in private the hearing of any
part of the proceeding during which evidence
or information is given, or a document is
produced, to the Tribunal by -
(i) an agency or an officer of an agency;
(ii) a Minister or a member of the staff of
a Minister; or
(iii) a member, an officer, or a member of
the staff, of a body referred to in
sub-section 7(1) or the person
referred to in that sub-section,
or during which a submission is made to the
Tribunal by or on behalf of an agency or
Minister, being a submission in relation to
the claim -
(iv) in the case of a document in respect
of which there is in force a
certificate under sub-secton 33(2) or
33A(2) or section 34 or 35 - that the
document is an exempt document;
(v) in the case of a document in respect
of which there is in force a
certificate under section 36 - that
the disclosure of the document would
be contrary to the public interest; or
(vi) in the case where a certificate is in
force under sub-section 33(4) or
33A(4) - that information as to the
existence or non-existence of a
document as described in a request
would, if contained in a document of
an agency -
(A) in a case where the certificate
was given under sub-section 33(4)
- cause the disclosure under this
Act of that document of an agency
to be contrary to the public
interest for a reason specified
in sub-section 33(1); or
(B) in a case where the certificate
was given under sub-section
33A(4) - cause that document of
an agency to be an exempt
document under section 33A; and
(b) subject to sub-section (4), shall hold the
hearing of any other part of the proceeding
in public.
(3) Where the hearing of any part of a
proceeding is held in private in accordance with
sub-section (2), the Tribunal -
(a) may, by order, give directions as to the
persons who may be present at that hearing;
and
(b) shall give directions prohibiting the
publication of -
(i) any evidence or information given to
the Tribunal;
(ii) the contents of any documents lodged
with, or received in evidence by, the
Tribunal; and
(iii) any submission made to the Tribunal,
at that hearing.
(4) ...
(5) A direction given by the Tribunal under
paragraph (3)(b) or (4)(b), does not prevent
a person referred to in sub-paragraph
(2)(a)(i), (ii) or (iii) from disclosing, in
the course of the performance of his duties,
any matter to any other person."

Section 58E provides:

"58E(1) In any proceedings before the Tribunal
under this Act in relation to a document in
respect of which there is in force a certificate
under section 33, 33A, 34, 35 or 36, the Tribunal
is entitled to require the production of the
document in accordance with this section and not
otherwise.
(2) Where, in considering a question referred
to in sub-section 58(4), (5) or (5A) in relation
to a document, the Tribunal is not satisfied, by
evidence on affidavit or otherwise, that there
exist reasonable grounds for the claim to which
the question relates, the Tribunal may require the
document to be produced for inspection by the
Tribunal as constituted for the purposes of the
proceeding.
(3) After an inspection of a document under
this section the Tribunal shall return the
document to the person by whom it was produced
without permitting any person who is not a member
of the Tribunal as constituted for the purposes of
the proceeding, or a member of the staff of the
Tribunal in the course of the performance of his
duties as a member of that staff, to have access
to the document or disclosing the contents of the
document to any such person."

Section 61 provides:

"61. In proceedings under this Part, the agency or
Minister to which or to whom the request was made
has the onus of establishing that a decision given
in respect of the request was justified or that
the Tribunal should give a decision adverse to the
applicant."

Section 63 is in the following terms:

"63(1) In proceedings under this Part, the
Tribunal shall make such order or orders under
sub-section 35(2) of the Administrative Appeals
Tribunal Act 1975 as it thinks necessary having
regard to the nature of the proceedings and, in
particular, to the necessity of avoiding the
disclosure to the applicant of -
(a) exempt matter contained in a document to
which the proceedings relate; or
(b) information of the kind referred to in
sub-section 25(1).
(2) Notwithstanding anything contained in the
Administrative Appeals Tribunal Act 1975 -
(a) the Tribunal shall not, in its decision, or
reasons for a decision, in a matter arising
under this Act, include any matter or
information of a kind referred to in
sub-section (1); and
(b) the Tribunal may receive evidence, or hear
argument, in the absence of the applicant or
his representative where it is necessary to
do so in order to prevent the disclosure to
the applicant of matter or information of a
kind referred to in sub-section (1)."

Section 64 provides:

"64(1) Where there are proceedings before the
Tribunal under this Act in relation to a document
that is claimed to be an exempt document, section
37 of the Administrative Appeals Tribunal Act 1975
does not apply in relation to the document but if
the Tribunal is not satisfied, by evidence on
affidavit or otherwise, that the document is an
exempt document it may require the document to be
produced for inspection by members of the Tribunal
only and if, upon the inspection, the Tribunal is
satisfied that the document is an exempt document,
the Tribunal shall return the document to the
person by whom it was produced without permitting
any person other than a member of the Tribunal as
constituted for the purposes of the proceeding, or
a member of the staff of the Tribunal in the
course of the performance of his duties as a
member of that staff, to have access to the
document or disclosing the contents of the
document to any such person.
(2) The Tribunal may require the production,
for inspection by members of the Tribunal only, of
an exempt document for the purpose of determining
whether it is practicable for an agency or a
Minister to grant access to a copy of the document
with such deletions as to make the copy not an
exempt document and, where an exempt document is
produced by reason of such a requirement, the
Tribunal shall, after inspection of the document
by the members of the Tribunal as constituted for
the purposes of the proceeding, return the
document to the person by whom it was produced
without permitting any person other than such a
member of the Tribunal, or a member of the staff
of the Tribunal in the course of the performance
of his duties as a member of that staff, to have
access to the document or disclosing the contents
of the document to any such person.
(3) Notwithstanding sub-sections (1) and (2),
but subject to sub-section (4), the Tribunal is
not empowered, in any proceedings other than
proceedings to determine a question referred to in
sub-section 58(4), (5) or (5A), to require -
(a) the production of a document in respect of
which there is in force a certificate under
section 33, 33A, 34, 35 or 36; or
(b) the giving of information in respect of
which a certificate is in force under
sub-section 33(4) or 33A(4).
(4) Where a certificate of a kind referred to
in paragraph (3)(a) identifies a part or parts of
the document concerned in the manner provided in
sub-section 33(3), 34(3), 35(3) or 36(4),
sub-section (3) does not prevent the Tribunal from
requiring the production, in any proceedings
before the Tribunal under this Act in relation to
the document, of a copy of so much of the document
as is not included in the part or parts so
identified.
(5) Sub-sections (1) and (2) apply in relation
to a document in the possession of a Minister that
is claimed by the Minister not to be an official
document of the Minister as if references in those
sub-sections to an exempt document were references
to a document in the possession of a Minister that
is not an official document of the Minister.
(6) Sub-section (1) or (2) does not operate so
as to prevent the Tribunal from causing a document
produced in accordance with that sub-section to be
sent to the Federal Court of Australia in
accordance with section 46 of the Administrative
Appeals Tribunal Act 1975, but, where such a
document is so sent to the Court, the Court shall
do all things necessary to ensure that the
contents of the document are not disclosed
(otherwise than in accordance with this Act) to
any person other than a member of the Court as
constituted for the purpose of the proceeding
before the Court or a member of the staff of the
Court in the course of the performance of his
duties as a member of that staff."

Section 65 provides:

"In proceedings before the Tribunal under this
Part, evidence of a certificate under section 33,
33A, 34, 35 or 36, including evidence of the
identity or nature of a document to which the
certificate relates, may be given by affidavit or
otherwise and such evidence is admissible without
production of the certificate or of a document to
which it relates.

32. As the sections of the Act earlier set out show, the Act provides two separate streams of procedure for dealing with claims for exemption, although they overlap to some extent. In one case the Tribunal's task is to determine whether the document which is claimed to be an exempt document is an exempt document. The other case, with which the present case is concerned, arises where a conclusive certificate has been signed pursuant to s. 33, 33A, 34 or 35 where the Tribunal's task is to determine the question whether there exist reasonable grounds for the claim that the document is an exempt document under the relevant section.

33. At the outset of argument the Bench raised with counsel the question of the validity of the certificate of Mr. Codd of 20 October 1988. No party sought to challenge the validity of the certificate, but in our opinion the validity of the certificate is fundamental to the jurisdiction of the Tribunal to hear the proceeding before it under s. 58 of the FOI Act. In this case the application for review before the Tribunal had commenced before the certificate was issued by Mr. Codd, but the nature of the proceeding and the powers of the Tribunal changed upon the issue of the certificate by reason of the operation of sub-ss. 58(3) and (4). The powers of the Tribunal do not extend to reviewing the decision to give the certificate; but the Tribunal, constituted in accordance with s. 58B, has before it an application for review of the decision refusing to grant access to the Remuneration Submission which is a document that is claimed to be an exempt document under s. 34 and in respect of which the certificate is in force. The Tribunal is therefore required by sub-s. 58(4) to determine the question whether there exist reasonable grounds for that claim. If the certificate is invalid the Tribunal has no jurisdiction to determine that question. The necessity to determine the question of the validity of the certificate is demonstrated on the hypothesis that, if this Court were not to set aside the decision of the Tribunal and proceeded to dismiss the application for review by the Department, the proceeding before the Tribunal would then continue and the Tribunal would consider whether there existed reasonable grounds for the claim that the document was an exempt document, an inquiry which would have no legal foundation because of the invalidity of the certificate. We propose therefore to deal first with the question of the validity of the certificate.

34. In our opinion for a certificate to be of the kind referred to in sub-s. 34(2), namely, a certificate certifying that a document is one of a kind referred to in a paragraph of sub-section (1) of that section, requires that the particular part of sub-s. (1) upon which reliance is placed be specified in the certificate. It is fundamental for the validity of the certificate that its reader can discern from its face, when read in conjunction with s. 34, the particular kind of document in respect of which the exemption has been claimed and the certificate issued. In the present case the certificate says that the document is "of a kind referred to in paras. 34(1)(c) and 34(1)(d)" of the FOI Act. The description thus means that the document may be any one or more of the following:
. "a copy of" or "a part of" or "contain an extract from" "a document that has been submitted to the Cabinet for its consideration" or "a document that is proposed by a Minister to be so submitted" or "an official record of the Cabinet" or "a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet".

35. The certificate in our view is so uncertain in its description as to render it invalid. Nor is it capable of severance into that which is valid and that which is invalid. Sub-section 58(4) makes this plain because the jurisdiction of the Tribunal is to determine the question whether there exists reasonable grounds for the claim that the document is an exempt document under s. 34 and in respect of which the certificate is in force under that section, and the jurisdiction of the Tribunal cannot rest on uncertain foundations.

36. In the course of argument it became common ground that the certificate was intended to and could encompass only a document within para. 34(1)(d), namely, "a document the disclosure of which would involve the disclosure of a deliberation or decision of Cabinet", but this concession in argument before this Court is of no relevance to the determination of the validity of the certificate.

37. It follows that the certificate is bad. That is sufficient to dispose of the whole proceeding; but as most of the argument centred on questions other than the validity of the certificate we shall deal with them.

38. The first of the remaining questions is whether, assuming the certificate is valid for, the Tribunal is entitled to direct that, until it further directs Mr. Burchill be excluded from the hearing of the application before the Tribunal, but that his counsel and solicitor may remain.

39. The scheme of the FOI Act in the case of documents for which exemption is claimed and which are the subject of a conclusive certificate (those relating to national security (s. 33), relations with States (s. 33A), Cabinet documents (s. 34) or Executive Council documents (s. 35)) is that the function of the Tribunal, when conducting a proceeding by way of review of the decision refusing to grant access to the document in question, is converted into the determination of the question whether there exists reasonable grounds for the claim that the document is an exempt document (sub-s. 58(4)). There are indicia in the Act which lead us to conclude that there is an evident legislative purpose that, where there is a conclusive certificate in force, the document which is the subject of the claim for exemption shall not be revealed to persons who are present at the hearing including the applicant for review, his witnesses, agents or legal representatives, but excepting the Minister or agency which is represented at the hearing.

40. The hearing of the request for review of the decision to refuse access is to take place in public; but the Tribunal must hold in private the hearing or any part of it during which (a) evidence or information is given or the document that is claimed to be an exempt document is produced to the Tribunal by an agency or officer of the agency or the Minister or member of his staff or a member, officer or member of staff of a body referred to in sub-s. 7(1) or the person referred to in that sub-section or (b) a submission is made to the Tribunal by or on behalf of the agency or Minister, being a submission in relation to the claim that the document is an exempt document under s. 54 (sub-s. 58C(2)). The Tribunal is then required by sub-s. 58C(3) to give directions as to (a) the persons who may be present at the hearing and (b) prohibiting the publication of evidence or information given to the Tribunal, the contents of documents lodged with or received in evidence by the Tribunal and submissions made to the Tribunal at that hearing.

41. Section 58E is an important provision, the terms of which are set out earlier. In proceedings before the Tribunal in relation to a document in respect of which there is in force a certificate under certain sections including s. 34, the Tribunal is entitled to require the production of the document in accordance with s. 58E and not otherwise. Where the Tribunal, in considering a question referred to in sub-s. 58(4), (5) or (5A) in relation to a document, is not satisfied that there exist reasonable grounds for the claim to which the question relates, it may require the production to it of the document in question (sub-s. 58E(2)). The Tribunal may then inspect the document for the purpose of ruling on whether the claim for exemption has been made out or not. After the document has been inspected the Tribunal is bound to return it to the person by whom it was produced and may not permit any person who is not a member of the Tribunal as constituted for the purposes of the relevant proceeding or a member of the staff of the Tribunal in the course of the performance of his duties as a member of that staff to have access to the document or to disclose its contents to any such person (sub-s. 58E(3)).

42. The Tribunal is required by sub-s. 63(1), the terms of which are set out earlier, to avoid there being disclosure to the applicant for review of "exempt matter" contained in the document to which the proceedings relate. "Exempt Matter" means, as mentioned earlier, matter the inclusion of which in a document causes the document to be an exempt document, namely, its contents.

43. If the Tribunal is not prima facie satisfied that the document is an exempt document it may require the document to be produced for inspection by its members. If, upon inspection of the document, the Tribunal is satisfied that it is an exempt document it must then return the document to the person by whom it was produced without permitting any person, other than a member of the Tribunal as constituted for the purposes of the proceeding or a member of the Tribunal's staff acting in the course of his duties, to have access to the document or disclosing the contents of the document to any such person (sub-s. 64(1)). Other constraints upon the Tribunal's powers to require production of an exempt document and to inspect it are set out in s. 64, the terms are of which recorded earlier.

44. Where the Tribunal determines that there do not exist reasonable grounds for the claim that the document is an exempt document, and the document is returned to the person by whom it was produced, the appropriate Minister is then required by s. 58A not later than 28 days, after that determination of the Tribunal is communicated to him, to revoke the certificate or not revoke it. If he makes the decision to revoke it then the claim that the document is an exempt document is taken to be withdrawn. Where he makes the decision not to revoke it then the applicant must be notified in writing of that decision and a copy of the notice must be laid before each House of the Parliament as required by s. 58A. Where the Tribunal decides that there do exist reasonable grounds for the claim it is required to return the document to the person by whom it was produced with the additional constraints imposed by sub-s. 58E(3) prohibiting any persons (except the excepted class who are either members of the Tribunal as constituted for relevant purposes or members of the staff of the Tribunal) having access to the document or disclosing its contents to any person.

45. The Act thus plainly evinces the purpose that the Tribunal may examine a document which is the subject of a conclusive certificate solely for the purpose of determining whether the reasonable basis for the claim has been established and that the Tribunal is not authorised to permit any persons except its own members who constitute the Tribunal for the purpose of the proceeding before it, its staff, the relevant agency or Minister or their legal representatives, to be present when the document is inspected or its contents revealed.

46. In the present case the Tribunal proceeded on a wrong basis. It assumed that it was entitled to allow Mr. Burchill, his witnesses and legal representatives to be present during the private hearing (though it chose in fact to allow only the legal representatives to be present) when evidence was to be given as to the contents of the document the subject of the claim for exemption which would have revealed at least exempt matter. That assumption was misconceived. We observe at this point that there must be very few cases where the evidence to support the claim that there is a reasonable basis for it in respect of Cabinet documents would go beyond an affidavit of the kind which Mr. Templeton swore himself.

47. It is arguable that the Tribunal may itself not inspect the document or inform itself of its contents even for the purpose of performing its functions under s. 58E or even if the relevant Minister or agency voluntarily offers the exempt document or exempt matter to the Tribunal in the course of deciding whether it is satisfied as to the reasonable basis of the claim. We need not decide this. It is sufficient to say for present purposes that, whatever may be the answer to that question, the Tribunal is required to exclude the applicant, his witnesses and his legal representative or agents from the hearing when evidence is given or submissions made which will involve disclosure of the document or its contents and from access to the transcript thereof. We agree with the following statements by Davies J. in Re Howard and Treasurer of the Commonwealth of Australia 7 ALD 626 at 638:

"If a conclusive certificate is given with respect
to a document the disclosure of which it is
thought would, or could reasonably be expected to,
cause damage to the security of the Commonwealth
or the defence of the Commonwealth or the
international relationships of the Commonwealth
within the meaning of s33 of the FOI Act or that
the document was a Cabinet document as specified
in s34 of the FOI Act or an Executive Council
document as specified in s35 of the FOI Act there
may be very good reasons for keeping the document
entirely confidential and therefore for seeking a
private hearing before the Tribunal in the absence
of the applicant. In many such cases, the
production of the document itself to the Tribunal
may not be necessary, for adequate evidence of the
nature of the document given in private could
satisfy the Tribunal of its exemption. There is a
clear need for absolute secrecy in some cases and
for such cases s58C makes appropriate provision."

48. Decisions of the Supreme Court of the United States of America show a similar approach to the Freedom of Information legislation of the U.S.A. to the approach which commends itself to us with respect to the Act: see Agee v Central Intelligence Agency (1981) 517 F Supp 1335 and Arieff v U.S. Department of the Navy (1983) 712 F 2d 1462 at 1468-1471.

49. We were referred to a number of cases in argument where there was discussion as to the circumstances in which counsel and solicitors may be excluded from private hearings before the Tribunal. We do not regard them as helpful in the present case. Confidentiality orders which involve directions being given to counsel or solicitors or undertakings given by them not to disclose confidential information are usually in the context of cases where an issue of confidentiality arises which must be resolved in the case and where the protection of the confidence is essential to the cause of action. The Judge must hear or see the confidential material; and it would be impossible for the proper conduct of the case and unfair to the parties if counsel or solicitors and sometimes expert witnesses did not have access to the confidential material. Such cases cannot otherwise be properly conducted.

50. The Tribunal acted correctly in excluding Mr. Burchill from the private hearing before it, but it acted incorrectly in permitting his legal representatives to remain.

51. In the circumstances the application for review under the ADJR Act should succeed and the decision of the Tribunal should be set aside. We would order Mr. Burchill to pay the costs of the Department of this application and make no order as to the costs of the first respondent.